Rochkind v. StevensonRochkind v. Stevenson
Over four decades ago, the Court of Appeals in Reed v. State, 283 Md. 374 (1978), adopted the “general acceptance” test—first espoused in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)—for the admissibility of expert testimony based on new or novel scientific principles. In 1993, the Supreme Court of the United States, in adopting a new “reliability” standard for admissibility of expert testimony in federal courts, endorsed a nonexclusive list of reliability factors. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In that case, the Supreme Court held that
The Court of Appeals adopted the Daubert reliability factors, overruling Frye and Reed. When interpreting
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court of the United States upset the applecart of the admissibility of expert scientific testimony. There, the Supreme Court held that
In the forty years that followed Reed, Maryland experienced a jurisprudential drift: the Frye-Reed standard announced in 1978 slowly morphed into a ”Frye-Reed Plus” standard, implicitly and explicitly relying on and adopting several Daubert principles. For
BACKGROUND
A. Ms. Stevenson‘s Lead Paint Exposure and Medical History.1
In 1991, a 10-month-old Starlena Stevenson and her mother, Charlena Montgomery, moved to 3823 Fairview Avenue (“Fairview“), where they lived for 15 months. At the time, Fairview was owned in part by Mr. Rochkind. According to Ms. Montgomery, Fairview contained chipping and flaking paint on the windowsills, floors, and front porch. Blood lead level tests taken while Ms. Stevenson was a resident of Fairview revealed that she had a blood lead level of 13 to 14 micrograms per deciliter—a number that dropped to 11 micrograms per deciliter just two months later when she was no longer a resident of that property.
Ms. Stevenson, now 29 years old, has a family history of learning disabilities and has faced numerous medical, psychological, and socioeconomic obstacles. She was born to a single teenage mother and has no relationship with her father. As a child, she was diagnosed with Attention Deficit Hyperactivity Disorder, commonly referred to as ADHD,
Since graduating from high school in 2008, Ms. Stevenson has been sporadically employed, working as a patient transporter for the University of Maryland Medical System, a cashier for Royal Farms, and a babysitter. In each case, Ms. Stevenson struggled to stay employed due to her attentional deficits, hyperactivity, and impulsivity—symptoms which she claims resulted from her exposure to lead paint.
B. The First and Second Trials.
In December 2011, Ms. Stevenson filed suit against Mr. Rochkind in the Circuit Court for Baltimore City for negligence and violations of the Maryland Consumer Protection Act. In July 2012, lead testing conducted at Fairview detected lead-based paint on twenty-two interior surfaces and nine exterior surfaces. In preparation for the litigation, Cecilia Hall-Carrington, M.D., a pediatrician, filed a report concluding to “a reasonable degree of medical probability” that Ms. Stevenson was poisoned by lead at Fairview, and that “her lead poisoning is a significant contributing factor” to her neuropsychological problems, including her ADHD.
Before trial, Mr. Rochkind filed four motions in limine seeking to exclude Dr. Hall-Carrington‘s testimony. He argued that she should not be permitted to testify that Fairview was a source of Ms. Stevenson‘s lead exposure or that such exposure caused Ms. Stevenson‘s “cognitive deficits,” including, specifically, ADHD. Mr. Rochkind requested
The partial new trial began in October 2014. Before trial, Mr. Rochkind renewed his motions in limine to exclude Dr. Hall-Carrington‘s ADHD testimony, which were again denied. The court declined to hold a Frye-Reed hearing, explaining that Dr. Hall-Carrington‘s opinions are “not new science” or “new conclusions.” It admitted her testimony under
At trial, Dr. Hall-Carrington testified as to both general and specific ADHD causation. She explained that studies show that lead exposure can cause “attention problems[] or ADHD” generally. She also opined “within a reasonable degree of medical probability” that lead exposure caused Ms. Stevenson‘s ADHD specifically. To support her testimony, Dr. Hall-Carrington relied on a publication from the Environmental Protection Agency reviewing the most recent studies on the effects of lead exposure in children, titled “Integrated Science Assessment for Lead” (the “EPA-ISA“).2 She testified
The jury awarded Ms. Stevenson $753,000 in economic damages and $700,000 in noneconomic damages. Due to the statutory cap on noneconomic damages, the court reduced the total judgment to $1,103,000. Mr. Rochkind filed a motion for a new trial, which the court denied.
On appeal, the Court of Special Appeals held, among other things, that the circuit court did not err in failing to hold a Frye-Reed hearing on Dr. Hall-Carrington‘s general causation testimony because the studies she relied upon did not reach novel conclusions and “used methodologies that are generally accepted” in the scientific community. Rochkind v. Stevenson, 229 Md. App. 422, 464 (2016). The intermediate appellate court also held that the circuit court properly admitted Dr. Hall-Carrington‘s specific causation testimony under Rule 5-702 because her opinion “was supported by an adequate factual basis and was sufficient to allow the jury to decide the causal connection, if any, between lead exposure and Ms. Stevenson‘s ADHD.” Id. at 465. Mr. Rochkind appealed.
C. Stevenson I.
In his first appeal to this Court, Mr. Rochkind argued that Dr. Hall-Carrington‘s testimony should have been excluded because it failed to meet the requirements of both
D. The Third and Fourth Trials.
Before the third trial, Mr. Rochkind filed a motion, once again attempting to exclude Dr. Hall-Carrington‘s specific causation opinions. The circuit court denied the motion and request for a pre-trial
Not to be deterred, in trial number four, Dr. Hall-Carrington testified that lead exposure caused Ms. Stevenson‘s attentional deficits, hyperactivity, and impulsivity problems, once again relying solely on the epidemiological studies cited in the EPA-ISA. This time, however, Dr. Hall-Carrington did not mention “ADHD,” specifically. The jury awarded Ms. Stevenson $1 million in economic damages and $2 million in non-economic damages.
E. Post-Trial Motions and Appeal.
Mr. Rochkind filed a Motion for New Trial, Judgment Notwithstanding the Verdict (“JNOV“), and Remittitur. The circuit court denied Mr. Rochkind‘s motion for a new trial and JNOV but reduced damages pursuant to the statutory cap. Mr. Rochkind appealed to the Court of Special Appeals. While that appeal was pending, Ms. Stevenson filed a Petition for Writ of Certiorari and Mr. Rochkind filed a Cross-Petition. We granted both petitions to answer the following questions:
- Should the Court adopt the standard for admitting expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)?
- Was [Ms. Stevenson‘s] medical causation expert‘s specific causation opinion admissible in this case under
Rule 5-702 , applying the standard set forth in Daubert? Was it error for the trial court to allow [Ms. Stevenson‘s] medical causation expert to testify that [Ms. Stevenson] has attentional and behavioral injuries without providing a reliable method for attributing those injuries to lead exposure when [Ms. Stevenson] had already been diagnosed with ADHD? - Was it error for the trial court to allow [Ms. Stevenson‘s] medical expert to render specific causation opinions based on general epidemiological studies?
