New Addition to New Jersey Court Rules Impacts More Than Trial Practice
Newark, N.J. (October 8, 2020) - On September 1, 2020, New Jersey adopted a brand-new rule of procedure, Rule 4:25-8, which properly defines motions in limine. On its face, the new rule prohibits, broadly, filing motions in limine that may have a dispositive effect on the case. Most notably, the rule expressly eliminates the ability to move, on motion in limine, to bar expert testimony in matters in which such experts are required to sustain a party’s burden of proof. This effectively makes the summary judgment phase of litigation the last chance to bar experts from a jury trial or take any other dispositive action
The new rule comes at a time in which the evidentiary standard for experts is shifting in New Jersey. In October 2018, the New Jersey Supreme Court reconciled the framework for analyzing the reliability of expert testimony under N.J.R.E. 702 and 703 in In re: Accutane Litigation. Significantly, New Jersey, a traditional Frye jurisdiction, incorporated certain federal Daubert factors for expert “use by our courts” but, overall, fell short of adopting the Daubert standard as a whole. In applying the relevant Daubert factors, the trial court in Accutane held that the subject experts’ methodologies were unsound due to the failure to apply fundamentals of the scientific method of the medical-evidence hierarchy. The decision resulted in the dismissal of over 3,000 claims.
Rule 4:25-8 is the latest step by the New Jersey courts to both eliminate sandbagging and encourage by mandate better preparation by trial counsel before the New Jersey courts. With the advent of this rule, the days of waiting until arrival on the courthouse steps to cripple your adversary’s case are over. The rule makes clear that doing so waives the ability to attack, pre-trial, the qualifications of the expert or their opinions in an effort to bar that testimony. Intertrial motions and hearings are unaffected by the rule, but there is naturally an increased risk in attempting to bar an expert’s testimony through a Rule 104 hearing. The new rule necessarily levels the playing field, allowing both sides of the aisle to reasonably evaluate their case’s merits and disadvantages in order to properly advise and recommend trial or settlement in the days leading up to trial.
The Accutane decision, coupled with the codification of best practice for motions in limine under Rule 4:25-8, presents new opportunities to strike expert testimony in the pre-trial stage. To be sure, the implications of the rule extend far beyond simple timing issues and exclusion of the “eleventh hour” dispositive motion. Motions for summary judgment must be returnable no later than 30 days before trial is scheduled, per Rule 4:46-1. The new rule can thus be leveraged against the time constraints for dispositive motions to preclude out-of-time expert reports that inevitably impact the ability to file dispositive motions to exclude said experts.
Karley Kamaris, Associate
Thomas Regan, Partner