Last month, the New Jersey Supreme Court issued an official comment reconfirming that the New Jersey Rule of Evidence 702 incorporates what’s known in legal circles as the Daubert-style gatekeeping standard that the Court first adopted for civil cases in In re Accutane Litigation.

That reaffirmation aligning New Jersey’s evidence admissibility rule with Federal Rule of Evidence (FRE) 702 constitutes a win worth celebrating, because New Jersey judges now possess a clearer standard to thoroughly vet expert evidence before a jury ever sees it.

Amended in 2023, FRE 702 helps enforce rigorous standards for expert evidence.  The rule was established to weed out deceptive or erroneous expert testimony in court cases and refine federal judges’ gatekeeping role.

That invaluable standard only matters, however, if it's applied uniformly.  When courts not applying it admit unreliable opinions, the risk of skewed verdicts rises, and with it, the stakes for American consumers, including on matters of public health.  Because implementation has been inconsistent on a state-by-state basis, our judicial system has yet to develop a coherent, uniform standard.

Although New Jersey rightly reaffirmed its congruence, it took an unnecessarily long time, and the delay illustrates exactly why uniformity of the federal standard matters.

It wasn't until 2018, in the In re Accutane Litigation decision referenced above, that the New Jersey Supreme Court incorporated the four core factors from the Daubert standard, which predated Rule 702, into its evidentiary standard.  Thirty-nine states had already embraced the Daubert standard since 1993, but New Jersey, despite being home to significant pharmaceutical and mass tort litigation, had declined to do so.

That delay meant that for over two decades, one of the nation's most important venues for pharmaceutical litigation operated under a standard that was susceptible to admitting weak scientific expert testimony.  In turn, that meant American consumers reliant upon lifesaving pharmaceutical innovation paid an unnecessary price.

Federal courts are different, and offer a superior alternative to those states that still haven’t adopted its standard.

Namely, FRE 702 provides judges with clear guidelines to use in examining the reliability of experts and their testimony before that evidence is presented to jurors.  Updated in 2023, the rule explicitly demands that the proponent of expert testimony show that the testimony satisfies every admissibility requirement.  Reasonably, it also requires experts to be qualified in the area on which they’re testifying.

The rule thus ensures that courtroom “experts” use only sound, peer-reviewed methodology, that they’re grounding their testimony in sufficient data and that they’re applying their methodology correctly to the facts of the case.

Returning to New Jersey, its recent action shows that closing the gap between federal and state standards is achievable.  More work, however, remains.

Because Rule 702 is a federal rule, it obviously applies only to federal courts, meaning its protections do not apply in states that have not aligned their expert admissibility standards with the federal rule.  Getting states to adopt these standards requires action at the state level, whether through state supreme court rulings or legislative action.

Achieving that judicial consistency would improve outcomes and safeguard litigants’ rights.  Those stakes, incidentally, run even higher in criminal cases, where defendants face not just financial losses, but the loss of their freedom or even their lives.

Regardless of the manner by which state rules on expert testimony are brought up to date, in any event, it’s difficult to overstate how important those changes are for both civil and criminal trials.  We simply cannot risk allowing inaccurate or biased expert testimony to mislead juries and manufacture outcomes.

Whether a trial is conducted in a federal court or a state court, our judicial system must prioritize sound science and sound verdicts, and achieving full application of FRE 702 across our judicial system remains a critical task for a fairer justice system.

Timothy Lee is Senior Vice President of Legal and Public Affairs at the Center for Individual Freedom, a nonprofit organization to advocate the principles of free markets, limited government and international liberty.