What Have We Learned in Nearly One Year Since the "Jurisprudential Drift" in Maryland Regarding Expert Testimony?

June 25, 2021

By: Stephen B. Stern

     On August 28, 2020, in Rochkind v. Stevenson, 471 Md. 1, 236 A.3d 630 (2020), the Maryland Court of Appeals overruled the Frye-Reed standard previously applied to reviewing/admitting expert testimony and, instead, adopted the standard set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (the “Daubert Standard” or “Daubert”).  “The impetus behind [the Court of Appeals’] decision to adopt Daubert [was] [the Court’s] desire to refine the analytical focus when a court is faced with admitting or excluding expert testimony.”
     In issuing its decision, the Court of Appeals (which is the highest court in Maryland) explained that the previous standard under “Frye centered on whether scientific principles or discoveries were generally accepted in a relevant scientific community.”  “Daubert, by contrast, refocuses the attention away from acceptance of a given methodology . . . and centers on the reliability of the methodology used to reach a particular result.”  In deciding to refocus trial courts on the reliability of testimony, rather than methodology, the Court of Appeals relied in part on commentary from the Honorable Paul W. Grimm, where he explained, “[u]nder Daubert, the parties and the trial court are forced to reckon with the factors that really do determine whether the evidence is reliable, relevant and ‘fits’ the case at issue.” (emphasis added in Rochkind by Court of Appeals).  Indeed, this was one of the main flaws with Frye.  According to the Court of Appeals, “[o]ur Frye-Reed jurisprudence gave trial courts a stated ‘end’ – reliable methodology – without providing the ‘means’ to achieve it.”  To this end, the Court of Appeals noted that “[u]nder Daubert, judges are charged with gauging only the threshold reliability – not the ultimate validity – of the particular methodology or theory.”  (emphasis in original).  
     The Court of Appeals identified ten Daubert factors that courts should apply when evaluating whether an expert’s testimony is sufficiently reliable to present to the factfinder, with the second five focused more on the reliability of the expert’s testimony:

(1)    whether a theory or technique can be (and has been) tested;    
(2)    whether a theory or technique has been subjected to peer review and publication;    
(3)    whether a particular scientific technique has a known or potential rate of error;    
(4)    the existence and maintenance of standards and controls;     
(5)    whether a theory or technique is generally accepted;    
(6)    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;    
(7)    whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;    
(8)    whether the expert has adequately accounted for obvious alternative explanations;
(9)    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
(10)    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 Court of Appeals emphasized that courts need to be “flexible” when applying these factors, and courts should not be constrained to apply each of the factors in every case.   Rather, “[a] trial court may apply some, all, or none of the factors depending on the particular expert testimony at issue.”  If a court ultimately “conclude[s] that there is simply too great an analytical gap between the data and the opinion proffered[,]” it is supposed to exclude the opinion.

     The Court of Appeals noted that the trial court’s role in performing this “gatekeeping function” is limited, however.  The Court of Appeals stated that, “[u]nder Daubert, trial judges are not required to make a determination of the ultimate scientific validity of any scientific propositions.  Instead, they need only make a much more limited inquiry:  whether sufficient indicia of legitimacy exist to support the conclusion that evidence derived from the principle may be profitably considered by the fact finder at trial.”  

     As one trial court judge noted at a recent hearing, it is unclear whether this limited role requires trial court judges to have an evidentiary hearing each time an expert opinion is presented.  This judge concluded that Rochkind does not require such a hearing in each instance, but nevertheless ordered such a hearing to evaluate the reliability of the opinion that was being challenged.  To date, there has been limited guidance from subsequent appellate decisions as to how this limited function should be conducted by trial courts.  In one case, Ross v. Ross, Case No. 1473, 2020 Md. App. LEXIS 1200 (Md. App. Dec. 18, 2020), the Court of  Special Appeals (Maryland’s intermediate appellate court) concluded that the trial court judge “did not err in failing to hold an in limine hearing to test the reliability and validity of the theory” at issue, but, shortly before reaching that conclusion, the Court of Special Appeals specifically noted that the issue of whether the trial court judge “needed to entertain his gate-keeping role, in an in limine fashion, under Frye-Reed or Daubert standards [was] not properly before [the court].”  Thus, this decision by the Court of Special Appeals, which is not published, appears to be of limited utility.  Similarly, in Pierre v. State, Case No. 2682, 2021 Md. App. LEXIS 206 (Md. App. Mar. 10, 2021), the Court of Special Appeals (in another unpublished opinion) vacated the decision of the trial court and ordered a Daubert hearing (along with the production of certain materials that were not produced previously) to determine whether an expert’s opinion satisfied or failed the Daubert Standard and, depending on the outcome of the hearing, the conviction would be reinstated or a new trial would be ordered.

     While these two post-Rochkind unreported Court of Special Appeals decisions may not be cited to any courts in Maryland, it is noteworthy that in one instance the failure to conduct a Daubert hearing was upheld (even though the question was not before the court) and in the other instance a Daubert hearing was ordered.  This appears to be an issue that will continue to develop as more cases make their way through the appellate courts.  In the meantime, it is worth noting that, in issuing its decision in Rochkind, the Court of Appeals relied on the United States Supreme Court decision in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), to note that a trial court should be given “broad latitude when it decides how to determine reliability.” (emphasis in Kumho Tire).