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Albany Law Review

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This Article surveys the cases relating to proof of cancer causation in two neighboring states: New Jersey and New York. In particular, we looked at motions in those cases to see how courts in New York and New Jersey were deciding challenges to the admissibility and legal sufficiency of scientific evidence of causation. Our major empirical conclusion is that toxic tort motion practices in the two states are dramatically different. In New Jersey, we found substantial litigation and an evolving body of law concerning the admissibility and legal sufficiency of expert testimony rivaling the developments occurring in federal courts. However, in New York there appears to be almost no counterpart to this movement. The major portion of this Article documents these findings.

The second portion of this Article explores several hypotheses about what might account for this difference between New York and New Jersey. We hypothesize that this difference might be due to one or a combination of the following:

The statute of limitations in effect in New York during the first half of the study period most likely restricted the total number of cancer cases that were litigated through the trial stage,

There is a difference in the availability of pretrial discovery of expert opinions between the two states, which makes the development of this type of pre-trial motion practice extremely difficult in New York,

New Jersey might facilitate the development of evidentiary doctrine by having codified evidence rules, which New York does not have.

There is a difference in the definitions of legal causation used in tort cases in the two states, which might reduce the incentive for defendants to bring dispositive motions in New York;

There may be a difference between the two states in judicial attitudes about the extent of the right to a jury trial.

We do not at the present time have an empirical basis for concluding which of these hypotheses (or others) best explain the differences we have observed between New York and New Jersey practice. Future inquiry might lead to such an answer.

Finally, in conclusion we suggest that in a state like New York, with limited opportunity for discovery of expert opinions, no comprehensive codification of evidence rules, and perhaps little incentive for defendants' counsel to try to develop doctrines for judicial control of “junk science,” this area of law might have little chance to develop at all, even on a case-by-case basis.



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