On November 15, 2023, the New Jersey Supreme Court released its decision on the much anticipated issue of whether Drug Recognition Expert (DRE) testimony is admissible under New Jersey Rule of Evidence 702. The Court concluded that the DRE tests, with certain safeguards, may be used as admissible evidence.BACKGROUNDUnder New Jersey law, it is illegal to operate a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic, or habit-producing drugs. However, unlike driver impairment caused by alcohol, which can be established by blood alcohol concentration testing reaching statutorily established levels, no similar statutes exist in New Jersey to establish driving under the influence of other intoxicating substances.More than 50 years ago, law enforcement officials and researchers developed the Drug Evaluation and Classification Program to combat the challenge of detecting and proving driving under the influence charges. The protocol consists of twelve steps, which are administered by trained DREs. The protocol, which is typically administered at the scene of the motor vehicle stop or police headquarters, uses the subjective tests to ascertain intoxication. T

See Townsend v. Pierre, 221 N.J. 36, 110 A.3d 52 (March 12, 2015). The case involved a motorcycle vs. auto collision, so let's get right to the analysis.When a New Jersey court determines the admissibility of expert testimony, N.J.R.E. 702 and N.J.R.E. 703 frame its analysis. N.J.R.E. 702 imposes three core requirements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert’s testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.

Discovery in the state cases proceeded in tandem with discovery in the federal Accutane multidistrict ("MDL") litigation.On appeal from the jury verdict, Roche specifically argued, inter alia, that the trial court erred in admitting the opinion testimony of plaintiff's causation expert Dr. Sachar because his methodology was unreliable and thus improper under N.J.R.E. 702; and that the trial court denied Roche a fair trial in admitting the testimony about causality assessments based on Accutane ADEs, but in restricting the defense in presenting competing quantitative proofs to put the ADEs in context, including the actual number of Accutane users.On the issue whether Dr. Sachar's causation testimony was sufficiently reliable in the field of scientific research to be admitted, the court noted that in New Jersey the standard of review of such rulings under Rule 702 is a narrow one. "In reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion."

[9] The Accutane case involved claims by more than two thousand plaintiffs alleging that the drug Accutane caused them to develop Crohn’s disease.[10] The crux of the dispute before the Supreme Court was the question of whether the plaintiffs’ expert medical causation testimony was scientifically invalid, and thus inadmissible, under N.J.R.E. 702 and 703.[11] Specifically, the plaintiffs proffered testimony from two expert witnesses―Dr.

that the judge abused his discretion in excluding Levin’s report and testimony.A trial judge’s decision concerning the admission of expert testimony into evidence is entitled to our deference and is reviewed under an abuse-of-discretion standard. Townsend v. Pierre, 221 N.J. 36, 52 (2015). Further, a trial judge’s decision to exclude an expert report should be reversed “only if it ‘was so wide off the mark that a manifest denial of justice resulted.'” Rodriguez v. Wal-Mart Stores, Inc., 237 N.J. 36, 57 (2019) (quoting Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016)).The court acknowledged that FELA’s language on causation is quite broad. However, that broad language does not eliminate a plaintiff’s obligation to prove causation or strip from a trial judge his or her role as “the gatekeeper of expert witness testimony.” In re Accutane Litig., 234 N.J. at 389; see also Stevens v. N.J. Transit Rail Operations, 356 N.J. Super. 311, 319 (App. Div. 2003).The court further considered New Jersey Rules of Evidence 702 and 703, which control the admission of expert testimony. N.J.R.E. 703 addresses the foundation for expert testimony and mandates that expert opinions must “be grounded in ‘facts or data derived from (1) the expert’s personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts.'” Townsend, 221 N.J. at 53 (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 583 (2008)).The net opinion rule directs that experts be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are reliable. Townsend, 221 N.J. at 55 (internal quotations omitted). Further, an expert’s conclusion must be excluded if it is based merely on unfounded speculation and unquantified possibilities.Applying those principals, the court determined that the motion judge properly excluded Levin’

In 2018, the New Jersey Supreme Court reversed the Appellate Division and affirmed the trial court’s exclusion of the experts. In its landmark decision, the Supreme Court reconciled New Jersey’s framework for analyzing the reliability of expert testimony set forth in N.J.R.E. 702 and 703 with the federal standard set forth in Daubert v. Merrell Dow Pharm., Inc. In particular, the Court incorporated Daubert’s factors “for use by our courts” in assessing expert testimony reliability, but stopped short of declaring New Jersey a “Daubert jurisdiction.”

Accordingly, although your colleague may have needed an expert for their divorce, you may not. Generally, in cases which involve businesses, high net-worth issues, or contentious custody situations, it could be appropriate or even necessary to have an expert witness.New Jersey Rule of Evidence 702 governs expert testimony and states “[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.”There are a wide variety of qualified individuals who may have specialized knowledge required and who may be necessary to testify during your case.Perhaps the most common expert needed in a divorce matter is a child custody expert.

Missouri courts have not adopted Daubert. New Jersey courts, by contrast, play a “gatekeeper” role and apply the standards set forth by the New Jersey Supreme Court in Kemp v. State of New Jersey, 174 N.J. 412 (2002) as required by N.J. Evidence Rule 104 and N.J. Evidence Rule 702, which is identical to Rule 702 of the Federal Rules of Evidence. In Giannecchini, the trial court denied the defendants’ motion to strike the opinions of plaintiff’s experts.

Like Missouri, New Jersey’s expert evidence rules generally track the federal rules. New Jersey Rule of Evidence 702 is identical to Federal Rule 702 as it existed when Daubert[13] was decided. Accordingly, New Jersey courts apply gatekeeping to assure that experts are presenting reliable science.

Further, “[i]n light of the pivotal role of the IBS issue in the jury’s verdict, the trial court’s decision to limit the testimony of the treating gastroenterologist constituted a reversible error.” The Supreme Court recognized that “a LAD disability claim, in which the plaintiff’s disability is not readily apparent, must be supported by ‘expert medical evidence,’ also characterized as ‘objective medical testimony.’” However, according to the court, the “expert medical evidence” or “objective medical testimony” does not need to be given by a designated expert pursuant to N.J.R.E. 702. Rather, “a jury [can be] guided by the testimony of witnesses qualified to assist it in understanding the disease or condition at issue in a given case,” such as that of a treating physician.