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Kemp v. State

Supreme Court of New Jersey

October 10, 2001, Argued ; August 20, 2002, Decided

A-80 September Term 2000

Opinion

 [*415]  [**78]   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 [***11]  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 [**79]  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.

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 [***12]  and operated a free immunization clinic  [*416]  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.

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174 N.J. 412 *; 809 A.2d 77 **; 2002 N.J. LEXIS 1260 ***

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.

Prior History:  [***1]  On certification to the Superior Court, Appellate Division.

CORE TERMS

vaccine, rubella, scientific, methodology, trial court, virus, reliable, pregnancy, expert testimony, plaintiffs', studies, expert opinion, pregnant woman, deposition, infection, scientific community, summary judgment, attenuated, pregnant, syndrome, defendants', infants, birth, fetus, congenital, causation, general acceptance, susceptible, placenta, cases

Evidence, Testimony, Expert Witnesses, General Overview, Types of Evidence, Environmental Law, Hazardous Wastes & Toxic Substances, Toxic Torts, Admissibility, Expert Witnesses, Scientific Evidence, Daubert Standard, Procedural Matters, Preliminary Questions, Civil Procedure, Summary Judgment, Hearings, Standards for Admissibility