STANDARD OF REVIEW
“[T]he admissibility of expert testimony is a matter largely within the discretion of the trial court, and its action in admitting or excluding such testimony will seldom constitute ground for reversal.” Roy v. Dackman, 445 Md. 23, 38–39 (2015). When the basis of an expert‘s opinion is challenged pursuant to
DISCUSSION
A. Parties’ Contentions.
In Stevenson I, we held that it was error to allow Dr. Hall-Carrington to testify that lead exposure generally causes ADHD and therefore error to testify that lead exposure specifically caused Ms. Stevenson‘s ADHD. 454 Md. at 293–96. On remand, the circuit
As Appellant/Cross-Petitioner, Mr. Rochkind initially argues that the Court should adopt the Daubert standard, apply it to this case, and find that Dr. Hall-Carrington‘s specific causation opinion is inadmissible under
As Appellee/Petitioner, Ms. Stevenson argues that under current expert admissibility jurisprudence, it was not error for the circuit court to allow Dr. Hall-Carrington to testify that Ms. Stevenson has a physical brain injury attributable to lead exposure that manifested in symptoms of attentional deficits, hyperactivity and impulsivity. To support this position, Ms. Stevenson maintains that Dr. Hall-Carrington provided a reliable methodology consistent with Maryland tort law‘s “substantial factor” causation standard. Ms. Stevenson lastly argues that the circuit court did not err in allowing specific causation opinions based on general epidemiological studies.
Mr. Rochkind responds that even under Frye-Reed, it was error for the circuit court to allow Dr. Hall-Carrington to testify that Ms. Stevenson‘s attentional and behavioral
In the lead up to the Daubert debate, we begin with the legal background.
B. Legal Background: Frye-Reed and Maryland Rule 5-702.
Maryland courts admit expert testimony through two channels—the Frye-Reed standard and
Despite decades of jurisprudence on the topic, the Frye-Reed standard—and its relationship to
1. From Frye to Daubert.
In Reed v. State, 283 Md. 374 (1978), this Court, like most state appellate courts to consider the issue,4 adopted the “general acceptance” test first espoused in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923): for expert testimony predicated on a novel scientific principle or discovery to be admissible, the scientific principles or discoveries must be generally accepted in the relevant scientific community. For decades thereafter, Maryland appellate courts applied Frye-Reed only in novel scientific evidence cases. See, e.g., Kelley v. State, 288 Md. 298, 302 (1980) (polygraph); State v. Collins, 296 Md. 670, 678–79 (1983) (hypnosis); U.S. Gypsum Co. v. Mayor & City Council of Balt., 336 Md. 145, 182–83 (1994) (surface dust sampling in asbestos cases); Schultz v. State, 106 Md. App. 145, 150–57 (1995) (horizontal gaze nystagmus field sobriety tests); Keene Corp., Inc. v. Hall, 96 Md. App. 644, 652–60 (1993) (polarized light microscopy in asbestos cases).
Meanwhile, seventy years after Frye, the Supreme Court of the United States adopted a new standard for admissibility of expert testimony in federal courts. In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court held that
Four years later, in General Electric Co. v. Joiner, the Supreme Court scrutinized epidemiological studies regarding a cause of lung cancer. 522 U.S. 136, 145–46 (1997). The Joiner Court held that because none of the studies provided a causal link between the chlorine compound and lung cancer, “there is simply too great an analytical gap between the data and the opinion proffered.” Id. at 146. The studies therefore did not support the expert testimony in that case. Joiner and the “analytical gap” analysis, as discussed below, is now a critical piece of Maryland‘s Frye-Reed analysis. To complete the ”Daubert
A supermajority of jurisdictions have departed from Frye in favor of the flexible Daubert approach.7 Maryland stands strong amongst the minority jurisdictions that adhere to Frye or a modified Frye test.8 Maryland‘s Frye-Reed standard, as it currently stands, is
2. The First “Drift“: Scientific Conclusions.
This Court has modified the reach of Frye-Reed to include not only scientific methods, but also scientific conclusions. First indicated in Wilson v. State, 370 Md. 191 (2002) (holding that an expert‘s conclusion that SIDS deaths in a single family are genetically related was inadmissible even when based on a reliable statistical method—the “product rule“—because there was not general agreement in the medical community for such a conclusion), the Court expanded Frye-Reed in a trio of cases. Montgomery Mut. Ins. Co. v. Chesson, 399 Md. 314 (2007) (”Chesson I“); Blackwell, 408 Md. at 575; Chesson v. Montgomery Mut. Ins. Co., 434 Md. 346 (2013) (”Chesson II“).
In Chesson I, the Court analyzed the admissibility of an expert medical opinion that exposure to mold causes “sick building syndrome.” 399 Md. at 317. Petitioners argued that the circuit court erred when it refused to hold a Frye-Reed hearing on the admissibility of the expert testimony. Respondents countered that expert opinions concerning the cause or origin of a person‘s condition are not subject to Frye-Reed. In essence, because the
that in cases in which the proper choice of [scientific] techniques was dependent on an underlying scientific phenomenon or principle, a court must engage in Frye-Reed analysis to determine whether that phenomenon or principle is generally accepted in the scientific community and whether the proper scientific tests were used to reach the expert‘s conclusions.
Id. at 329–30 (citing Wilson, 370 Md. at 203). We held that the expert, offering a novel medical conclusion based on underlying generally accepted medical principles, was therefore subject to a Frye-Reed hearing.
To reach that conclusion, we distinguished CSX Transportation, Inc. v. Miller, 159 Md. App. 123 (2004) and Myers v. Celotex Corp., 88 Md. App. 442 (1991). In those cases, the Court of Special Appeals held that a Frye-Reed hearing was unnecessary to admit a medical expert opinion regarding the origin of a patient‘s illness. See CSX, 159 Md. App. at 187 (etiology of arthritis); Myers, 88 Md. App. at 458–59 (asbestos causing cancer). The difference between those cases and Chesson I, we noted, was that CSX and Myers involved generally accepted medical conclusions based on generally accepted medical principles. Chesson I, 399 Md. at 331–32.
