On August 1, 2018 the New Jersey Supreme Court issued its opinion in In re Accutane Litigation, 2018 WL

3636867 wherein the Court abandoned Frye’s “General Acceptance” requirement for admission of

scientific evidence under Rule 702. In doing so, it extended the gatekeeping function of the trial court

and obligated it to ensure that an expert’s testimony was both reliable and relevant before admitting it

to the jury.

When considering admissibility of scientific evidence the Court adopted the Daubert standard wherein

the Court may consider whether the theory or technique (1) has been tested; (2) whether it has been

subject to peer review or publication; (3) any standards governing its application; and (4) its level of

acceptance in the scientific community

The Court opined that the Daubert factors for assessing the reliability of expert testimony will aid New

Jersey trial courts in their role as the gatekeeper of scientific expert testimony in civil cases. Under the

test in Accutane a trial court must determine “whether the scientific community would accept the

methodology employed by the expert and reviewed the underlying facts and data” relied upon by the

expert. The trial court’s finding relating to the admissibility of an expert will only be overturned if an

Appellate Court finds an abuse of discretion, even if it would have reached a different conclusion in the

first instance.

The Accutane opinion will undoubtedly become a focal point in New Jersey litigation involving expert

opinion but as in the past, not every case involving expert testimony necessitates a Daubert hearing. In

the run of the mill medical malpractice cases for example, the reliability and relevance of testimony by

physicians is often not a significant issue. In cases involving novel expert testimony, however, Daubert

and its progeny become the center of attention. The trial court will play a much more significant role as

gatekeepers of such expert testimony and their decisions will be reviewed under an abuse of discretion

standard.

We hope this will be of assistance when evaluating the strengths and opinions and the ultimate

admissibility of defense experts whose performance often times influences the ultimate outcome.