Legal Update: Maryland Adopts Daubert Standard for Evaluating Experts At Trial
The Maryland Court of Appeals has changed the focus of whether or not to admit an expert at trial under Maryland Rule of Evidence 5-702 to the federal Daubert standard. This standard focuses on the fundamental question of whether or not an expert's opinion intended to be offered is reliable. Rochkind v. Stevenson, Slip Op., 471 Md. 1, 236 A.3d 630 (Aug. 28, 2020).
In Rochkind, the Court of Appeals took up a lawsuit over alleged childhood lead poisoning, which had caused catastrophic damage to the adult in question, and who sued the place she lived when a child and allegedly exposed to lead. Her counsel brought in an expert, of course, to analyze and opine that the adult's cognitive problems were related to this long-ago, childhood lead exposure.
After four trials and various motions and reversals, the matter went again to the Court of Appeals. Rochkind, Slip Op. at pp. 1-11. The Court of Appeals decided the matter of this expert's appearance was mishandled. In doing so, the Court changed the standard of how all expert witnesses shall be evaluated before admitted or excluded from trial before a judge or jury.
Beforehand, Maryland focused its inquiry on whether the expert's opinion was based on generally accepted sound science. Even if so, this sound science needed to be reliability applied to the facts at hand. This standard was referred to as the Frye-Reed test, and it had changed over time. Rochkind, Slip Op. at pp. 12-33.
In adopting Rochkind, Maryland's highest court decided that it was time to focus on reliability under Md. Rule 5-702. The move to Daubert cements this focus. Slip Op. at p. 4 (noting that in Daubert "the Supreme Court provided a list of flexible factors to help courts determine the reliability of expert testimony.").
The factors endorsed by the Court of Appeals, which are non-exclusive, help guide the interpretation of Maryland 5-702 on this point of whether the opinion to be offered is reliable or junk science. E.g,., Slip Op. at pp. 47-50.
The Court also noted that the trial court below should have held a hearing on an expert challenge, if raised, "[a]s a practical matter." Slip Op. at p. 35.
While some practioners will worry about how the Daubert factors will be applied going forward, the Court in its decision did not reject all prior case law. Rather, the high court found prior case law about the "analytical gap" still relevant and especially persuasive in making this change.
Gregg H. Mosson, Esq.
Mosson Law, LLC
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