In an October post on this blog, we explored why “Location, Location, Location” is critical to your case by examining a set of recent rulings around Johnson & Johnson’s use of talc in their products. This year the company lost two huge cases totaling $127 million in Missouri but was granted summary judgment in New Jersey, even though it was essentially the exact same case with the exact same witnesses. The difference, as we discussed, came down to location: how each state approaches the expert witness process both legally and culturally.
Last week The National Law Review covered the same topic, with some interesting new wrinkles that I believe are worthy of an update. The article offers a similar overview to our original post, and after asking “Why the different results?” comes to the same conclusion – even stealing our “location, location, location” line! The author goes further, however, in dissecting the precise differences between the two states.
As we discussed, one piece of the puzzle is cultural; the NLR article states that “Missouri has a reputation for being a plaintiff-friendly jurisdiction,” especially in product liability cases. It would be an interesting analysis to learn why this is the case, but for now, they leave it at that. More tangibly, and perhaps as an input and/or output of that culture, it appears that the media played a significant role in these cases. “Plaintiffs’ attorneys in Missouri have undertaken an aggressive advertising program in and around St. Louis to recruit potential plaintiffs and influence potential jurors,” the article explains. “According to J&J, 23% of the national talc litigation advertising ran in the St. Louis area between March and May of this year.”
Very interesting stuff. It seems unlikely that heavy-hitting media presence and plaintiff-friendly verdicts are unrelated.
Most relevant to our purposes, the NLR piece spends some time dissecting how the two states approach expert witnesses differently. It points less to the states’ different standards for governing expert witness testimony – neither has adopted the common Daubert standard – and more to how the courts apply their gatekeeping function. This comes down to how easy it is to get experts on the stand, or in law speak, how “flexible” the courts’ procedures are. In NJ, the court reviewed “approximately 100 treatises” before deciding that the experts’ testimony would not be allowed, while in Missouri, “the trial courts did not have pre-trial hearings regarding the admissibility of expert testimony, nor did the judges hear the expert testimony before it was presented to the juries.”
This analysis supports our own, and our conclusion that it’s critical to know the ins and outs of the expert witness process wherever you try a case. The NLR article even inspires me to extend that recommendation.
Not only should you know your location’s standard for expert witness testimony, Daubert or otherwise, and its cultural leanings. To be truly prepared, you should also dig into additional external factors that could impact your case, and therefore the best expert for your case. If you’re facing an uphill battle against a media campaign, for example, you’ll need an expert who is powerful enough to overcome that bias in the jurors’ minds. If you’re in a state like New Jersey that’s heavy on scientific analysis, you’ll need an expert with impeccable methodology alongside credentials. Sometimes it’s not just about knowledge – you need the right expert for the right location and very specific circumstances.