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«May 6, 2014 Honorable Jamie D. Happas, J.S.C. Superior Court of New Jersey Middlesex County Courthouse 56 Paterson Street, Chambers 401 New ...»

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May 6, 2014

Honorable Jamie D. Happas, J.S.C.

Superior Court of New Jersey

Middlesex County Courthouse

56 Paterson Street, Chambers 401

New Brunswick, New Jersey 08903-0964

Re: Proposed Amendments to N.J.R.E. 104 and 702

Dear Judge Happas:

As president of the New Jersey Civil Justice Institute, I appreciate the Committee’s efforts in reviewing

our petition for updating New Jersey’s Rules of Evidence standard for expert testimony.

I understand from Judge Grant’s letter that the committee has been considering whether the current standard provides sufficient clarity and predictability in admissibility of expert testimony, and that you are also exploring the question of whether the existing standard contributes to other problems, such as attracting a disproportionate number of mass tort cases to New Jersey.

I would like to offer our assistance by sharing with you some of the materials that brought this issue to our attention.

Attached please find a solicitation letter from Weitz & Luxembourg in 2004, urging mass tort plaintiffs to consider filing Vioxx litigation in New Jersey state court in order to take advantage of the more relaxed standards for admittance of scientific evidence.

A study performed by McCarter & English in 2008 shows that Weitz & Luxembourg is not the only firm that got the message that New Jersey has weaker evidentiary standards. Data revealed that 93% of mass tort filings in New Jersey state courts were from out of state plaintiffs. McCarter revisited the study in 2012, and although they could not get data from every mass tort defendant that year, the data in the majority of cases indicated that little had changed. In fact, if anything, the national trend of additional states continuing to adopt some version of a Daubert standard would reinforce the incentive to file in the diminishing minority states who have not yet updated their rules.

Finally, I include for your use, some interesting academic work. Professor David Bernstein, among the nation’s most prolific experts on rules of evidence, and on Daubert in particular, has recently written a 112 West State Street | Trenton, NJ 08608 | 609-392-6557 http://www.civiljusticenj.org | info@civiljusticenj.org Formerly the New Jersey Lawsuit Reform Alliance useful overview of the evolution of admissibility rules. Please see “The Misbegotten Judicial Resistance to the Daubert Revolution,” his 2013 study on the subject.

Again, we appreciate the care and consideration that the Committee is devoting to this significant issue.

Please let us know if we can be of further assistance. This issue is of the utmost importance to our members, many of whom defend cases in many states and believe that his issue is critical to ensuring the continued fairness and predictability of litigation in NewJersey.

Sincerely yours, Marcus Rayner cc: The Honorable Carmen Messano, Chair, Committee on the Rules of Evidence

THE MISBEGOTTEN

JUDICIAL RESISTANCE

TO THE DAUBERT

REVOLUTION David Bernstein, George Mason University School of Law Notre Dame Law Review, Vol. 89, No. 1, pp. 27-70, 2013 George Mason University Law and Economics Research Paper Series

–  –  –

Until approximately thirty years ago, expert witnesses hired by parties to litigation in the United States could testify almost without limit about any relevant issue within the scope of their expertise.1 Beginning in the mids, federal law rapidly and radically evolved until by 2000 all expert testimony needed to pass a reliability test before it could be deemed admissible.2 Much of this evolution took place in toxic tort cases, in the context of broader debate about the efficiency and justice of toxic tort litigation.3 Controversy surrounded mass tort litigation involving the morning sickness drug Bendectin, silicone gel breast implants, and the herbicide Agent Orange, among other products and substances.4 © 2013 David E. Bernstein. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

* George Mason University Foundation Professor of Law, George Mason University School of Law. Prof. Bernstein thanks Michael Green, David Kaye, Nathan Schachtman, and two anonymous reviewers for their helpful comments. Generous funding for this Article was provided by the Law and Economics Center at the George Mason University School of Law.

1 See infra notes 27–9 and accompanying text.

2 See infra notes 50–9 and accompanying text.

3 Dozens of treatises and law review articles have been written about toxic tort litigation and attendant controversies. For a sampling of books on the subject, see, e.g., CARL F.

CRANOR, REGULATING TOXIC SUBSTANCES (1993) [hereinafter CRANOR, REGULATING]; CARL F. CRANOR, TOXIC TORTS (2006) [hereinafter CRANOR, TOXIC TORTS]; KENNETH R. FOSTER & PETER W. HUBER, JUDGING SCIENCE (1999); KENNETH FOSTER ET AL., PHANTOM RISK: SCIENTIFIC INFERENCE AND THE LAW (1993); JONATHAN HARR, A CIVIL ACTION (1995); PETER W.

