For the last few decades, the most compelling issue in an occupational disease case has been the manner in which the workers’ compensation court should determine the admissibility of scientific evidence. The New Jersey Supreme Court recently established guidelines for the admission and reliance upon such proof. The long awaited decision by Justice Coleman in Lindquist v. City of Jersey City Fire Dept., 175 N.J. 244 (2003) provides a very simple and basic approach that completes the puzzle of necessary proof in complex cases. The Court recognized that the need for guidance existed as there has been an increase in the filing of complex occupational claims and the parties are relying more frequently upon new and novel scientific theories.
Justice Coleman, who recently retired from the Court, had extensive prior experience in the workers’ compensation arena. As a former Judge of Compensation, his in depth understanding of the compensation system is reflected in his well-crafted opinion. As an Appellate Division Judge, as well as a Justice of the New Jersey Supreme Court, he authored approximately eighteen opinions concerning workers’ compensation issues. Twelve of which were decided favorably for the plaintiff.
Workers’ compensation in New Jersey is a state regulated benefit program for injured workers. Since labor and industry crafted the bargain in 1911 to establish a workers’ compensation system, it has functioned as an expeditious, efficient and liberal benefit program for injured workers and their dependents. The Act is based upon a social compromise theory under which employers have relinquished various defenses for the payment of a limited benefit program. Workers’ compensation has succeeded for many years in New Jersey, as well as in other jurisdictions, because it embraces the basic concepts of the fairness of a civil justice system and it remains a program “for the people.”
The sociological catalyst for the national program that was adopted by many states, including New Jersey, was the public outcry in 1911 for a social program to remedy the human hardships of the Triangle Shirtwaist Fire. In that tragedy, workers were locked in a building during business hours and a fire occurred. Few were able to exit alive resulting in many fatalities.
The New Jersey Workers’ Compensation Act was based upon the British common law and only originally covered traumatic conditions. Occupational illness and disease were excluded in the original legislation. Employers were reluctant to embrace the concept of compensable occupational illness due to the heavy evidential burden to defend against exposures that occurred over long periods of time. The failure to have a sudden onset of a disease, but rather a gradual and slow process, made it difficult for employers’ to assert a defense. Although, employers found that to continue to be exposed to civil liability awards resulted in severe erratic verdicts and economic hardship.
During the 1920’s the New Jersey Workers’ Compensation Act was modified to include a list of enumerated diseases: anthrax, lead poisoning, mercury poisoning, arsenic, phosphorous, benzene, wood alcohol, chromium, radium, dermatitis, silicosis and asbestosis. Still fearing that there were inadequate defenses that could be evidentially asserted, the Act was amended in 1949 to modify the definition of a compensable occupational disability. The new definition incorporated all diseases arising out of or in the course of employment, which were caused or conditions that were “ characteristic of or peculiar to a particular trade, occupation, process or employment and which were due to the exposure of any employee to a cause therein arising out of and in the course of his employment” L.1948, c.468, p.1915, §2.
Despite the intent of industry in the late 1940’s to reduce the number of claims, the new statutory definition did not slow the flow of occupational disease claims that were filed. The increased hazards in the workforce, fed by an expanding economy and a legacy of toxic pollution, dramatically increased occupational disease to near epidemic proportions in New Jersey over the next few decades. The occupational illness issue was again addressed by the New Jersey Legislature in 1979 when an even more restrictive definition was enacted to limit compensation to those diseases that were “due in a material degree” to the conditions and causes that are or were characteristic of, or peculiar to a particular trade, occupational process, or place of employment.
Failing to slow the escalating tide of claims, another legislative limitation was enacted to reduce the number of sensory binaural hearing loss claims. Lacking a computational formula to restrict hearing loss claims, otological disability was liberally awarded and usually incorporated a partial total award for tinnitus and ringing in the ears. A new statutory evidentiary formula, embodying severe restrictions, was enacted to limit claims. Also enacted was an additional limitation restricting claims. It eliminated, “those conditions in which are part of the body has resulted from the naturally deterioration of either tissue organ or aging process”. Hearing loss claims for presbycusis, a progressive loss of hearing owing to increased age, was embodied within that definition. PL 1979, Chp. 283, s.10. Even with legislative limitations imposed, occupational cases continue to be filed with even greater complex burdens of proof.
The Lindquist Court, in its quest to establish a standard for the admission of scientific evidence in workers’ compensation claims, reviewed the concepts of legal and medical causation and burden of proof required to sustain admissibility. The Court recognized that the direct causation of the risk of a danger within the workplace was not required to prove legal causation. The risk only needs to have been a contributing cause. The Court validated the theory that an aggravation, acceleration, or exacerbation of an underlying condition by a work-related exposure could lead to enhanced compensability. The claimant is not required to establish the nexus between the disease and the place of employment.
The proof of medical causation through the admission of scientific evidence was the main focus of attention of the Lindquist Court. Justice Coleman reiterated that the petitioner must prove that the injury or exposure was a contributing cause to the petitioners’ medical condition. Historically, this has been a troubling issue and unresolved issue in workers’ compensation matters.
