In re Accutane Litigtion, No. A-4952-16T1, 2020 N.J. Super. Unpub. LEXIS 123 (App. Div. Jan. 17, 2020)

Plaintiffs’ experts’ opinions barred because they disregarded the ‘hierarchy of scientific evidence.’

Pharmaceutical company Hoffmann-LaRoche Inc. secured a win in the long-running New Jersey Accutane litigation. The New Jersey Appellate Division recently affirmed the trial court’s decision to bar two of plaintiffs’ experts from testifying that the acne drug could cause ulcerative colitis, a type of inflammatory bowel disease.

The Appellate Division relied on the 2018 New Jersey Supreme Court decision In re Accutane Litigation, 234 N.J. 340 (2018), which arose from the same multi-county litigation, in reaching its decision and dismissal of more than 3,000 cases. The court in this most recent appeal said that the testimony from a gastroenterologist and an epidemiologist was properly barred as unreliable.

The Appellate Division agreed with the trial court’s reasoning that the “appropriate inquiry is not whether the [c]ourt thinks that the expert’s reliance on the underlying data was reasonable, but rather whether comparable experts in the field would actually rely on that information.” Applying that ‘medical evidence hierarchy,’ the trial court was found to have “engaged in the very same type of gatekeeping which the Supreme Court approved in its prior decision.” The 2018 Supreme Court decision reconciled New Jersey’s framework for analyzing the reliability of expert testimony set forth in N.J.R.E. 702 and 703 with the federal standard set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). In the 2018 case, the court incorporated Daubert’s factors “for use by our courts” in assessing expert testimony reliability. The court did not, however, go so far as to declare New Jersey a “Daubert jurisdiction.”

The Appellate Division ruling noted that the plaintiffs’ expert gastroenterologist’s opinion relied extensively on non-epidemiological evidence, despite an almost uniform body of epidemiological evidence that found no association between Accutane and ulcerative colitis. In doing so, the Appellate Division found that this expert failed to apply the methodology followed by other experts in the field. Additionally, although the plaintiffs’ expert epidemiologist’s analysis of other studies found a statistically significant association between Accutane and ulcerative colitis, the plaintiffs’ expert did not include all relevant studies.

While this is an unpublished decision, there are still practical implications. This decision is persuasive because of its well-reasoned and thorough discussion of the reliability of expert methodology. Parties seeking to exclude unsubstantiated scientific expert testimony that fails to the follow the ‘hierarchy of scientific evidence’ may rely on this decision for support.

 

Case Law Alerts, 2nd Quarter, April 2020 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2020 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.