HUBER, GALILEO’S REVENGE (1991); SHEILA JASANOFF, SCIENCE AT THE BAR (1995).





4 For books discussing some of these mass torts and the evidentiary issues they presented, see MARCIA ANGEL, SCIENCE ON TRIAL (1996); MICHAEL D. GREEN, BENDECTIN AND BIRTH DEFECTS (1996); JOSEPH SANDERS, BENDECTIN ON TRIAL (1998); PETER H.

SCHUCK, AGENT ORANGE ON TRIAL (1986); see generally Victor E. Schwartz & Cary Silverman, The Draining of Daubert and the Recidivism of Junk Science in Federal and State Courts, 35 HOFSTRA L. REV. 217, 224 (2006) (“It is not a coincidence that Daubert coincided with the emergence of toxic torts and the burgeoning use of experts in civil litigation.”).

2728 notre dame law review [vol. 89:1

Many courts ultimately determined that much of this litigation relied on causation theories that were not supported by sound scientific evidence.

This led to judicial rulings restricting the admissibility of expert testimony, which in turn created sufficient uncertainty and controversy to provoke Supreme Court intervention.5 In a period of six years, the Supreme Court issued the so-called Daubert trilogy of opinions—Daubert v. Merrell Dow Pharmaceuticals, Inc.,6 General Electric Co. v. Joiner,7 and Kumho Tire Co. v. Carmichael8—each of which tightened the standards for the admissibility of expert testimony.9 In 2000, an amendment to Federal Rule of Evidence 702 codified a test that allows experts to testify only when their opinions meet a stringent reliability test.10 The profound changes to the traditional laissez-faire law of expert testimony provoked resistance from some federal judges who favored more liberal rules of admissibility. These judges rejected the early precedents excluding expert testimony from toxic torts cases of the late 1980s,11 applied Daubert narrowly in the mid-1990s,12 and, in the late 1990s, exploited loopholes and ambiguities in Joiner and Kumho Tire to admit questionable expert testimony.13 All of these actions, while broadly contrary to the trajectory of expert evidence law, were within the bounds of a reasonable interpretation of the extant law.

Judicial resistance should have withered away, however, after the 2000 amendment to Federal Rule of Evidence 702. The rule provides that expert testimony that would otherwise be helpful to the jury is admissible only when (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.14 To get a sense of the dramatic shift amended Rule 702 represents, just a decade before it went into effect no American jurisdiction applied such strict admissibility criteria. Most federal courts, recognizing their place in the scheme of things,15 have acquiesced to the new regime. There has, however, 5 See infra notes 7–81 and accompanying text.

6 509 U.S. 579 (1993).

7 522 U.S. 136 (1997).

8 526 U.S. 137 (1999).

9 See infra notes 82–139 and accompanying text.

10 FED. R. EVID. 702.

11 See infra notes 27–81 and accompanying text.

12 See infra notes 82–107 and accompanying text.

13 See infra notes 108–136 and accompanying text.

14 FED. R. EVID. 702.

15 Cf. Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1316 (9th Cir. 1995) (“Our responsibility, then, unless we badly misread the Supreme Court’s opinion, is to resolve disputes among respected, well-credentialed scientists about matters squarely within their expertise, in areas where there is no scientific consensus as to what is and what is not ‘good science,’ and occasionally to reject such expert testimony because it was not ‘derived by the scientific method.’ Mindful of our position in the hierarchy of the federal judiciary, we take a deep breath and proceed with this heady task.”).

2013] judicial resistance to the revolution 29 DAUBERT been an extraordinary undercurrent of rebellion by a minority of federal judges who implicitly object to the radical changes16 wrought by the “Daubert revolution.” These judges ignore the text of Rule 702, and instead rely on lenient precedents that predate (and conflict with) not only the text of amended Rule 702, but also with some or all of the Daubert trilogy.17 The most prominent example of such judicial truculence is the First Circuit’s 2011 opinion in Milward v. Acuity Specialty Products Group, Inc.18 In Milward, the First Circuit reversed as an abuse of discretion a district court’s ruling excluding causation evidence in a toxic tort case.19 In doing so, the appellate court ignored Rule 702, disregarded the Supreme Court’s opinion in Joiner, relied on obsolete precedents, misunderstood the underlying rationale for exclusionary rules for expert testimony, misapplied basic scientific concepts, and credulously endorsed “weight of the evidence” as a valid scientific methodology.20 Not surprisingly, plaintiffs’ lawyers have greeted Milward with great enthusiasm, treating the opinion as a jurisprudential Moses that will part the Rule 702 Sea and lead them to the Promised Land of pre-Daubert admissibility rules.21 Defense lawyers, meanwhile, have been aghast.22 The Supreme 16 See David L. Faigman, The Daubert Revolution and the Birth of Modernity: Managing Scientific Evidence in the Age of Science, 46 U.C. DAVIS L. REV. 893, 895 (2013) (describing these changes as “revolutionary”).

