Maryland Adopts the Daubert Standard For Determining Expert Testimony Admissibility

Dani Alexis Ryskamp, J.D.

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— Updated on April 5, 2021

Maryland Adopts the Daubert Standard For Determining Expert Testimony Admissibility

Maryland has become the most recent state to adopt the Daubert standard for determining when a jury can hear expert witness testimony. In its August 28, 2020 decision in Rochkind v. Stevenson, the Maryland Court of Appeals ruled that the state’s courts must now also apply the Daubert factors when evaluating whether an expert’s testimony based on scientific evidence is admissible. The case was decided narrowly, by a 4-3 opinion. The Daubert standard now replaces the previously-applied Frye-Reed standard in Maryland.

Rochkind v. Stevenson

Rochkind v. Stevenson was originally filed in 2011 by Starlena Stevenson. Stevenson alleged that she had been exposed to high lead levels in her childhood home, which was partly owned by Stanely Rochkind. Stevenson claimed that these lead levels had caused or contributed to a number of health conditions, including attention deficit hyperactivity disorder (ADHD), oppositional defiant disorder (ODD), depression, and anxiety. In support of her claims, Stevenson presented the testimony of an expert witness who stated that Stevenson’s lead exposure caused her ADHD. Despite Rochkind’s objections, the trial court permitted the expert testimony.

After several trials, a jury returned a verdict for Stevenson of $1 million in economic damages and $2 million in non-economic damages. As Rochkind’s appeal to the Court of Special Appeals was pending, Stevenson filed for certiorari with the Maryland Court of Appeals, and Rochkind filed a cross-petition. The Maryland Court of Appeals was asked, among other things, to determine whether it was time to adopt the Daubert standard.

Daubert Versus Frye in Maryland Courts

In 1993, the U.S. Supreme Court held in Daubert v. Merrell Dow Pharmaceuticals that federal courts assessing the admissibility of scientific evidence under the Federal Rules of Evidence must do so according to an articulated set of factors. Prior to the Daubert decision, the federal courts and many states applied the Frye standard. In Frye, the U.S. Supreme Court held that expert witness testimony could be admitted if it was based on principles that were “generally accepted” in the expert’s field. Until recently, Maryland was one of the minority of states that continued to apply the Frye standard even after the federal ruling in Daubert.

In Rochkind, however, the Maryland Court of Appeals stated that Frye’s “generally accepted” test sometimes failed to keep up with the ever-changing knowledge and norms of science. Since a “generally accepted” standard may be based on old or outdated science, it increases the risk that expert witness’s testimony will also be based on old or outdated science. In addition, the Maryland Court of Appeals noted that the Frye test has not adequately accounted for the way scientific questions are pursued in some fields, such as psychology and epidemiology. In these fields, the question of what is “generally accepted” is itself under study, making this concept challenging to apply to expert witness testimony. The Maryland Court of Appeals chose to shift to Daubert because, unlike Frye, the Daubert standard incorporates general acceptance as just one factor among many. The Daubert test also asks courts to consider other issues of relevance to expert witness’s testimony on scientific or technical principles.

Changes for Expert Witnesses in Maryland

Both expert witnesses and the attorneys who work with them will need to adjust their approach to expert testimony in the wake of Rochkind. While the general acceptability of an expert witness’s approach remains an issue, it is no longer the central question governing whether the expert’s testimony will be accepted in Maryland courts. Instead, experts and lawyers must address additional points as well. For example, courts may now ask whether the expert’s theory has been tested or peer reviewed. They may ask what controls, if any, would be ordinarily applied to the expert’s methodology, and how those controls were addressed in this instance. They may also inquire as to whether and how the expert accounted for alternative explanations. The Daubert standard does not represent a complete departure from Maryland’s prior standards. It does, however, open up additional avenues of scrutiny that expert witnesses and attorneys must be prepared to address.

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