The “drift” continued in Blackwell, 408 Md. at 575, when we adopted the “analytical gap” concept discussed by the Supreme Court in Joiner, 522 U.S. at 146. There, we conducted a Frye-Reed analysis of the supposed causal relationship between childhood vaccines and autism. The “essence” of the issue before us was whether the Frye-Reed test applied “to the analysis undertaken by an expert where the underlying data and methods for gathering this data are generally accepted in the scientific community but applied to
We reaffirmed the “analytical gap” concept in Chesson II, noting that although “[g]eneral acceptance does not equate to unanimity of opinion within a scientific community . . . [a] trial judge [] cannot admit expert testimony based on scientific methodology without consideration of whether the analysis itself is flawed and posits an ‘analytical gap.‘” 434 Md. at 356–57 (quoting Blackwell, 408 Md. at 608). On appeal from the remand in Chesson I, we held that the “differential diagnosis”9 process—a
The “analytical gap” concept was on display recently in Savage, 455 Md. at 138. In that murder case, the defendant sought to bolster his theory of self-defense by expert testimony. The expert would have testified that prior traumatic brain injuries could have caused the defendant to perceive non-threatening actions as threatening. After a Frye-Reed hearing, the circuit court excluded the testimony. On appeal, we affirmed, holding that the expert‘s “analysis did not bridge the ‘analytical gap’ between the data available to him and his ultimate conclusions.” Id. at 158.
We concluded that the expert‘s
ultimate opinions, that “under such conditions of chaos and stress” [the defendant] “would be more likely to perceive himself to be facing an imminent threat and have greater difficulty controlling his reactions[,]” and that “[defendant] views the world through an untrusting and suspicious perspective, and often is hyper-vigilant to possible threats[,]” are conclusory.
* * *
[W]e are unable to conclude that [the expert] adequately “connected the dots” between the empirical foundation from his study of [defendant] and the [expert‘s] ultimate opinions. We emphasize that, in passing on whether there exists an “analytical gap” between the data and the expert‘s conclusions, we may take as given the general acceptance of the expert‘s methods.
Judge Sally D. Adkins, concurring in Savage, argued that the Court should adopt the Daubert standard because the “check for an ‘analytical gap’ has muddied our approach to expert testimony.” Id. at 186 (Adkins, J., concurring). In her view,
3. The Second “Drift“: New and Old Methods.
In Reed, we adopted the Frye standard, stating that “if a new scientific technique‘s validity is in controversy in the relevant scientific community, or if it is generally regarded as an experimental technique, then expert testimony based upon its validity cannot be admitted into evidence.” 283 Md. at 381 (emphasis added). In practice, however, Maryland courts have liberalized the standard, applying Frye-Reed “to testimony based on any scientific principle—new or old.” Savage, 455 Md. at 180 (Adkins, J., concurring).
For example, in Clemons v. State, we defined a Frye-Reed standard that “makes evidence emanating from a novel scientific process inadmissible absent a finding that the process is generally accepted by the relevant scientific community.” 392 Md. 339, 344, 365 (2006) (emphasis added). Despite purportedly limiting the standard to “novel scientific process[es],” we applied Frye-Reed to comparative bullet lead analysis10—a forty-year-old and widely used scientific process. We concluded that the timeworn process did not satisfy Frye-Reed “because several fundamental assumptions underlying the process are not generally accepted by the scientific community.” Id. at 372. Similarly, in State v. Baby, we held that expert testimony regarding rape trauma syndrome was subject to Frye-Reed despite acknowledging that the syndrome was first recognized in 1974. 404
Still, “[d]espite our repeated assertions that Frye-Reed applies only to new scientific methods, we have never defined what constitutes a new or novel scientific method. We have never held that a scientific method is not subject to Frye-Reed because it is not new.” Id. at 181 n.5 (citations omitted) (citing Chesson I, 399 Md. at 327 (explaining that Frye-Reed requires a party to “establish first that any novel scientific method is reliable and accepted generally in the scientific community before the court will admit expert testimony based upon [it]” (citation omitted)); Clemons, 392 Md. at 363 (explaining that Reed adopted a standard for the admission of “novel scientific techniques“); Wilson, 370 Md. at 201 (“[P]rior to the admission of expert testimony based on the application of new scientific techniques, it must be first established that the particular scientific method is itself reliable.” (citation omitted))).
It is also well established that trial courts may take judicial notice when a scientific method is broadly and generally accepted. Chesson I, 399 Md. at 327; Wilson, 370 Md. at 201 (“Where the validity and reliability of a scientific technique is so broadly and generally accepted within the scientific community, as is the case of ballistic tests, blood tests, and the like, a trial court may take judicial notice of its reliability.” (citation omitted)). Given that “general acceptance” is the hallmark of Frye-Reed, our suggestion that trial courts take judicial notice of generally accepted methods implies that all scientific testimony is, in
We may take judicial notice from our own decisions that the scientific community accepts the proposition that exposure to asbestos may cause mesothelioma. That is not a novel scientific principle. More than 20 years ago . . . we flatly rejected the assertion that mesothelioma cannot be caused by exposure to chrysotile asbestos. Thus, [the expert‘s] opinion that exposure to chrysotile asbestos in Ford brakes may cause mesothelioma also is not a novel scientific principle.
433 Md. 137, 149–50 (2013) (footnote omitted).
We acknowledge, as we have done on several occasions, that the modern Frye-Reed standard is not what it was when we adopted the test in 1978.
4. Maryland Rule 5-702.
Upon recommendation of the Rules Committee, this Court adopted Rule 5-702 in 1994, a year after the Supreme Court issued the opinion in Daubert:
Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.
In adopting our counterpart to FRE 702, we blessed a Committee Note that stated that Rule 5-702 was not intended to overrule Reed or other cases adopting the Frye standard, and that “[t]he required scientific foundation for the admission of novel scientific techniques
In Stevenson I, we closely examined the third prong of Rule 5-70211—sufficient factual basis. 454 Md. at 286. Judge Adkins, writing for the Court, noted that “sufficient factual basis” includes two sub-elements: (1) an adequate supply of data; and (2) a reliable methodology. Id. (citing Roy v. Dackman, 445 Md. 23, 42–43 (2015); Exxon Mobil Corp. v. Ford, 433 Md. 426, 478 (2013)). Absent either element, the opinion is “mere speculation or conjecture.” Id. (quoting Exxon, 433 Md. at 478). Because we held that Dr. Hall-Carrington‘s causation opinion lacked an adequate supply of data, we did not reach the reliable methodology element. We also declined to address the second question on certiorari—whether the circuit court should have held a Frye-Reed hearing—because our Rule 5-702 conclusion was dispositive. See Sissoko, 236 Md. App. at 713 (discussing Stevenson I and noting that “expert opinion testimony that does not satisfy the criteria for admissibility under Rule 5-702 is not admissible even if it satisfies the Frye-Reed general acceptance test“).