17 See infra notes 147–222 and accompanying text.

18 639 F.3d 11 (1st Cir. 2011). Milward has provoked a great deal of commentary, both favorable and unfavorable. See, e.g., 3 DAVID L. FAIGMAN ET AL., MODERN SCIENTIFIC EVIDENCE § 29:6, at 781 (2010-2011 ed. 2010); DAVID H. KAYE ET AL., THE NEW WIGMORE: A TREATISE ON EVIDENCE—EXPERT EVIDENCE § 10.5.1 (Supp. 2012); Steve C. Gold, The “Reshapement” of the False Negative Asymmetry in Toxic Tort Causation, 37 WM. MITCHELL L.

REV. 1507, 1580 (2011) (suggesting that Milward holds the “promise of reshaping toxic tort causation law”); Michael D. Green, Introduction: The Third Restatement of Torts in a Crystal Ball, 37 WM. MITCHELL L. REV. 993, 1010 n.53 (2011) (describing Milward as “[o]ne of the most significant toxic tort causation cases in recent memory”); Carl Cranor, Milward v.

Acuity Specialty Products: How the First Circuit Opened Courthouse Doors for Wronged Parties to Present Wider Range of Scientific Evidence, CPR BLOG (July 25, 2011), http://www.progressivereform.org/CPRBlog.cfm?idBlog=616EE094-D602-ED68-85FD84E7EB0A212E; William A.

Ruskin, Daubert on the Defense?, TOXIC TORT LITIG. BLOG (June 6, 2012), http://www.toxic tortlitigationblog.com/tags/milward-v-acuity-specialty-pro.

19 Milward, 639 F.3d at 26.

20 See infra notes 198–220 and accompanying text.

21 See Steve Baughman Jensen, Reframing the Daubert Issue in Toxic Tort Cases, TRIAL, Feb. 2013, at 46; Symposium Considers “Weight of the Evidence” Approach, TRIAL, Sept. 2012, at 50.

22 See Eric Lasker, Manning the Daubert Gate: A Defense Primer in Response to Milward v.

Acuity Specialty Products, 79 DEF. COUNS. J. 128, 128 (2012); James F. Rogers, James Shelson & Jessalyn H. Zeigler, Changes in the Reference Manual on Scientific Evidence (Third Edition), 80 DEF. COUNS. J. 287, 293–96 (2013); Barnes & Thornberg LLP, Rejecting Milward: A “Weight of the Evidence” Methodology Is No Methodology at All, NAT’L L. REV. (July 30, 2012), http://www.natlawreview.com/article/rejecting-milward-weight-evidence-methodology-nomethodology-all; Julie A. Brennan, Milward v. Acuity Specialty Products: The “Weight of the Evidence” Necessitates Supreme Court Review of First Circuit’s Decision, DRITODAY (March 8, 30 notre dame law review [vol. 89:1 Court refused to review Milward,23 so it remains good law in the First Circuit, requiring district court judges to admit speculative causation testimony. Milward also has the potential to influence the law in other circuits and in state courts.24 This Article reviews the history of the evolution of the rules for the admissibility of expert testimony since the 1980s, the revolutionary nature of what ultimately emerged, and the consistent efforts by recalcitrant judges to stop or roll back the changes, even after Rule 702 was amended to explicitly incorporate a strict interpretation of those changes.

Part I reviews the law of expert testimony through the Supreme Court’s Daubert decision. Critics had charged for decades that the adversarial system was a failure with regard to expert testimony. Parties to litigation, they argued, often presented expert testimony of dubious validity because it supported their positions, while lay juries were incapable of discerning which side had the better case. But it took the rise of toxic tort litigation based on questionable causation theories and the attendant threat to multi-billion dollar industries to provoke a meaningful response from the courts—a sudden and dramatic shift toward stricter admissibility standards.

Part II describes the Daubert trilogy and the emergence of amended Rule



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