Products Liability Law Daily Reinstated expert testimony in Accutane® litigation restores 2K cases
Monday, July 31, 2017

Reinstated expert testimony in Accutane® litigation restores 2K cases

By Kathleen Bianco, J.D.

In a multi-county litigation stemming from injuries allegedly caused by the acne medication Accutane®, the New Jersey appeals court held that a state trial court had misapplied its discretion when it found that the methodologies used by two plaintiffs’ expert witnesses were unreliable and inadmissible. In reaching this conclusion, the appellate court opined that based on the record, the plaintiffs’ experts provided well-explained scientific reasons for analyzing the available evidence differently from the defense experts’ analysis and for relying more heavily on different evidence than that relied on by the defense experts. Accordingly, the testimony should be presented to the jury to weigh the witnesses’ credibility and determine the veracity of the information provided (In re: Accutane Litigation, July 28, 2017, Reisner, S.).

In May 2005, the New Jersey Supreme Court designated Civil Action No. 271 as multi-county litigation (MCL) to centralize management of all Accutane litigation in the state. Plaintiffs in 2076 of these product liability cases alleged that they developed Crohn’s disease as a result of taking Accutane, a prescription acne drug manufactured by Hoffman-La Roche Inc. and La Roche Laboratories. Following a Kemp hearing, the trial court granted an omnibus motion by the defense barring plaintiffs’ experts—a gastroenterologist whose testimony was proffered on the issue of general causation, and a statistician who was to assess existing studies examining the association between isotretinoin and Crohn’s disease—from testifying that the epidemiology studies relied upon by the defense were flawed and unreliable, and that Accutane can cause Crohn’s disease [see Products Liability Law Daily’s February 25, 2015 analysis]. In the absence of the experts’ testimony, the trial court dismissed all 2076 MCL claims with prejudice [see Products Liability Law Daily’s May 13, 2015 analysis]. The plaintiffs filed a timely appeal challenging the court’s exclusion of the expert testimony, arguing that the court overreached its discretion because the methodologies used by the experts were reliable and scientifically sound.

Standard of review. A trial court’s exclusion of expert testimony must be reviewed under an abuse-of-discretion standard. A judge’s role is to serve as a gatekeeper to ensure that expert testimony is both reliable and relevant. The question of whether the expert’s theory is correct is for a jury to determine, and when a judge takes that question away from the jury, he or she is making himself or herself the trier of fact instead of a gatekeeper. In the case at hand, the appellate court determined that the trial judge misapplied his discretion by substituting his own judgment for that of a jury.

Expert witness admissibility standard. In order to determine whether an expert witness’s testimony is admissible, the court must look at whether the scientific, technical, or other specialized knowledge offered by the expert will assist the trier of fact to understand the evidence or to determine a fact at 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 if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

In this case, after undertaking an exhaustive review of the testimony proffered by the plaintiffs’ experts, which included detailed explanations as to why they chose not to rely upon the epidemiology studies relied upon by the defense, the state appellate court determined that the testimony was consistent with sound scientific principles and methodologies accepted in the medical and scientific community. Moreover, the appellate court found that the trial court’s determination that the epidemiology studies trumped all other scientific data was also misguided. The appellate court went on to opine that its decision did not imply that the challenged testimony was correct, only that it was admissible and should be heard by a jury who would ultimately determine the weight to be afforded to the conflicting testimony provided by the experts. Accordingly, the order granting the exclusion of testimony and the resulting summary judgment motion in favor of the manufacturer were reversed and remanded to the trial court for further proceedings.

The cases are Nos. A-4698-14TI and A-0910-16T1.

Attorneys: David R. Buchanan (Seeger Weiss LLP) for Bruce D. Greenberg. Alan Klein (Duane Morris), Russell L. Hewit (Dughi, Hewit & Domalewski, PC), and Paul W. Schmidt (Covington & Burling LLP) for Hoffmann-La Roche, Inc., and Roche Laboratories Inc.

Companies: Hoffmann-La Roche, Inc.; Roche Laboratories Inc.

MainStory: TopStory ExpertEvidenceNews DrugsNews NewJerseyNews

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