One month later, Judge Adkins issued her concurrence in Savage. On Rule 5-702, Judge Adkins pointed to Blackwell to describe the duplicity of applying Frye-Reed to Rule 5-702:
In Blackwell‘s Frye-Reed discussion, we acknowledged that “reliability . . . affect[s] whether a scientific theory is accepted in the field in which it is offered.” 408 Md. at 584, 971 A.2d 235. We turned to federal
case law to define the contours of this term because of Daubert‘s emphasis on reliable expert testimony. Id. at 604–07, 971 A.2d 235, 260. We concluded that the expert‘s testimony was inadmissible under Frye-Reed, in part, because his research was not “based upon sound methodology.” Id. at 609, 971 A.2d 235, 260. Thus, our evaluation of whether a conclusion was generally accepted included inquiry as to whether the methodology used was reliable—one of the 5-702(3) subfactors. See Roy, 445 Md. at 42–43, 124 A.3d 169. Accordingly, to determine the admissibility of expert testimony under our direction in Blackwell, a trial court may have to analyze the reliability of an expert‘s methodology twice—once under Frye-Reed and again under Rule 5-702(3). Adopting the Daubert approach and confining our evaluation of scientific expert testimony to the requirements of Rule 5-702 would eliminate this repetition.
Savage, 455 Md. at 184 (Adkins, J., concurring) (omissions and alterations in original). Thus, according to the concurrence, “[t]he evolution of our Frye-Reed doctrine to both maintain the general acceptance test and include a check for an “analytical gap” has muddied our approach to expert testimony.” Id. at 186. Judge Adkins suggested that the Court use its discretion under Rule 8-131(a)12 to adopt Daubert. In doing so, she distinguished Savage from the majority opinion in Stevenson I:
Acknowledging our implicit adoption of Daubert would not only be “desirable to guide the trial court” in this case but would also provide clarity to Maryland courts. See
Md. Rule 8-131(a) . Furthermore, unlike [Stevenson I], our most recent case addressing the admissibility of scientific expert testimony, we can only dispose of the case at hand by applying Frye-Reed. In [Stevenson I], we declined to address the parties’ arguments regarding Frye-Reed and instead held that the expert testimony was inadmissible under Rule 5-702 because the petitioner had appealed the trial court‘s determination as to both standards. Here, Savage only challenges the exclusion of [the expert‘s] testimony under Frye-Reed.
Most recently, in Sugarman v. Liles, another opinion authored by Judge Adkins, we revisited the same EPA-ISA papers at issue in Stevenson I and the present case. 460 Md. 396 (2018). Unlike Stevenson I, we held that the EPA-ISA supplied a sufficient factual basis under Rule 5-702(3) for a pediatrician‘s general causation opinion that elevated blood lead levels can cause deficits in auditory encoding and processing speed. In so holding, we discussed extrajurisdictional cases that address the “analytical gap” concept, including King v. Burlington Northern Santa Fe Railroad Co., 762 N.W.2d 24 (Neb. 2009). In that case, the Supreme Court of Nebraska reversed a trial court order excluding an expert‘s opinion that exposure to diesel exhaust fumes had caused the plaintiff‘s late husband to develop a blood cancer, because the expert relied upon epidemiological studies that did not “draw definitive conclusions on causation.” King, 762 N.W.2d at 48.
In Sugarman, we cited King with approval, explaining that an expert may rely on scientific studies that do not make “definite conclusions of a causal relationship,” so long as they are “qualified to interpret and extrapolate from the relevant studies.” Sugarman, 460 Md. at 427. Thus, the pediatrician expert witness was permitted to extrapolate from the EPA-ISA that exposure to lead can cause attention decrements to opine that it also could cause slower processing speed and auditory encoding deficits, which were “factors of attention.” Id. at 428.
Once again, we distinguished that case from Stevenson I:
There, the expert lacked “epidemiological studies—or other reliable evidence—demonstrating a causal link between lead exposure and ADHD” but nonetheless offered a causation opinion. A causal relationship between
lead exposure and some symptoms of ADHD did not warrant testimony linking the two. The symptoms, we observed, were present in a “variety of other disorders and learning disabilities.” ADHD, however, has precise diagnostic criteria and requires ruling out other behavioral disorders. Further, the EPA-ISA emphasized other potential confounding factors that undermined Dr. Hall-Carrington‘s opinion. The EPA-ISA could not support her opinion because the studies discussed therein “only reveal an association between lead exposure and ADHD.” Her opinion lacked an adequate factual basis because the source did not logically support her conclusion. Here, by contrast, the EPA-ISA identified a causal relationship between attention decrements and exposure to lead. Unlike in [Stevenson I], none of the experts opined that Liles has a diagnosable learning disability or behavioral disorder. [The pediatrician] explained lead‘s impact on a developing brain, including the way it affects attention. She offered the opinion that Liles suffered from the kind of generalized attention deficits the EPA-ISA identified as being caused by lead exposure. Because [the pediatrician‘s] opinion testimony does not suffer the same defects as were present in [Stevenson I], we hold that she had a sufficient factual basis to offer an opinion regarding general causation.
Id. at 428–29 (emphasis and citations omitted). The dissent in Sugarman disagreed, instead suggesting that “this case suffers a somewhat distinct, but nonetheless significant, analytical gap as was present in” Stevenson I. Id. at 450 (Getty, J., concurring in part and dissenting in part).
We have therefore held, under our Frye-Reed jurisprudence, that the EPA-ISA epidemiological studies can provide a sufficient factual basis to offer an expert opinion as to general causation of attention decrements. Regardless of whether we apply Daubert or the modern Frye-Reed standard, the question then becomes: is this specific causation case a Stevenson I case, where the analytical gap was too vast, or a Sugarman case where the analytical gap was sufficiently bridged? We do not answer that question, but remand the case for a hearing on the subject applying the Daubert standard we adopt today.
Maryland‘s “jurisprudential drift” has led to a duplicative analytical process and “muddied” the waters of our approach to expert testimony. Savage, 455 Md. at 186, 187 (Adkins, J., concurring). Instead of perpetuating a process wherein expert testimony must pass through Frye-Reed and Rule 5-702, we implement a single standard by which courts evaluate all expert testimony: Daubert. Courts, practitioners, and scholars alike have grappled with the advantages and disadvantages of the Daubert standard over the decades since the Supreme Court first articulated the factored test. Because our decision today is a substantial departure from our Frye-Reed jurisprudence, we explain the reasons that guide us.
1. The Circuit Court Abused Its Discretion.
The circuit court did not contemplate any of the above legal considerations. Instead, the court relied solely on the opinion in Stevenson I. The determination in Stevenson I that Dr. Hall-Carrington could not testify that lead generally or specifically caused ADHD—and the analysis thereto—led the circuit court to properly conclude that Dr. Hall-Carrington could testify that lead can cause attention decrements, hyperactivity, and impulsivity in the general population. But it does not follow, merely based on the Stevenson I opinion, that the EPA-ISA supports a finding that lead specifically caused Ms. Stevenson‘s attention decrements, hyperactivity, and impulsivity.
As a practical matter, the circuit court erred by refusing to hold a Rule 5-702 hearing at which Dr. Hall-Carrington could explain, and Mr. Rochkind could cross-examine, the specific causation methodology that is the subject of this appeal. Rather than conduct an
The circuit court abused its discretion by not holding a Rule 5-702 hearing. Given that we are remanding the case so that the circuit court can conduct a hearing pursuant to Maryland Rule 5-702, as part of the remand, the circuit court should consider the Daubert standard adopted herein.
