By Erin L. Peters
In New Jersey and other state and federal jurisdictions, we are often presented with expert reports opining as to a claimant’s liability and damages. These reports contain opinions and conclusions that must be evaluated for their admissibility. When performing this evaluation, it is important to consider the reliability of the proposed expert testimony. The determination of “reliability” has changed over the years and differs in state and federal court. It also varies greatly across jurisdictions. Here, we invite you to consider the standard of “reliability” in New Jersey: (1) where it began; (2) where it stands; and (3) where it may be going.
To understand and predict developments in New Jersey concerning the admissibility of expert testimony, it is important to understand the beginnings of these concepts. For most of the 20th century, both state and federal courts used the “general acceptance” standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The “general acceptance test” required the court to assess the “degree” of acceptance of a novel scientific technique in the field in which it belonged. Importantly, the judge did not need to understand a theory; rather, he or she was required to identify the field in which the scientific theory fell and survey the opinions of scientists. Under this test, expert opinion based on a scientific technique was only admissible when the technique was “generally accepted” as reliable in the relevant scientific community. This, of course, had both benefits and drawbacks. One of its strengths is that it is considered straightforward and relies mainly on the consensus within a scientific community, allowing judges to survey the opinions of scientists who are the most informed. However, critics argue it can be overly exclusive, as it could exclude potentially reliable evidence that has not yet achieved “general acceptance.” Moreover, it does not account for the reliability of generally accepted methodologies that are flawed. The “general acceptance test” is no longer the federal standard. However, it continues to be followed in some states, including New York and Pennsylvania. New Jersey began to withdraw from “the general acceptance test” in the early 1990s and has since completely abandoned it.
The federal shift away from “the general acceptance test” began in earnest in 1975 with the approval of several Rules of Evidence governing the admissibility of scientific evidence. These Rules included F.R.E. 702, which provided “[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.” This created essentially three specific requirements. First, the subject of the testimony had to be scientific, technical or otherwise contain specialized knowledge. Second, the knowledge had to assist the trier of fact to understand the evidence or determine a fact in issue. Third, the witness had to be qualified by knowledge, skill, experience, training or education.
Approximately 15 years later, the evolution of New Jersey law began. Specifically, two state cases in 1991 and 1992 shifted New Jersey’s exclusive reliance on the “general acceptance test” to a methodology-based approach. See Landrigan v. Celotex Corp., 127 N.J. 404 (1992) and Rubanick v. Witco Chem. Corp., 125 N.J. 421 (1991). The shift was somewhat limited, as both were toxic tort civil matters. These cases allowed the parties to present novel scientific evidence of causation if, after the trial court engaged in rigorous gatekeeping for reliability, the proponent persuaded the court of the soundness of the expert’s reasoning and methodology. In 2002, the application of this approach was extended beyond toxic tort matters in Kemp v. State of New Jersey, 174 N.J. 412 (2002).
On the federal side, in 1993, Frye was officially superseded by Daubert v. Merrell Down Pharmaceuticals, 509 U.S. 579 (1993). Daubert added two constraints to the original F.R.E. 702: the evidence sought to be introduced must be relevant and reliable. The focus shifted from the expert’s conclusions to the principles and methodology used by the expert. However, the three original considerations of F.R.E. 702 remained: (1) the subject of the expert’s knowledge; (2) the helpfulness of the expert’s testimony; and (3) the qualifications of the expert. In considering the helpfulness of the expert’s testimony, the Daubert Court created four factors for use. First, whether the theory or technique could be tested. Second, whether the theory was subject to peer review and publication. Third, the potential or known rate of error of the technique. Finally, the general acceptance of the theory or technique. Despite the development of the Daubert test, the decision was only binding on federal courts.
The 2000 amendment to F.R.E. 702 codified Daubert and added that an expert could only testify if the testimony was based upon sufficient facts or data, the testimony was the product of reliable principles and methods and the witness had applied the principles and methods. A subsequent amendment in 2023 added further requirements. First, the proponent of the evidence must establish all requirements by a preponderance of the evidence. Second, there must be a stronger link between the opinions and methods. Whereas the court initially believed this to be a proper topic for cross-examination, the court was now required to determine whether a specific opinion was more likely than not supported by an expert’s methodology. Thus, as the federal standards progressed, additional hurdles to admissibility continued to be added, signaling an abrupt departure from the “general acceptance test.”
Turning to New Jersey, the state rule of evidence continues to follow the original version of F.R.E. 702 without these safeguards from 1975. However, the case law itself revealed a demonstrable shift towards current federal standards. For example, State v. Kelly, 97 N.J. 178 (1984) held that the proponent must establish that the subject matter of the testimony is beyond the ken of the average juror; the field of inquiry must be at a state of the art such that the expert’s testimony could be sufficiently reliable; and the witness must have sufficient expertise to offer the intended testimony.
