Maryland Officially Adopts Daubert
Maryland has officially adopted Daubert after the state's Court of Appeals issued its landmark August 28th Rochkind v. Stevenson opinion requiring trial courts to consider Daubert.
Over more than a decade, the Court of Appeals has incrementally adopted the Daubert standard, all the while leaving the Frye-Reed test as an additional requirement for trial courts applying Maryland Rule 5-702 governing the admissibility of expert testimony.
While it was a narrow 4-3 opinion, the change in the interpretation of Rule 5-702 should only make the way Maryland trial courts screen expert opinions less confusing. The courts were already supposed to consider Daubert and to merge the Frey-Reed and Rule 5-702(3) tests into a Daubert “analytical gap” test.
Like many states, Maryland's adoption of Daubert has its own twists on the 1993 Supreme Court Daubert decision. While Maryland has adopted the original five Daubert factors, it has added five additional factors based on federal court opinions subsequent to Daubert that have developed over the years to be used depending on the type of expert testimony given.
The first five Daubert factors must be considered:
- whether a 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; and
- whether a theory or technique is generally accepted.
And Maryland trial courts should also consider:
- 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 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 as careful as he [or she] would be in his [or her] regular professional work outside his [or her] paid litigation consulting; and
- 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 Rochkind opinion comes from the most recent appeal stems from a lawsuit filed in 2011 by Starlena Stevenson, who was allegedly exposed as a baby to high levels of lead in the home where she lived with her mother.
Four trials have been held so far in the case. Stevenson's pediatric expert witness, Cecilia Hall-Carrington, MD, filed reports concluding that, to “a reasonable degree of medical probability,” Stevenson was poisoned by lead at the home owned by Rochkind and that “her lead poisoning is a significant contributing factor” to her neuropsychological problems, including her ADHD. The property owner filed multiple motions in limine to exclude Hall-Carrington's testimony, requesting a Frye-Reed hearing each time. The court denied his requests. In the latest trial, the jury verdict awarded Stevenson $1 million in economic damages and $2 million in non-economic damages.
The Court of Appeals reversed that judgment and sent the case back to the trial court, requiring that it determine if the expert's testimony was admissible under Daubert.
In its opinion, the Court of Appeals emphasized that the precedents in Daubert, Joiner and Kumho Tire were essential to a court's reliability analysis and that the Daubert test is “a flexible one.” The critical aspect of a Daubert inquiry is to consider the relationship “between the methodology applied and the conclusion reached,” guarding against any “analytical gap.”