Ms. Stevenson maintains that the instant case is not the “appropriate catalyst” for this Court to abandon the Frye-Reed standard in favor of the Daubert standard. We disagree.13
The standard by which expert testimony is evaluated is judicially determined by this Court. Within our purview, as charged by the Maryland Constitution, is our duty to “adopt rules and regulations concerning the practice and procedure” in Maryland courts.14 With this duty, we have adopted Maryland Rule 5-702. When this Court effects a change to the common law, as it does today, the Maryland Rules undergo revision to reflect such change. We are not bound to the Rules when the need to alter common law arises. Indeed, the 1994
Surely, our decision today implicates the doctrine of stare decisis. “Latin for ‘to stand by things [that are] decided,‘” stare decisis ordinarily requires that a court “follow earlier judicial decisions when the same points arise again in litigation.” Kazadi v. State, 467 Md. 1, 27 (2020) (quoting Black‘s Law Dictionary (11th ed. 2019)). However, the doctrine “is not an inexorable command.” Savage, 455 Md. at 186 (Adkins, J., concurring) (quoting Conover v. Conover, 450 Md. 51, 65 (2016)). This Court has articulated two circumstances where a departure from the doctrine of stare decisis is permissible: “(1) when the prior decision is clearly wrong and contrary to established principles[;] or (2) when the precedent has been superseded by significant changes in the law or facts.” Id. (internal quotation marks omitted) (quoting Conover, 450 Md. at 65). Over the last forty years, Maryland‘s appellate courts have considerably modified the Frye-Reed standard. The Frye-Reed of 1978 is markedly different than the ”Frye-Reed Plus” of 2020. With Daubert, and eventually Joiner and Kumho Tire, the Supreme Court disavowed the Frye standard for the more flexible Daubert approach. A supermajority of our sister
Judge Adkins’ concurring opinion in Savage blazed the trail for this Court‘s adoption of the Daubert standard. Considering the breadth of scholarly arguments supporting and discounting the Daubert standard, and Maryland‘s prolonged—albeit nominal at times—adherence to the Frye-Reed standard, we now explain our decision to join the supermajority of sister states and the federal courts on this issue.
We recognize that this Court‘s jurisprudence has implicitly embraced portions of the Daubert standard in the Frye-Reed analysis without expressly stating that fact. See supra at 14–20. Recognizing our “drift,” we agree with Mr. Rochkind that retaining a Frye-Reed standard, yet encouraging trial courts to seek guidance from federal cases applying the Daubert standard, may generate some confusion.
The impetus behind our decision to adopt Daubert is our desire to refine the analytical focus when a court is faced with admitting or excluding expert testimony. This becomes especially important in modern society, which routinely confronts emerging technologies that challenge the efficacy of Frye. Frye centered on whether scientific principles or discoveries were generally accepted in a relevant scientific community. Yet, using acceptance as the only measure of reliability presents a conundrum: a generally accepted methodology may produce “bad science” and be admitted, while a methodology not yet accepted may be excluded, even if it produces “good science.” See Motorola Inc. v. Murray, 147 A.3d 751, 756 (D.C. 2016). General acceptance remains an important consideration in the reliability analysis, but it cannot remain the sole consideration. See Libas, Ltd. v. United States, 193 F.3d 1361, 1368 (Fed. Cir. 1999) (“While ‘[w]idespread
Daubert, by contrast, refocuses the attention away from acceptance of a given methodology—although that is not totally removed from the calculus—and centers on the reliability of the methodology used to reach a particular result. “The ability to focus on the reliability of principles and methods, and their application, is a decided advantage that will lead to better decision-making by juries and trial judges alike.” Motorola, 147 A.3d at 757.
In this regard, the analysis by the Honorable Paul W. Grimm in United States v. Horn is enlightening. There, Judge Grimm explained:
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. But, if undertaken as intended, it does expose evidentiary weaknesses that otherwise would be overlooked if, following the dictates of Frye, all that is needed to admit the evidence is the testimony of one or more experts in the field that the evidence at issue derives from methods or procedures that have become generally accepted.
185 F. Supp. 2d 530, 553 (D. Md. 2002) (emphasis added). “The principle shortcoming of Frye,” Judge Grimm continued, “was that it excused the court from even having to try to understand the evidence at issue.” Id. (citation omitted). Instead, a Frye court “only had to assure itself that among the people involved in the field, the technique was acceptable
given the impact of the stare decisis doctrine, once a court, relying on Frye, had ruled that a doctrine or principle had attained general acceptance, it was all to[o] easy for subsequent courts simply to follow suit. Before long, a body of case law could develop stating that a methodology had achieved general acceptance without there ever having been a contested, detailed examination of the underpinnings of that methodology.
Id.; see supra at 19 (discussing this phenomenon in Maryland).
Other courts applying a variant of Frye have observed different flaws. The D.C. Court of Appeals noted that Frye “is not a good gatekeeper for inductive sciences such as epidemiology or psychology.” Motorola, 147 A.3d at 756. The Supreme Court of Alaska, in adopting the Daubert standard, concluded that the Frye standard “is both unduly restrictive and unduly permissive.” State v. Coon, 974 P.2d 386, 394 (Alaska 1999). The Frye standard “excludes scientifically reliable evidence which is not yet generally accepted, and admits scientifically unreliable evidence which although generally accepted, cannot meet rigorous scientific scrutiny.” Id. at 393–94. For this reason, we tend to agree with the Supreme Court of Connecticut: “an admissibility test for scientific evidence premised solely on its ‘general acceptance’ is conceptually flawed and therefore must be rejected.” State v. Porter, 698 A.2d 739, 750 (Conn. 1997) (emphasis in original).
Our Frye-Reed jurisprudence gave trial courts a stated “end“—reliable methodology—without providing the “means” to achieve it. In Exxon, we observed that “[t]o constitute reliable methodology, ‘an expert opinion must provide a sound reasoning process for inducing its conclusion from the factual data’ and must have ‘an adequate
Daubert is not beyond reproach. Ms. Stevenson levels several criticisms against Daubert, none of which we find sufficiently persuasive to perpetuate our Frye-Reed jurisprudence. Still, we address Ms. Stevenson‘s arguments against adopting Daubert and use the opportunity to provide Maryland trial courts with additional guidance on how to implement this new-to-Maryland standard.
