On this date in 2002, the Supreme Court decided Kemp ex rel. Wright v. State, 174 N.J. 412 (2002). The Court split 4-3. Justice Stein wrote the majority opinion, in which Justices Coleman, Long, and Zazzali joined. Chief Justice Poritz issued a dissent, which was joined by Justices Verniero and LaVecchia. Kemp has become one of the leading opinions in New Jersey jurisprudence as to the standards for admissibility of expert testimony.
The case had a lengthy history, including a previous trip to the Supreme Court. Kemp v. State, 147 N.J. 294 (1997). Plaintiffs alleged that defendants, the State of New Jersey, Burlington County, and the Riverside Board of Education, had negligently administered a rubella vaccine to plaintiff Debra Kemp while she was pregnant, as a result of which Debra Kemp’s daughter, Delisha Kemp, developed Congenital Rubella Syndrome. The Law Division found that plaintiffs’ expert’s opinion that the vaccine had proximately caused Delisha’s illness was scientifically unreliable, and that therefore summary judgment for defendants was required. The Appellate Division affirmed. The Supreme Court agreed that the expert’s opinion “in its present form was not admissible,” but remanded to the Law Division for an Evidence Rule 104 hearing to “redetermine” the admissibility of the expert’s opinion.
The Law Division had not held a Rule 104 hearing before excluding the expert testimony (plaintiffs did not request such a hearing), and the majority found the failure to do so to be plain error. Thus, even though the majority concluded that “the record reveals that plaintiffs failed to demonstrate that their expert’s methodology was scientifically sound,” in cases where, as here, exclusion of expert testimony “may be dispositive of the merits, the sounder practice is to afford the proponent of the expert’s opinion an opportunity to prove its admissibility at a Rule 104 hearing.”
The majority opinion contains a useful review of federal and New Jersey caselaw regarding the standards for admission of expert testimony, including a discussion of whether and when the more relaxed standard of Rubanick v. Witco Chem. Corp., 125 N.J. 421 (1991), can be used. All seven Justices agreed that Rubanick was not appropriate for use in Kemp. Kemp has continued vitality in that it discusses the applicable standards and establishes the rule that, in many cases, a decision as to admissibility cannot be made without a Rule 104 hearing. It is frequently cited for those principles, and likely will continue to be.