The Court of Appeals Opinion Closes Procedural Gaps and Aligns Legal Standards with Scientific Analysis
The Court of Appeals of Maryland adopted the Daubert standard, overturning Maryland’s long held Frye-Reed precedent for determining the admissibility of expert opinion. Rochkind v. Stevenson, No. 47, September Term 2019 (Aug. 28, 2020); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). While the change may seem sudden, the decision should be welcomed as the end to the three decades of confusion about how to simultaneously apply both Frye-Reed and Maryland Rule 5-702 (which imputes a Daubert-like analysis).
The New Expert Testimony Standard in Maryland
Maryland trial judges will now be expected to evaluate expert opinion pre-trial, and out of the hearing of the jury. The pre-trial hearing, moreover, should not be limited to the question of whether the scientific opinion is generally accepted as reliable in the relevant field of expertise (Frye-Reed), but considered among the ten Daubert factors that provide a framework for determining “whether a sufficient factual basis exists to support the expert testimony” Md. Rule 5-702 (3):
- Whether the theory or technique can be (and has been) tested;
- Whether a theory or technique has been subjected to peer review and publication;
- Whether a particular scientific technique has a known or potential rate of error;
- The existence and maintenance of standards and controls;
- Whether a theory or technique is generally accepted;
- Whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for the purposes of testifying;
- Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;
- Whether the expert has adequately accounted for obvious alternative explanations;
- Whether the expert is being careful as he [or she] would be in his [or her] regular professional work outside his [or her] paid litigation consulting;
- Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.
The Complications of Novel and Scientific Testimony Under Frye-Reed
Under Frye-Reed, Maryland courts undertook a complicated analysis to apply both Frye-Reed and Maryland Rule 5-702 to assess expert opinions concerning topics deemed “novel” and “scientific.” Where an expert opinion was novel and scientific, Maryland courts were required to conduct a pre-trial hearing to...