New Jersey’s jurisprudence over the past two decades has continued in this fashion. In 2002, the Supreme Court in Kemp v. State of New Jersey, 174 N.J. 412 (2002) extended the methodology-based approach in evaluating the admissibility of expert evidence beyond toxic tort cases. The Court held that this standard should apply whenever a medical cause-effect relationship has not been confirmed by the scientific community, but compelling evidence nevertheless suggests that such a relationship exists. This led to the development of the “Kemp Hearing,” a proceeding to determine the scientific soundness and reliability of experts’ opinions and testimony.
Further, New Jersey adopted Daubert in 2018 for civil cases, noting that consideration of the Daubert factors is useful in determining the admissibility of expert testimony. In the case of In re Accutane Litig., 234 N.J. 340 (2018), the Court considered whether New Jersey’s standard for assessing the reliability of expert witnesses needed clarification and whether the Daubert factors were helpful; both answers were “yes.” However, the Court balked at declaring New Jersey a “Daubert jurisdiction” and embracing the full body of Daubert cases. In essence, the Court believed that the “general acceptance test” was retained in New Jersey for reliability in criminal matters and that there was “no monolithic body of case law uniformly or even consistently applying Daubert” to aid its application. Such considerations are quickly becoming moot.
Within five years, the Supreme Court decided State v. Olenowski, 253 N.J. 133 (2023). The Olenowski Court acknowledged the shift away from Frye and concluded that Daubert offered a superior approach to evaluate the reliability of expert testimony. Thus, as of 2023, the Daubert factors, and not the “general acceptance test,” are used in criminal cases filed in the state of New Jersey. This is notable because one of the two hesitations for a “full embrace” of the Daubert test is now moot; New Jersey no longer retains the “general acceptance test” in criminal cases.
A further expansion of Daubert was demonstrated in Seger v. Consolidated Rail Corporation, No. A-1420-21 (App. Div. Oct. 13, 2023). In Seger, the matter was remanded for further proceedings when the trial court was charged with failing to adequately and entirely discuss all four Daubert factors. On appeal, the Court emphasized that trial courts must utilize a methodology-based test for reliability “similar” to the standard set forth in Daubert. Specifically, the proponent must demonstrate that the expert applies the scientifically recognized methodology in a way that others in the field practice the methodology. Second, if the proponent does not demonstrate the soundness of the methodology (both in its approach to reasoning and to its use of data from the perspective of others within the relevant scientific community) the court should exclude the evidence as unreliable. Here, the trial court erred by not addressing the four Daubert factors, which are “integral” for appellate review. While carefully referring to the Daubert factors as “a helpful but not necessary or definitive guide,” the Court reviewed them in full and provided further clarification as follows:
- Testing: Whether the scientific theory can be, or at any time has been, tested. This is a key question that relates closely to the dual components of the third factor (rate of error and standards).
- Review and Publication: Whether the scientific theory has been subjected to peer review and publication. Publication is one form of peer review, but it is not necessary. Submission for the scrutiny of the scientific community is a component of good science and increases the likelihood that substantive flaws in the methodology will be detected.
- Rate of Error and Standards: Whether there is any known or potential rate of error and whether there exist any standards for maintaining or controlling the technique’s operation.
- General Acceptance: Whether there exists a general acceptance in the scientific community about the scientific theory. While Frye is no longer a dispositive approach, it remains pertinent.
Seger was remanded for a “more fulsome analysis” of these factors and scheduled for a Kemp Hearing. Ultimately, it was settled prior to the Hearing. While its lengthy opinion is certainly persuasive, its overall impact could be limited by the fact that it is an unpublished decision.
The key takeaway is this: although New Jersey has not formally adopted Daubert, it no longer considers Frye dispositive. The shift away from Frye began in the 1990s and continues in earnest. Despite the Court’s stated hesitation for full adoption of the factors, it is anticipated that Daubert may very well become the law of the state of New Jersey given recent developments. From our perspective, the federal standard is favorable because it contains more stringent requirements for the admissibility of expert opinion. The court’s enhanced gatekeeping role may reduce the number of net opinions and unsupported reports and increase the viability of motions aimed at barring such experts. Tressler’s New Jersey team continues to monitor the evolution of the law and is dedicated to using all developments to the benefit of its clients both in the state and federal settings.
About Erin L. Peters
Erin L. Peters is senior counsel in Tressler's Litigation Practice Group in our Morristown, New Jersey office. Erin's practice focuses on the representation of insurers and insureds in both state and federal courts. Erin has 15 years of experience litigating complex defense matters in New Jersey and New York. Her extensive litigation experience includes handling complex defense and coverage matters in various practice areas, including premises liability, products liability, automobile negligence, wrongful death, dram shop, professional liability, intentional torts and employment practices liability.
In addition to the practice of law, Erin enjoys participating in seminars and speaking engagements. She has served as a panelist and moderator for a variety of seminars and webinars hosted by the New Jersey Institute for Continuing Legal Education and the New Jersey Defense Association. Click here to read Erin's full attorney bio.