ELR Citation: ELR 20222
No(s). A-125 (N.J. Aug 1, 1991)

The court rules that a scientific theory of causation that is not yet generally accepted may be admissible in a toxic tort case if it is based on sound scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field. The survivors of two men who worked at defendant's chenical plant where they were exposed to polychlorinated biphenyls (PCBs) allege that this exposure caused the mens' fatal colon cancer. Under the traditional test governing the admissibility of expert testimony, an expert's theory must be accepted by at least a substantial minority of the applicable scientific community to be admissible. The court notes that it does not easily depart from the traditional test, given the dangers of allowing a jury to consider expert testimony that has not been demonstrated to be reliable. However, the court also recognizes the burdens facing plaintiffs attempting to prove causation in toxic tort cases, including the long latency periods and the inability of current science to precisely identify the causes of cancer. Numerous commentators have suggested that a broadened standard for determining the admissibility of causation theories is needed for toxic tort litigation. Some courts have adopted a methodology-based standard for determining reliability of novel or emerging scientific theories of causation, while others continue to insist on general acceptance by the scientific community. The court observes that toxic tort litigation does not often encounter well-established and widely accepted scientific theories of causation. However, in such litigation there is often data and information of a type that is used and relied on by experts in the field, and there are highly qualified experts that can apply sound scientific methods to the data to reach creditable opinions on causation. The court thus rules that in toxic tort litigation, a scientific theory of causation that has not yet reached general acceptance may be found to be sufficiently reliable if it is based on a sound, adequately founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field. In determining if the scientific methodology is sound and well-founded, courts should consider whether others in the field use similar methodologies. There need not be general agreement with the opinions drawn from the methodology used; there must merely be some expert consensus that the methodology and underlying data are generally followed by experts in the field. The court notes that the methodology used by plaintiff's expert witness could be found to be sound and well-founded, but remands to the trial court for application of the new standard.

Counsel for Defendant-Appellant
Clyde A. Szuch, Elizabeth J. Sher
Pitney, Hardin, Kipp & Szuch
P.O. Box 1945, Morristown NJ 07962
(201) 933-6300

Counsel for Plaintiffs-Respondents
Alfred F. Russo, Timothy M. Casey
Russo & Casey
453 Amboy Ave., Woodbridge NJ 07095
(908) 634-1770

For modification and remandment — Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, O'HERN, GARIBALDI, and STEIN — 6.

Opposed — None.