Maryland commits to Daubert for evaluating admissibility of expert testimony

BVWireIssue #216-2
September 16, 2020

expert testimony
daubert, expert testimony, admissibility, reliability, Frye

In a critical move, Maryland’s highest court recently changed the standard for the admission of expert testimony when it abandoned the existing two-channel approach in favor of Daubert. The decision aligns Maryland with the majority of states that follow Daubert, but it reflects a split (4-3) court.

Effort to ‘streamline’ process: In 1923, the U.S. Supreme Court set out the Frye “general acceptance” test for the admissibility of expert testimony based on new or novel scientific principles. In 1978, Maryland’s Court of Appeals (state’s supreme court) adopted Frye in the Reed v. State decision. The test became known as the Frye-Reed standard. In 1993, the U.S. Supreme Court, in the Daubert case, held that Federal Rule of Evidence (FRE) 702 superseded Frye. For its part, Maryland adopted Rule 5-702, the counterpart to FRE 702, while holding onto Frye-Reed.

In theory, the relationship between the two standards is clear. Testimony that discusses novel scientific theories must meet the Frye-Reed standard and the Rule 5-702 requirements. Expert testimony dealing with nonscientific evidence must only meet the requirements of Rule 5-702. In practice, as the court’s majority in the recent opinion notes, “[T]he Frye-Reed standard—and its relationship to Maryland’s Rule 5-702—holds a confusing grip on Maryland bench and bar.” Since 1978, the Frye-Reed test “slowly morphed into a ‘Frye-Reed Plus’ standard, implicitly and explicitly relying on and adopting several Daubert principles,” the majority opinion states.

The court had an opportunity to move to Daubert in an involved tort case in which the plaintiff alleged physical, psychological, and economic harm from lead exposure while living in the defendant’s apartment building. At trial, the plaintiff offered medical expert testimony on causation, i.e., that she was poisoned in the defendant’s building and that the lead exposure caused her “cognitive deficits.” The defendant vigorously challenged the expert testimony, leading to four jury trials and several appeals and culminating in petitions from both sides to the Court of Appeals. The key question was whether the court should adopt the Daubert standard.

The defendant said yes and asked the court to apply Daubert to the present case and find the opposing expert’s causation opinion inadmissible under Maryland Rule 5-702. The plaintiff argued against Daubert but also claimed that, even under Daubert, the medical expert’s testimony would be admissible.

After a lengthy discussion of the existing approach, a majority of judges found it was appropriate to adopt Daubert. The current two-channel approach had led to a “duplicative analytical process” and had “muddied” the waters of admissibility, the majority said. “Instead of perpetuating a process wherein expert testimony must pass through Frye-Reed and Rule 5-702, we implement a single standard by which courts evaluate all expert testimony: Daubert.” Adopting Daubert will “streamline” the process and permit trial courts “to evaluate all expert testimony—scientific or otherwise—under Rule 5-702.” The majority opinion provides a list of 10 factors that are “persuasive in interpreting Rule 5-702,” five Daubert factors and five additional factors courts have used to determine whether expert testimony is sufficiently reliable. The court remanded for a new trial “consistent with this opinion.”

Dissent: This was not the “right case” to make the change, the three-judge dissent said, noting the issue of admissibility in this case consistently was decided under Rule 5-702, not Frye-Reed. The dissent also suggested the adoption of Daubert might benefit defendants and said any implementation of Daubert required at least a study of the impact of Daubert on minority groups and “people of limited financial means as potential litigants.” No such study was performed here.

A digest of Rochkind v. Stevenson, 2020 Md. LEXIS 414 (Aug. 28, 2020), and the court’s opinion will be available soon at BVLaw.

Please let us know if you have any comments about this article or enhancements you would like to see.