In 1923 the U.S. Supreme Court first dealt with the issue of scientific evidence in a case involving polygraph testing. The “Frye doctrine” was enunciated in a two-page decision as the Court encountered the “twilight zone” of new scientific evidence. Frye v. United States, 293 F.1013 (D.C.Cir. 1923). The Court held that if a theory had gained “general acceptance” in the particular field in which it belongs, then the evidence is admissible. The Frye court separated expertise from the expert. It allowed knowledge to be assessed even if it is new and merely marketable. The control passed from those who produce or sell the knowledge to those who evaluate it. The case virtually went unnoticed from 1923 to 1970 because scientific evidence was not fashionable.
The concept of “junk science” was born in the 1970’s and was suggested during Bendectin litigation. Bendectin was an antinausea medication prescribed for pregnant women. Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Daubert court, while evaluating scientific evidence, reached the conclusion that judges have the responsibility of evaluating the scientific validity of the basis for expert testimony and to determine if the reasoning or methodology is valid. If so, then the evidence was admissible and therefore acceptable. Twenty-one states follow the Daubert test and accept its essential principles. Seven states decided to reconsider and 10 states rejected it outright. Seven other states preferred to remain with their alternative standard of general acceptance and seven states created their own version. Five states remain undecided. As a result of Daubert, judges and lawyers that were long isolated from the scientific revolution became obligated to become familiar with the methods and cultures of science.
The New Jersey Supreme Court, while reviewing a wrongful death claim caused by exposure to polychlorinated biphenyl (PCBs) on the job site, held that in toxic-tort litigation, the scientific theory of causation that had not yet reached general acceptance may be found to be sufficiently reliable for disability. Rubanick v. Witco Chemical Corp., 121 N.J. 421 (1991). Justice Handler in a unanimous decision permitted the admission of expert testimony based upon the expert’s methodology. Even if causation has not received general acceptance, the evidence may be found to be sufficiently reliable for admission if it is based on sound scientific methodology and if the scientific knowledge is offered by an expert who is sufficiently qualified. The New Jersey court defined methodology as that which involves data and information of the type reasonably relied upon by experts in a particular field. The decision went on to define that the qualifications of an expert are measured by education, knowledge, training or experience in the particular field of science for which they offer their expertise.
In Lindquist, Justice Coleman indicated that “in workers’ compensation cases a scientific causation that has not reached general acceptance may be found to be sufficiently reliable if it is based upon sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in scientific field.” This definition was applied to the petitioner’s expert who indicated that he has had many years of experience in evaluating those who had occupational exposures to hazardous substances.
The Supreme Court in Lindquist took judicial notice of scientific articles that were not admitted at trial. New Jersey’s highest Court deemed them to be relevant to support the opinion offered by the petitioner’s medical expert at trial. The respondent had not challenged the expert’s opinion based upon the scientific evidence that he had relied upon. The Court had previously recognized that offer of proof needed only to be competent. Gillian v. International Paper Co., 24 N.J. 230 (1957).
Even though a workers’ compensation system was legislatively intended to be an efficient and self-executing process that is not an administrative or economic burden. Courts have reasoned that the trustworthiness of novel scientific theories must be evaluated to determine its evidentiary value. In a similar case, the Florida Supreme Court reasoned that the imposition of a test to determine admissibility of scientific evidence in workers’ compensation matters would not impose a burden on the system. It probably would not cause an increase in costs and delay in the vast majority of cases. U.S. Sugar Corp. v. G.J. Henson, 823 So.2d 104 (FL. 2002).
The NJ Supreme Court determined workers’ compensation hearing officials should apply the reliance-based standard in workers’ compensation proceedings in order to determine the validity of novel scientific evidence. It therefore established a “gatekeeping” role for compensation judges and established a high judicial threshold.
There is no need for a Rule 104 type “gatekeeper hearing” to challenge the admissibility of the expert testimony with respect to medical causation in a workers’ compensation forum. The Lindquist decision reiterates the proposition that in New Jersey, a high judicial threshold exists in workers’ compensation cases for Judges to evaluate scientific evidence. The hearing officials are required to take an active role in this process. Judges will make their own assessments based on the qualifications or credentials of the validity of an expert scientific methodology including theoretical principles and research methods used in the accumulated data. This standard is very permissible and yields a high quantum of potential evidence that must be evaluated by the jurist.
The attorney’s role in now well defined. The attorney must have an understanding of fundamental scientific legal principles including standards of admission, scientific research methods, statistical proof and multiple regression theories. The attorney must apply the current issues and determine how science affects them. It can be assumed that reputable scientists and expert witnesses will disagree on points of view and therefore the attorney must ask the right questions and raise the right issues.
The New Jersey Supreme Court has crystallized the issue concerning the presentation and admission of scientific evidence in workers’ compensation proceedings. It has provided judicial guidance for a very difficult issue for which the Division of Workers’ Compensation has been struggling with for many years
This article is reprinted with permission from the NOVEMBER 3, 2003 issue of the New Jersey Law Journal. © 2003 New Jersey Law Journal
Cite as: 174 N.J.L.J. 432 (Nov. 3, 2003)