WEIRD SCIENCE: MARYLAND’S NEW TEST FOR THE ADMISSIBILITY OF EXPERT TESTIMONY.
For more than forty years, Frye-Reed endured as Maryland’s test for the admissibility of expert testimony based on novel scientific principles or techniques. Named after its near century-old progenitor, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and the Maryland case that adopted it, Reed v. State, 283 Md. 374 (1978), the test asks whether the scientific principle or technique at issue is “generally accepted” in the relevant scientific community. Before the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Frye test was the predominant standard for the admissibility of scientific evidence in state and federal courts. Daubert, however, held that Frye was superseded by Federal Rule of Evidence 702. The Supreme Court interpreted Rule 702 as providing for a “flexible” inquiry focused on the reliability of evidence, under which “general acceptance” is only of several relevant factors. Id. at 594–95. In years following Daubert, the majority of states followed the federal courts and replaced the Frye test with Daubert. Maryland was one of the few hold outs, but no longer.
- Out with the old . . .
In Rochkind v. Stevenson, 471 Md. 1 (2020), reconsideration denied (Sept. 25, 2020), the Maryland Court of Appeals did away with Frye-Reed and adopted Daubert, completing a switch that the court has been foreshadowing for the past decade. Under the new (to Maryland) Daubert standard, trial courts are empowered to assess the reliability of all types of expert testimony (not just opinions based on novel science) by considering ten non-exclusive factors:
(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, echoing the Supreme Court’s guidance on the application of Daubert, emphasized that this list of factors “neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a [trial] court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Rochkind, 471 Md. at 37 (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141–42 (1999)) (alteration in Rochkind). The new test thus empowers trial courts by moving away from the “uncompromising” general-acceptance standard to a multi-factor, ad hoc approach that permits the admission of expert testimony based on novel or controversial principles so long as the proponent of the evidence makes a threshold showing of its reliability. See Rochkind, 471 Md. at 14, 33.
- The immediate consequences.
Although Maryland’s transition to the new test has been eased somewhat by the previous incorporation of certain aspects of Daubert into Maryland’s Frye-Reed jurisprudence, see Rochkind, 471 Md. at 16–27 (detailing Maryland’s “drift” towards Daubert), the wholesale adoption of Daubert will have at least three immediate and significant consequences for Maryland trial judges and litigators.
- Less jurisprudential confusion, more analytical complexity.
First, the new test eliminates a confusing redundancy that developed under Frye-Reed case law while also complicating the analysis by replacing a single dispositive factor (general acceptance) with a case-specific “kitchen sink” approach. As originally conceived, the Frye-Reed test simply asked whether the scientific technique used to form an expert opinion was “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye, 293 F. at 1013; see Reed, 283 Md. at 381. The Frye-Reed test thus applied only “to methodologies, not the conclusions drawn from applying the methodologies.” Giddens v. State, 148 Md. App. 407, 415 (2002). More recently, however, the Frye-Reed test incorporated the “analytical gap” concept from Daubert jurisprudence, under which “generally accepted methodology . . . must be coupled with generally accepted analysis.” Blackwell v. Wyeth, 408 Md. 575, 608 (2009). In other words, Frye-Reed’s scope was expanded “to include not only scientific methods, but also scientific conclusions.” Rochkind, 471 Md. at 16.
This expansion of Fry-Reed “muddied [Maryland’s] approach to expert testimony” by creating an overlap with Maryland Rule 5-702(3), which requires trial courts to consider “whether a sufficient factual basis exists to support the expert testimony.” See Savage v. State, 455 Md. 138, 186 (2017) (Adkins, J., concurring). As a result, trial courts were in some cases required “to analyze the reliability of an expert’s methodology twice—once under Frye-Reed and again under Rule 5-702(3).” Id. at 184. The adoption of Daubert “eliminate[s] this repetition” by making Rule 5‑702, as applied using the Daubert factors, the only test for admissibility. Id. at 184.
Although the test for admissibility is now streamlined, it also has the potential to be far more complex in its application. Whereas Frye-Reed was concerned with only one factor—general acceptance—Daubert permits a trial court to consider (and a litigator to argue) essentially any factor that bears on reliability. As Rochkind explained: “all of the Daubert factors are relevant to determining the reliability of expert testimony, yet no single factor is dispositive in the analysis. A trial court may apply some, all, or none of the factors depending on the particular expert testimony at issue.” 471 Md. at 37. Daubert’s multi-factor test for reliability therefore demands more from litigators and judges, a point which Rochkind embraced by quoting from Judge Paul W. Grimm’s opinion in United States v. Horn:
Under 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. Focusing on the tests used to develop the evidence, the error rates involved, what the learned publications in the field have said when evaluating it critically, and then, finally, whether it has come be generally accepted, is a difficult task. . . .
Rochkind, 471 Md. at 37 (quoting United States v. Horn, 185 F. Supp. 2d 530, 553 (D. Md. 2002)) (emphasis in Rochkind).
Daubert, in sum, requires trial judges and litigators to be well versed in the facts, theories, and methodologies underlying an expert’s testimony. See Kumho Tire, 526 U.S. at 152 (explaining that the “objective” of Daubert’s “gatekeeping” requirement is to “make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field”). That said, trial judges are not expected to be “amateur scientists.” See Rochkind, 471 Md. at 33. They need not determine “the ultimate scientific validity of any scientific propositions”; rather the inquiry is limited to determining “whether sufficient indicia of legitimacy exist to support the conclusion that evidence derived from the principle may be profitably considered by a fact finder at trial.” Id. at 34 (citation and internal quotation marks omitted).
