A New Jersey state appeals court recently reversed the trial court’s summary judgment ruling in the consolidated Accutane litigation, reviving more than 2,000 cases. The Accutane Plaintiffs allege that Hoffman-LaRoche Ltd. (Roche) did not warn them that taking the acne medication could cause them to develop Crohn’s disease.

In February 2015, after several years of litigation, the trial court granted Roche’s motion to bar Plaintiffs’ experts from testifying that Accutane can cause Crohn’s disease, finding that their methodologies were scientifically unreliable and inadmissible. In its 2015 order, the trial court described one of the Plaintiffs’ experts as an “expert on a mission” and also stated the Plaintiffs were “cherry picking” evidence. The following May, the trial court dismissed all 2,076 claims.

This appellate decision affirms the vital role of the jury to weigh the credibility of expert witnesses. The appellate court found that the trial court went beyond its gatekeeping function and that the experts’ testimony should not have been excluded simply because they emphasized different evidence and produced different conclusions than Defense experts. Plaintiffs’ experts were not “cherry picking” evidence when they provided well-explained scientific reasons for analyzing the evidence differently from their Defense counterparts. The judge’s role is not to determine which set of experts produce the most plausible opinion, but only to ensure that expert testimony presented in court is based on sound scientific principles.

In New Jersey, the standard by which a court is to assess the admissibility of scientific opinions is governed by a modification of the Frye standard, as decided by the New Jersey courts in Landrigan v. Celotex Corp. and Kemp v. State of New Jersey. Following a Kemp hearing, which in New Jersey refers to a hearing in which the court hears arguments related to the admissibility of expert testimony, Judge Nelson C. Johnson barred two of the Plaintiffs’ experts from offering certain crucial opinions.

Specifically, the trial court barred Plaintiffs’ experts Dr. David Madigan, a statistician, and Dr. Arthur Asher Kornbluth, a gastroenterologist, from testifying that, 1) the epidemiology studies on which the Defendants relied were flawed and unreliable; and 2) that Accutane can cause Crohn’s disease. The trial court also directed the parties to prepare an order listing the lawsuits affected by the ruling, and subsequently issued an order dismissing the 2,076 cases with prejudice.

In a published opinion, the three-judge appellate panel reversed the trial court’s rulings and stated,

We agree with plaintiffs that the trial court went beyond its gatekeeping function…. The trial court took too narrow a view in determining whether the experts were using accepted scientific methodologies to analyze the evidence, and improperly determined the weight and credibility of the experts’ testimony. Among other things, the judge inappropriately condemned the experts for relying on relevant scientific evidence other than epidemiological studies, despite their plausible explanations for doing so. Consequently, we conclude that the trial court mistakenly exercised discretion in barring the experts’ testimony.

In September 2016, the same New Jersey trial judge, Nelson C. Johnson, similarly excluded expert testimony in a pretrial ruling and dismissed two talcum powder lawsuits. Those cases are now on appeal. Attorneys for Diana Balderrama and Brandi Carl argue that the trial court erred in excluding testimony from Dr. Graham Colditz and Dr. Daniel Cramer, two of the world’s leading cancer researchers, linking talcum powder and ovarian cancer. The appeal filed by Beasley Allen indicates that,

[T]he trial court’s decision to preclude the testimony turns New Jersey’s law of expert admissibility on its head. . .. The court substituted its own judgment for that of the scientists and usurped the role of the jury by holding what was in effect a bench trial on the issue of causation.

Johnson & Johnson had previously lost two talcum powder trials in St. Louis, and a total of three jury verdicts there against Johnson & Johnson totaled $197 million in 2016. In May, a St. Louis Circuit Court jury returned a $110.5 million verdict for a woman claiming use of Shower-to-Shower and Baby Powder products over four decades caused her ovarian cancer. The most recent verdict – amounting to $417 million, the largest ever – was returned by a California jury on Aug. 21. We wrote about the verdict in the Capital Comments Section of this issue.

The Accutane ruling provides some hope for the Ms. Balderrama and Ms. Carl, as the New Jersey appellate court considers their appeal. Hopefully, the decision of the appeals court to reinstate the Accutane cases is an indication of further rulings to come, particularly those related to the admissibility of expert opinions.

Sources: In re: Accutane Litigation, N.J. Super., (App. Div. 2017); FiercePharma; and Law360.com, PR Newswire and In re: Accutane Litigation, Docket No. A-4698-14T1, Superior Court of New Jersey Appellate Division (July 28, 2017)

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