“Location, location, location,” that stand-by recommendation of the real estate industry, can be just as important when it comes to the law.
Just ask Johnson & Johnson. The company recently lost two cases to the combined tune of $127 million in verdicts, both around allegations that its talcum powder products cause ovarian cancer. Both cases were tried in Missouri, although one concerned an Alabama woman and one a woman from South Dakota. Both used the same expert witnesses to prove the link.
When a third case was brought against the company in New Jersey, however, with the same witnesses, a state judge refused the expert testimony and granted summary judgment to the company instead.
Same allegations, same witnesses… what’s the difference?
According to a Forbes article on the topic, “the standard for admissibility of expert testimony is more relaxed in Missouri… [with] a more laissez-faire approach to expert testimony, giving much greater deference to the jury.” New Jersey judges, on the other hand, “are obligated to take a more stringent approach.”
These differences aren’t just a matter of style, but of law. Every state has its own standards for the treatment of expert witnesses and testimony. Interestingly, neither state in this situation relied on the standard used federally and by many states, the Daubert standard, nor Daubert’s counterpart, the Frye standard. Missouri looked to its own set of rules, created in 1989, while the New Jersey judge used state law precedent from Kemp vs. State of New Jersey, decided in 2002.
So where did the New Jersey judge differ from his counterparts in Missouri? Unlike other cases that we’ve examined in which expert testimony was called into question, it wasn’t the experts themselves, but their methodology. The judge took no issue with the experts’ qualifications, calling one “a brilliant scientist and a dazzling witness,” but claimed that their conclusions were “made for litigation” versus being truly grounded in medical science.
In his ruling, Judge Johnson (ironically named, given the case,) stated, “Accepting, for the sake of discussion, that the case-control studies relied upon by Dr. Cramer… convey an inference that there is some type of causal association between talc and ovarian cancer, it means nothing without a hypothesis of specific causation.” He questioned the experts’ repeated explanation of the link being caused by inflammation, and summed up, “Absent the thread, there is no quilt.”
Whether you agree with the ruling or not, it’s certainly striking that given the same set of circumstances and the same expert witnesses, two states delivered substantially different outcomes. The takeaway here is clear. Know your state’s technical standards and cultural tendencies to ensure that your experts make it to the stand, and make the biggest impact.