Kemp ex rel. Wright v. State

• Citation: 174 N.J. 412,809 A.2d 77,2 Cal. App.4th 1516
• Parties: Delisha KEMP, a minor, by her parent and natural guardian, Debra WRIGHT, and Debra Wright, in her own right, Plaintiffs-Appellants, v. STATE of New Jersey, County of Burlington, Riverside Board of Education and Riverside High School, Defendants-Respondents, and John Does Manufacturers (1-10); Richard Roes Distributors (1-10); and Robert Does (1-10) (fictitious names) individually, jointly, severally, and/or in the alternative, Defendants.
• Decision Date: 20 August 2002
• Court: United States State Supreme Court (New Jersey)

809 A.2d 77

174 N.J. 412

2 Cal. App.4th 1516

Delisha KEMP, a minor, by her parent and natural guardian, Debra WRIGHT, and Debra Wright, in her own right, Plaintiffs-Appellants, v. STATE of New Jersey, County of Burlington, Riverside Board of Education and Riverside High School, Defendants-Respondents, and John Does Manufacturers (1-10); Richard Roes Distributors (1-10); and Robert Does (1-10) (fictitious names) individually, jointly, severally, and/or in the alternative, Defendants.

Supreme Court of New Jersey.

Argued October 10, 2001.

Decided August 20, 2002.

David K. Cuneo, Collingswood, argued the cause for appellants (Cuneo & Hensler, attorneys).

Glenn R. Jones, Deputy Attorney General, argued the cause for respondent State of New Jersey (John J. Farmer, Jr., Attorney General of New Jersey, attorney; Michael J. Haas, Assistant Attorney General, of counsel; Karen L. Jordan, Deputy Attorney General, on the brief).

Timothy E. Annin, argued the cause for respondent County of Burlington.

Frank G. Basile, Vineland, argued the cause for respondents Riverside Board of Education and Riverside High School (Basile & Testa, attorneys; Mr. Basile and Renee E. Scrocca, on the brief).

The opinion of the Court was delivered by STEIN, J.

In this appeal we consider whether plaintiffs' expert's opinion, determined by the trial court to be scientifically unreliable, properly was excluded from evidence. Plaintiffs, Delisha Kemp (Delisha), a minor, by her mother and guardian, Debra Wright (Debra), and Debra Wright individually, appeal from the judgment of the Appellate Division affirming the trial court's grant of summary judgment dismissing their personal injury action against defendants State of New Jersey, Burlington County and Riverside Board of Education (Riverside).

Plaintiffs allege in their complaint that defendants negligently had administered a rubella virus vaccine to Debra while she was pregnant with Delisha, claiming that the vaccine caused Delisha to develop Congenital Rubella Syndrome (CRS). The trial court determined that plaintiffs' medical expert's opinion, elicited in the course of defendants' deposition of the expert, that concluded that the rubella vaccine was the proximate cause of Delisha's CRS condition could not be presented to the jury because it was scientifically unreliable. Because the expert's testimony was essential to plaintiffs' prima facie case, the trial court granted defendants' motion for summary judgment. The Appellate Division affirmed. Although we agree with the courts below that the expert's opinion in its present form is not admissible, we now reverse and remand to the Law Division to conduct a N.J.R.E. 104 hearing and redetermine the admissibility of the expert's testimony.

I

A

During the spring of 1975, an outbreak of measles and rubella of near epidemic proportions occurred in Burlington County. In response, Burlington County health officials, with the cooperation of the Riverside Board of Education and the New Jersey Department of Health, organized and operated a free immunization clinic at Riverside High School. On April 18, 1975, Debra, a senior at the high school, was given a rubella vaccine at the clinic. Debra either was pregnant or soon to become pregnant when she received the vaccine. On December 28, 1975, she gave birth to Delisha. Delisha was born with CRS and is currently afflicted with severe birth defects that require continuing medical treatment.

In 1973 and 1974, the product information provided for the rubella vaccine specifically recommended that pregnant women not be given the vaccine. The product information also recommended that women of child-bearing age not be considered for vaccination unless there was no possibility of pregnancy at the time of the injection or in the following two to three months. Defendants state that the standard practice at the Riverside High School clinic was to counsel all females of childbearing age about the risks of vaccination and to refrain from inoculating any female who was pregnant or sexually active. They also assert that a pre-vaccination screening was conducted during which students were questioned about the status of their sexual activity.

In October 1992, plaintiffs filed a complaint alleging that the rubella vaccination that defendants administered to Debra caused an infection in the fetus resulting in Delisha's CRS. The plaintiffs further alleged that defendants were negligent in failing to ascertain prior to her vaccination whether Debra was pregnant or sexually active. In addition, plaintiffs alleged that Debra was not informed that she should not be vaccinated if she were pregnant because the vaccine could cause severe birth defects to an unborn child.