Ms. Stevenson contends that the Daubert standard enables judges to become “arbiters of scientific knowledge” and “usurp[] the role of juries.” She argues that the standard “sanction[s] judges to exclude from consideration opposing, yet legitimate opinions of experts, that . . . are for a jury to weigh credibility.” We do not foresee the same gloomy outlook. Under Daubert, judges are charged with gauging only the threshold reliability—not the ultimate validity—of a particular methodology or theory. Ms. Stevenson appears to believe that the inclusion of expert‘s testimony will lead to the exclusion of another; however, this simply is not true. As we shall demonstrate, it is often helpful to turn to FRE 702 and the associated Advisory Committee Note to understand Daubert‘s application. “When a trial court, applying [FRE 702], rules that an expert‘s testimony is reliable, this does not necessarily mean that contradictory expert testimony is unreliable. [FRE 702] is broad enough to permit testimony that is the product of competing principles or methods in the same field of expertise.” Fed. R. Evid. 702 Advisory
Ms. Stevenson relies in part on Chief Justice Rehnquist‘s concurring and dissenting opinion in Daubert to argue that adopting this standard requires judges to take on the role of amateur scientists. Like other courts that have considered this argument, however, we reject it in kind. “Under 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 a fact finder at trial.” Porter, 698 A.2d at 757; see also E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995) (emphasis added) (“[A] judge does not have to be trained in science to evaluate the reliability of a theory or technique.“). We are confident that trial judges are duly capable of undertaking the reliability analysis absent scientific training.
Ms. Stevenson further argues that Daubert‘s abuse of discretion standard and inherent flexibility of the Daubert factors will lead to inconsistent results. We recognize, like the D.C. Court of Appeals, that with Daubert‘s flexibility, “[s]ome inconsistency is inevitable.” Motorola, 147 A.3d at 756. The Supreme Court of Connecticut described ”Daubert‘s indefiniteness not as a flaw, but as a necessity” in concluding that “a test embodying a general, overarching approach to the threshold admissibility of scientific evidence . . . giv[es] trial courts a workable principle to follow.” Porter, 698 A.2d at 751–52. We remain persuaded that a marginal amount of inconsistency is preferable given that
As delayed as Maryland is in joining the supermajority of states and federal courts to adopt the Daubert standard, we do so now with the added benefit of hindsight. As one court remarked, Daubert‘s application in the federal courts did not “work a sea change over federal evidence law.” United States v. 14.38 Acres of Land, More or Less Situated in Leflore Cty., State of Miss., 80 F.3d 1074, 1078 (5th Cir. 1996). Nor are we convinced that adopting this standard in Maryland will upend Maryland evidence law. Instead, Maryland courts will be able to “draw from and contribute to the broad base of case law grappling with scientific testimony.” Savage, 455 Md. at 185 (Adkins, J., concurring). This will give our courts a decided advantage when faced with emerging technologies we cannot yet foresee.
Our adoption of Daubert will streamline the evaluation of scientific expert testimony under Rule 5-702. As Judge Adkins indicated in Savage, our discussion in Blackwell required trial courts “to analyze the reliability of an expert‘s methodology twice—once under Frye-Reed and again under Rule 5-702(3).” Savage, 455 Md. at 184 (Adkins, J., concurring). Adopting Daubert eliminates the duplicative analysis and permits trial courts to evaluate all expert testimony—scientific or otherwise—under Rule 5-702.
4. Applying Daubert.
To complete our “jurisprudential drift“—once and for all—we set forth the Daubert factors we find persuasive in interpreting Rule 5-702. They include, but are not limited to:
(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; and
(5) whether a theory or technique is generally accepted.
Daubert, 509 U.S. at 593–94 (cleaned up); Fed. R. Evid. 702 Advisory Committee Note. In addition to these factors, courts have developed additional factors for determining whether expert testimony is sufficiently reliable. These factors include:
(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.
Fed. R. Evid. 702 Advisory Committee Note (cleaned up).
The Supreme Court‘s guidance in Daubert, Joiner, and Kumho Tire is critical to a trial court‘s reliability analysis. Daubert made abundantly clear that the inquiry is “a flexible one.” Daubert, 509 U.S. at 594. “The focus, of course, must be solely on
Kumho Tire, as noted above, extended Daubert‘s application to all expert testimony. 526 U.S. at 141 (”Daubert‘s general holding . . . applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.“). Kumho Tire also made clear that
a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony‘s reliability. But, as the Court stated in Daubert, the test of reliability is “flexible,” and Daubert‘s list of specific 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.
Id. at 141–42 (emphasis in original). Simply put, 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. Savage, 455 Md. at 184 (Adkins, J., concurring) (“[A] a trial court is not required to consider any or all of the Daubert factors in making its reliability determination.“).
5. Final Thoughts.
In light of our comments on applying Daubert, supra at 33–36, we offer a few thoughts for judges who will shoulder the implementation of this new-to-Maryland evidentiary standard. Much of the discussion above does not upend a trial court‘s gatekeeping function. “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of
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.
* * *
[J]udges, lawyers and expert witnesses will have to learn to be comfortable refocusing their thinking about the building blocks of what truly makes evidence that is beyond the knowledge and experience of lay persons useful to them in resolving disputes. The beneficiaries of this new approach will be the jurors that have to decide increasingly complex cases. Daubert, Kumho Tire, and now Rule 702 have given us our marching orders, and it is up to the participants in the litigation process to get in step.
Horn, 185 F. Supp. 2d at 554–55.
CONCLUSION
In light of the significant changes in the law concerning expert testimony, as established by Daubert and its progeny, we adopt the Daubert standard in Maryland because we find those factors persuasive in interpreting
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED. CASE REMANDED TO THAT COURT FOR PRETRIAL PROCEEDINGS AND A NEW TRIAL CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLEE/PETITIONER.
At the outset, it would be helpful to discuss the different standards pertaining to the admissibility of expert testimony. In general,
Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the
appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.
The third prong—sufficient factual basis—has been interpreted to include two sub-factors: an adequate supply of data and a reliable methodology with which to analyze the data. See Roy v. Dackman, 445 Md. 23, 42-43, 124 A.3d 169, 180 (2015).