- Open season on “generally accepted” scientific evidence.
The second immediate and significant consequence of Rochkind is that expert testimony that was previously considered generally accepted under Frye-Reed and therefore admissible as a matter of course may now be subject to challenge as unreliable under Daubert. Rochkind indicated as much by again quoting from Judge Grimm’s opinion in Horn: “The shift to Daubert ‘may mean, in a very real sense, that “everything old is new again” with respect to some scientific and technical evidentiary matters long considered settled.’” Rochkind, 471 Md. at 38 (quoting Horn, 185 F. Supp. 2d at 554). At the same time, parties may also feel emboldened to offer expert testimony based on novel principles or techniques that would not have passed muster under Frye-Reed but may nonetheless satisfy Daubert’s reliability test. At least in the short term, then, the switch to Daubert may lead to a burst of litigation over the admissibility of expert testimony as Maryland litigators test the boundaries of the new standard.
In theory, the Daubert standard should lead to the admission of more expert testimony. As Daubert explained, Frye’s “general acceptance” requirement is “at odds with the ‘liberal thrust’ of the Federal Rules and their general approach of relaxing the traditional barriers to ‘opinion’ testimony.” 509 U.S. at 588 (citation and some quotation marks omitted). Thus, “conventional devices,” such as cross-examination, “rather than wholesale exclusion under an uncompromising ‘general acceptance’ test, are the appropriate safeguards where the basis of scientific testimony meets the standards of Rule 702.” Id. at 596. In federal courts, though, Daubert has had the opposite effect. As one commentator has explained, “[i]n the civil context, Daubert has empowered defendants to exclude certain types of scientific evidence, substantially improving their chances of obtaining summary judgment and thereby avoiding what are perceived to be unpredictable and often plaintiff-friendly juries.” Edward K. Cheng & Albert H. Yoon, Does Frye or Daubert Matter? A Study of Scientific Admissibility Standards, 91 Va. L. Rev. 471, 473 (2005)
- Potential inconsistencies in outcomes.
The third immediate effect of the switch to Daubert is that trial courts will now have far more leeway to admit or exclude expert testimony. The standard of review under Frye-Reed was de novo, but Rule 5-702 rulings are reviewed for an abuse of discretion. Rochkind, 471 Md. at 37. This means that a finding of admissibility in one case does not assure that the same evidence will be admissible in another—a situation that the Frye-Reed test “largely avoided.” Reed, 283 Md. at 388. Although the court in Rochkind conceded that “some inconsistency is inevitable,” it was “persuaded that a marginal amount of inconsistency is preferable given that th[e] [Daubert] standard will more accurately distinguish ‘good science’ from ‘bad science’ than Frye’s general acceptance test.” Id. at 34 (alteration, citations, and some internal quotation marks omitted). The court’s cost-benefit calculus may be correct, but these “marginal” inconsistencies could have major consequences in individual cases.
Consider firearms toolmark identification evidence (colloquially referred to as “ballistics”) as one example. For years, the techniques underlying firearms toolmark evidence have been considered generally accepted, see, e.g., Patterson v. State, 229 Md. App. 630, 642 (2016), meaning that the proponents of such evidence (usually prosecutors in criminal cases) could count on its admissibility. Now, however, different trial courts acting within their discretion could reach different conclusions about the reliability of firearms toolmark evidence. See David H. Kaye, Firearm-Mark Evidence: Looking Back and Looking Ahead, 68 Case W. Res. L. Rev. 723, 728 (2018) (cataloguing different restrictions on firearm toolmark identification evidence imposed by federal district courts applying Daubert). This could in theory mean the difference between a conviction in one case and an acquittal or dropped charges in another.
- Will it really make a difference?
Whether the switch from Frye-Reed to Daubert will actually change outcomes in practice remains to be seen. Scholarly research quoted by the majority in Rochkind found that a “state’s choice of scientific admissibility standard does not have a statistically significant effect . . . [and] a state’s adoption of Frye or Daubert makes no difference in practice.” 471 Md. at 29 n.15 (quoting Cheng, supra, 91 Va. L. Rev. at 503) (alterations in Rochkind). The three Rochkind dissenters countered with their own research finding “that application of the Daubert standard ‘disproportionately and negatively affects claimants of color.’” Id. at 54 (Watts, J., dissenting) (quoting Andrew W. Jurs and Scott DeVito, A Tale of Two Dauberts: Discriminatory Effects of Scientific Reliability Screening, 79 Ohio St. L.J. 1107, 1144 (2018)).
Regardless of Daubert’s effect on outcomes, Maryland attorneys and judges must adapt to a new rubric for the admission of expert testimony. Fortunately, there is no shortage of case law to guide the way, as Daubert has been the law in federal courts for more than a quarter-century and thirty-eight states have adopted it (or something like it). See Savage, 455 Md. at 178 n.3 (collecting cases).
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Silverman Thompson’s attorneys are well-prepared to guide clients through this transition. Our team’s extensive experience ensures that our clients will be well-positioned to successfully defend their experts from exclusion and attack any shaky experts offered by their opponents. If you have questions about this article, please contact Todd Hesel at thesel@silvermanthompson.com. If you have questions how we could assist you in complex litigation, please call Bill Sinclair at bsinclair@silvermanthompson.com. They also can be reached at (410) 385-2225.