Client Advisory

Rachel S. Rubenstein, Felicia D. Brodock

The Supreme Court of New Jersey recently reaffirmed that trial courts evaluating the admissibility of expert testimony in civil cases must apply the Daubert v. Merrell Dow Pharmaceuticals, Inc. principles outlined in In re Accutane Litigation.

The Court in In re Accutane identified several non-exhaustive factors from Daubert that New Jersey trial courts should consider when determining the admissibility of expert testimony. In that regard, the In re Accutane Court instructed trial courts to critically evaluate experts’ methodology and the underlying data used to form their opinions. In Beavan v. Allergan U.S.A., Inc., the Court confirmed there are no exceptions to In re Accutane’s instructions.

In Beavan, Plaintiff Alison Beavan alleged she sustained an injury from an ocular steroid implant manufactured by Defendant.

In July 2018, Defendant notified the Food and Drug Administration (“FDA”) that several units of the implant had a manufacturing defect. In November 2018, Dr. William Phillips injected Beavan with the implant from an affected lot, which he did not know. Soon after the injection, Beavan experienced blurred vision, a blind spot in her left eye, and a retinal detachment, which Dr. Phillips repaired surgically. Dr. Phillips determined that the implant had migrated within Beavan’s eye. By May 2021, Beavan was now completely blind in her left eye.

Beaven brought a strict liability products claim against defendant for violation of the New Jersey Product Liability Act (“the NJPLA”), negligence, and breach of implied warranty.

Beavan retained a board-certified ophthalmologist as an expert, who conducted a differential diagnosis through which he “ruled in” plausible causes of Beaven’s injuries and then “ruled out” causes which were less likely to cause the injuries. He concluded that after Beavan was injected with the defective steroid implant, a silicone particulate embedded in her left eye, and migrated during the retinal repair surgery, leading to Beavan’s vision loss. He opined that the temporal proximity between the defective injection and Beavan’s symptoms suggested the injection was more likely the cause of her vision loss than her previous surgeries or a prior implant.

Plaintiff also produced her treating ophthalmologist as a non-retained expert and did not serve an expert report regarding his opinions. During his deposition, Dr. Phillips testified that he believed the implant was the cause of Beavan’s injuries.

Defendant moved to exclude Beaven’s experts’ testimony arguing they did not meet the standard of reliability required under New Jersey law and that they were “net opinions” because their conclusions were not supported by evidence or data. Defendant also moved for summary judgment on the NJPLA claim, contending Beavan could not prove the product was defective or that a silicone particulate was injected into Beaven’s eye.

In its order denying Defendant’s motion to exclude Beavan’s experts, the trial court quoted and summarized Beavan’s experts, finding both sufficiently based in fact and data to be admissible under N.J.R.E. 703. It did not apply the Daubert factors outlined in In re Accutane.

The trial court also denied Defendant’s motion for summary judgment, finding that there was a dispute of material fact as to whether Beaven was injured by a defect pursuant to the NJPLA, and that Beaven’s experts presented sufficient evidence for presentation to a jury as to whether the defect caused Beaven’s injuries.

Defendant moved for reconsideration, most critically, arguing that the court’s opinion did not comport with the requirements of In re Accutane. The trial court again denied Defendant’s motion.

On appeal, the Appellate Division held that Beavan’s experts did not supply any evidence relating to general or specific causation, and her retained expert’s differential diagnosis was unavailing. It held Beavan’s experts would not “pass muster” under the Daubert factors, the trial court abused its discretion in denying Defendant’s motion to exclude Beavan’s expert testimony, and it reversed the trial court’s denial of Defendant’s motion for summary judgment.

On appeal to the Supreme Court of New Jersey, Beavan argued the Court should not apply the Daubert factors outlined in In re Accutane but should instead consider whether her experts’ opinions are “reliable” pursuant to a differential diagnosis under Creanga v. Jardal.

The Supreme Court disagreed, holding that all expert testimony in civil cases, including each step of an expert’s opinion, must be evaluated pursuant to the Daubert factors outlined In re Accutane. Specifically for differential diagnoses, the trial court must evaluate whether the expert properly “ruled in” competing causes of a plaintiff’s injury that are generally capable of causing her symptoms and whether the expert properly eliminated potential causes using scientific methods and procedures.

Because the trial court did not analyze Beavan’s experts’ testimony pursuant to In re Accutane, the Supreme Court did not have a factual record to determine whether the trial court abused its discretion in denying Defendant’s motion for summary judgment. Similarly, the Court held that the Appellate Division did not have a sufficient record to determine whether the trial court erred. The Court reversed the Appellate Division’s decision and remanded the case to the trial court to conduct an In re Accutane analysis of Beaven’s proffered expert testimony.

Key Takeaway: In light of the Court’s ruling, defense counsel are reminded to thoroughly analyze plaintiffs’ expert testimony under the Daubert factors outlined in In re Accutane and consider moving to exclude their testimony or for summary judgment on that basis.