In Reed v. State, 283 Md. 374, 391 A.2d 364 (1978), this Court adopted the standard set forth by the United States Court of Appeals for the District of Columbia Circuit in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), setting forth a requirement for the admissibility of expert testimony that is based on a novel scientific method. Under the standard known as the Frye-Reed analysis, a trial court must determine as a threshold matter whether a novel scientific method is generally accepted within the relevant scientific community before testimony based on that method can be admitted. See Reed, 283 Md. at 381, 389, 391 A.2d at 368, 372; see also Dixon v. Ford Motor Co., 433 Md. 137, 149-50, 70 A.3d 328, 335 (2013) (“A Frye/Reed analysis is required, as a prerequisite to the application of
By contrast, federal courts and a number of States utilize the Daubert approach,
The Supreme Court provided “general observations” about how a trial court should assess the validity and reliability of scientific expert testimony, and set forth the following factors: (1) “whether a theory or technique . . . can be (and has been) tested“; (2) “whether the theory or technique has been subjected to peer review and publication“; (3) “the known or potential rate of error, and the existence and maintenance of standards controlling the technique‘s operation“; and (4) “general acceptance.” Id. at 593-94 (cleaned up). As to “general acceptance,” the Supreme Court pointed out that “[a] reliability assessment does
The Supreme Court has since elaborated on the Daubert analysis. In General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997), the Supreme Court rejected the contention that Daubert only permits a trial court to evaluate the methodology of studies and not an expert‘s conclusions. The Supreme Court explained: “Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a [trial] court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” Id. The Supreme Court recognized that a trial court could “conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Id. In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148-49 (1999), the Supreme Court held that the “gatekeeping” standard and “general principles” of Daubert applied to all expert testimony governed by
Over the past several years, there has been discussion in the legal community that Maryland utilizes a standard that is a hybrid of Frye-Reed and Daubert, and speculation
In Rochkind v. Stevenson, 454 Md. 277, 295-96, 164 A.3d 254, 265 (2017) (”Stevenson I“), when this case first came to the Court, we applied the “analytical gap” concept under
A few weeks later, this Court issued its opinion in Savage v. State, 455 Md. 138, 166 A.3d 183 (2017). In Savage, id. at 159, 166 A.3d at 195, we quoted approvingly from Giddens v. State, 148 Md. App. 407, 415-16, 812 A.2d 1075, 1080 (2002), cert. denied, 374 Md. 83, 821 A.2d 370 (2003), in which the Court of Special Appeals explained:
Frye sets forth only a legal standard which governs the trial judge‘s determination of a threshold issue. Testimony based on a technique which is found to have gained “general acceptance in the scientific community” may be admitted into evidence, but only if a trial judge also determines in the exercise of his discretion, as he must in all other instances of expert testimony, that the proposed testimony will be helpful to the jury, that the expert is properly qualified, etc. Obviously, however, if a technique does not meet the Frye standard, a trial judge will have no occasion to reach these further issues.
. . .
It is also well settled, however, that if the relevant scientific community is in general agreement that a properly conducted scientific test will produce an accurate result, the Frye-Reed test does not operate to exclude conflicting expert opinions based upon such a test.
We explained that there was “no reason to depart from this standard in the appropriate case where it applies[,]” and that “[t]he issue is whether the expert bridged the ‘analytical gap’ between accepted science and his [or her] ultimate conclusions in a particular case.” Savage, 455 Md. at 160, 166 A.3d at 195-96.
Judge Adkins identified two ways in which she saw that the Court had adjusted the application of Frye-Reed. First, “we have liberally applied the Frye-Reed analysis to testimony based on any scientific principle—new or old[,]” thereby, “like Daubert, [] implicitly recogniz[ing] that a trial judge‘s gatekeeping function should not be limited to new scientific theories—old ‘junk science’ should be kept out of our courts as well.” Id. at 180, 166 A.3d at 208 (Adkins, J., concurring). According to Judge Adkins, we “suggested that all testimony based on scientific techniques is subject to Frye-Reed by encouraging trial courts to take judicial notice when a scientific method is well-established in the relevant community, rather than skipping Frye-Reed because the method is not novel.” Id. at 180, 166 A.3d at 208 (Adkins, J., concurring) (cleaned up). And, second, in Judge Adkins‘s view, we had “modified the reach of Frye-Reed—inching closer to the federal Daubert standard—by using it not only to evaluate scientific methods, but also to assess scientific conclusions.” Id. at 181, 166 A.3d at 209 (Adkins, J., concurring). Judge Adkins stated that “[t]he federal courts’ adoption of Daubert, coupled with our own
In her concurring opinion, Judge Akins explained that Stevenson I was not the appropriate case in which to address a potential adoption of the Daubert standard. As quoted by the Majority, Judge Adkins stated:
Furthermore, unlike [Stevenson I], our most recent case addressing the admissibility of scientific expert testimony, we can only dispose of the case at hand by applying Frye-Reed. In [Stevenson I], we declined to address the parties’ arguments regarding Frye-Reed and instead held that the expert testimony was inadmissible under
Rule 5-702 because the petitioner had appealed the trial court‘s determination as to both standards. Here, Savage only challenges the exclusion of [the expert‘s] testimony under Frye-Reed.
Maj. Slip Op. at 22 (quoting Savage, 455 Md. at 175 n.1, 166 A.3d at 204 n.1 (Adkins, J., concurring)) (alterations in original).
The following year, in Sissoko v. State, 236 Md. App. 676, 707-08, 182 A.3d 874, 892, cert. denied, 460 Md. 1, 188 A.3d 917 (2018), the Court of Special Appeals discussed Judge Adkins‘s concurring opinion, agreeing that Maryland jurisprudence was drifting toward the Daubert standard. The Court of Special Appeals stated that there had been a “drift toward applying Frye-Reed to scientific conclusions, not just techniques[,]” thereby expanding Frye-Reed. Id. at 708, 182 A.3d at 893.
To be sure, the evolution of case law applying and discussing Frye-Reed has led to discussion in the legal community that Maryland is moving away from Frye-Reed and
From my perspective, regardless of whether Maryland jurisprudence on Frye-Reed has evolved over the years, there is no need to pick a side between Frye-Reed and Daubert, and certainly not in this case. Although Rochkind invites the Court to adopt the Daubert standard, I would decline the invitation. This case is the result of several trials in which the circuit court did not conduct either a
Although Rochkind relies on the District of Columbia‘s adoption of Daubert in Motorola Inc. v. Murray, 147 A.3d 751 (D.C. 2016), and Judge Adkins‘s concurring opinion in Savage, 455 Md. 138, 166 A.3d 183, the procedural posture of this case is unlike the posture of both the Motorola and Savage cases, and different even from most cases adopting Daubert. Moreover, this Court was well aware of the District of Columbia‘s
Likewise, unlike this case, in Savage, 455 Md. at 143-50, 166 A.3d at 186-90, the trial court held an extensive pre-trial evidentiary hearing and determined that the Frye-Reed standard had not been met. On review, this Court agreed and expressly concluded that there was no reason to abandon the Frye-Reed standard. In a concurring opinion, however, Judge Adkins wrote that she was “persuaded in part” by the Motorola decision
In contrast to Motorola and Savage, we do not have extensive evidence gathered from a pre-trial Frye-Reed hearing. As we observed in Savage, 455 Md. at 160 n.6, 166 A.3d at 196 n.6, in Stevenson I, 454 Md. 277, 164 A.3d 254, because we determined that the circuit court abused its discretion under
Maryland case law on the admission of expert testimony pertaining to scientific matters is understandably capable of adaptation and, in my view, as we concluded in Savage, 455 Md. at 160, 166 A.3d at 195, just three years ago, there is no need for a change. The only thing that has changed since the Majority‘s holding and Judge Adkins‘s concurrence in Savage is that there has been speculation in the legal community about a potential change from Frye-Reed to Daubert, and four members of the Court are now in
Over the last forty years, Maryland‘s appellate courts have considerably modified the Frye-Reed standard. The Frye-Reed of 1978 is markedly different than the ”Frye-Reed Plus” of 2020. With Daubert, and eventually Joiner and Kumho Tire, the Supreme Court disavowed the Frye standard for the more flexible Daubert approach. A supermajority of our sister jurisdictions followed suit. Clearly, a significant change in the law has occurred, permitting us to depart from stare decisis and adopt the Daubert standard in this instance.