At an early state of the litigation, the Law Division dismissed plaintiffs' complaint, holding that defendants were immune from suit pursuant to the provisions of the Tort Claims Act, N.J.S.A. 59:1-1 to N.J.S.A. 59:13-10. The Appellate Division affirmed. However, this Court reversed the judgment of the Appellate Division and reinstated plaintiffs' complaint. Kemp v. State, 147 N.J. 294, 297, 687 A.2d 715 (1997).

Defendants subsequently moved again for summary judgment, asserting on the basis of their deposition of plaintiffs' expert that plaintiffs had failed to provide a scientifically reliable medical expert report to demonstrate that the rubella vaccination was the cause of Delisha's CRS. Defendants claimed that the report submitted by plaintiffs' medical expert constituted a net opinion, was scientifically unreliable and thus inadmissible. The trial court, without conducting an evidentiary hearing on the issue of the admissibility of expert's opinion, determined that plaintiffs' expert, Dr. George Huggins, failed to proffer a scientifically acceptable basis for his opinion that the rubella immunization Debra received in April 1975 caused Delisha to develop CRS. Accordingly, the trial court held that Dr. Huggins' opinion was inadmissible. Because plaintiffs were unable to prove their prima facie case without Dr. Huggins' report, the court granted defendants' motion for summary judgment dismissing plaintiffs' complaint. Plaintiffs' motion for reconsideration was denied.

In an unpublished opinion, the Appellate Division affirmed the ruling of the trial court that Dr. Huggins' opinion was inadmissible. The Appellate Division, quoting Rubanick v. Witco Chemical Corp., 125 N.J. 421, 449, 593 A.2d 733 (1991), observed that "Dr. Huggins' opinion that a causal relation exists is not sufficiently reliable because it is not `based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field.'" The court continued:

Indeed it can be said that he applied no methodology at all in reaching his conclusion. He acknowledges that no study, report, medical journal, treatise, epidemiological or toxicology data, or other recognized authority has demonstrated a correlation between attenuated rubella vaccines and congenital rubella syndrome in a child born with congenital rubella syndrome. His opinion has not been the subject of peer review or adopted by any recognized scientific disciplines. Because he could identify no such data or scientific study, it cannot be said that his opinion is founded on a scientifically tested and accepted methodology recognized by the medical community.

We granted plaintiffs' petition for certification. Kemp v. State, 167 N.J. 635, 772 A.2d 937 (2001).

B

Dr. Huggins' credentials are impressive. He presently is Chairman of the Department of Obstetrics & Gynecology at Johns Hopkins Bayview Medical Center in Baltimore, Maryland. Since 1995, he has been a Professor of Obstetrics and Gynecology at Johns Hopkins University School of Medicine. Dr. Huggins has held faculty appointments at the University of Mississippi School of Medicine and the University of Pennsylvania School of Medicine. He also has held a fellowship appointment as a visiting professor with the Department of Community Medicine and General Practice at Oxford University in Oxford, England. Dr. Huggins has written numerous articles and book chapters on women's reproductive health.

During discovery, Dr. Huggins submitted two reports on behalf of plaintiffs dated October 22, 1990, and November 6, 1990, and was deposed by defendants' counsel on June 13, 1997. Dr. Huggins concluded in his reports that it could be determined within a reasonable degree of medical certainty that Delisha suffers from CRS as a result of the rubella immunization that Debra received in April 1975. He also concluded that "[b]ecause the program and care givers did not determine the pregnancy status or the possibility of pregnancy in Delisha Kemp's mother, in my opinion, they significantly deviated from standard of care at that time."

Dr. Huggins explained in his report and testified at his deposition that his methodology included a review of Debra's obstetrical admission records from Burlington County Memorial Hospital where Delisha was born. He also reviewed several medical reports by various doctors, including a cardiologist, a neurologist and an ophthalmologist, each of whom had evaluated Delisha's condition after her birth. Dr. Huggins testified during his deposition that those medical reports established that Delisha has a "constellation of mental retardation, microcephaly, cardiac abnormalities, cataracts, hearing loss, which is compatible with rubella syndrome," and that Delisha has what is medically recognized and diagnosed as CRS.

Dr. Huggins also testified that the rubella vaccine, which is a live attenuated virus, is capable of crossing the placenta and entering the developing fetus or embryo. Dr. Huggins explained that that attribute of the vaccine has been established through scientific studies that confirm the presence of the attenuated rubella virus in the fetal tissue of the offspring of women who...