Majority Slip. Op. at 28 (footnote omitted). The Majority does not claim that this Court‘s prior adoption of the Frye-Reed standard was clearly wrong, or allege or even mention any developments subsequent to this Court‘s decisions in Stevenson I and Savage that would
Equally as important, though, as Judge Adkins recognized in Savage, this case is plainly not the case in which to entertain making a change from Frye-Reed to Daubert, as the issue of the admissibility of Dr. Hall-Carrington‘s testimony has consistently been decided under
Put plainly, it is obvious that the issue of the admissibility of Dr. Hall-Carrington‘s testimony, throughout the many trials in this case, has been considered only under
Even if the issue of whether to abandon the Frye-Reed standard and adopt the Daubert standard were squarely before the Court, i.e., the circuit court had made findings under Frye-Reed or one of the parties had argued the issue in the circuit court, from my perspective, adoption of the Daubert standard should not be done without information about the impact that adopting Daubert would have on African American people, people of color, and people of various socioeconomic status in Maryland. In a brief of amicus curiae filed in this case, the Maryland Association for Justice indicates that the Daubert standard has resulted in some plaintiffs not being able to effectively present expert witness testimony. The Maryland Association for Justice points to studies by professors demonstrating that application of the Daubert standard “disproportionately and negatively affects claimants of color.” Andrew W. Jurs and Scott DeVito, A Tale of Two Dauberts: Discriminatory Effects of Scientific Reliability Screening, 79 Ohio St. L.J. 1107, 1144
Wisely, the majority opinion does not “reject the seriousness of th[e] contention” that the “Rules Committee is the more appropriate forum to study the potential impact the Daubert standard” would have in Maryland. Maj. Slip Op. at 28-29 n.15. But, the Majority summarily disposes of the suggestion by alleging that other scholarly research has come to “the opposition conclusion.” See Maj. Slip Op. at 29 n.15. The Majority identifies only one such source, and by its’ own admission, there is disagreement as to the impact of the Daubert standard. Yet, the Majority is willing to implement that standard in our State without study. Unfortunately, rather than refer the matter to the Rules Committee, the Majority states that, “[t]his Court is well suited to weigh the advantages and disadvantages of modifying our approach to any area of the law—as we often do. That this change implicates our interpretation of the Maryland Rules does not necessitate a referral to the Rules Committee.” Maj. Slip Op. at 29 n.15. With this language, the Majority attempts to equate the change from the Frye-Reed standard to the adoption of the Daubert standard in Maryland to a mere interpretation of the Maryland Rules and not the
In contrast, the more recent Andrew W. Jurs & Scott DeVito law review article addresses Daubert‘s disproportionate impact on African American plaintiffs and claimants of color, stating:
We found that when the federal system adopted the stricter standard of Daubert in 1993, there was a disproportionate and negative impact on filings from African-American plaintiffs along with a corresponding rise in filings from white plaintiffs. Yet that is not all we found. In prior work, we found that when a state adopted Daubert after 1993, there was a “return to federal court” effect where filings rebound to pre-1993 patterns. Yet our analysis reveals that after state adoption of Daubert, there is no rebound for African-American plaintiffs; instead, the filing rates for black plaintiffs remain depressed.
Our research shows that, in response to Daubert, black plaintiffs were less likely to file in federal court, and once they were pushed out of the civil justice system, they remained out. In essence, the Daubert admissibility standard impacts filings exactly like a method of tort reform, but only for claimants of color.
Andrew W. Jurs & Scott DeVito, A Tale of Two Dauberts: Discriminatory Effects of Scientific Reliability Screening, 79 Ohio St. L.J. 1107, 1109-10 (2018) (footnotes omitted).
Another law review article indicates that Daubert and its progeny may have “significant gender, race, and class implications,” stating:
[T]rial judges have used [Daubert and its progeny], despite Daubert‘s announced intention to liberalize decisions on admitting scientific expert causation testimony, to erect conservative, and in some instances, virtually insurmountable barriers to plaintiffs’ ability to prove causation. These barriers stem from substantive legal decisions about causation law, rather than from scientific principles or case by case assessments of proffered testimony. Finally, the article analyzes some of the societal implications of these legal developments, including differential impact on social groups whose health problems have tended to be ignored or underexplored by the scientific research community[.]
* * *
There are also likely to be subtle, but significant gender, race, and class implications of the heightened requirements for proof of causation. Certain social groups have traditionally drawn greater research interest and research dollars. For example, medical problems of middle-aged white men have received a disproportionate amount of research attention, while the problems of women, the poor, and members of minority racial and ethnic groups have received less attention. Political groups or other organizations can also stimulate research attention to potential health problems--for example, the unions have played an important role in pushing for research into asbestos and other occupational exposures; veterans groups have continued to demand better Agent Orange and Gulf War Syndrome research. Until the relatively recent attention devoted by civil rights groups to toxic exposure issues in poor minority communities, and the activism of women‘s groups around breast cancer research or [diethylstilbestrol] research, the advocacy groups that prodded regulatory agencies or the research community were more likely to represent largely male constituencies, such as industrial workers. For these reasons, the products, exposures, and diseases for which there is likely to be well-developed epidemiologic research will not be gender, race, or class-neutral. The societal groups most likely to be under-studied by the research community are often going to be the same groups whose health concerns have received less initial scrutiny from product or drug manufacturers. If the epidemiologic community has not produced enough research into some types of the exposures and risk factors facing women, minorities, and the poor, then these groups will be inherently disadvantaged when they try to use the tort system to redress their health problems and to stimulate more serious manufacturer and researcher attention to their concerns. The long-standing inequities of medical research can lead to differential race, gender, and class-based access to the tort system.
Lucinda M. Finley, Guarding the Gate to the Courthouse: How Trial Judges Are Using Their Evidentiary Screening Role to Remake Tort Causation Rules, 49 DePaul L. Rev. 335, 337-38, 373-74 (1999) (footnotes omitted).
Several sources state that Daubert has the effect of lowering costs for defendants and raising costs for plaintiffs. See Sandra F. Gavin, Managerial Justice in A Post-Daubert World: A Reliability Paradigm, 234 F.R.D. 196, 212 (2006) (“Th[e] shift to the pretrial arena significantly raises the costs and risks for plaintiffs while diminishing the costs and risks for defendants particularly when Daubert and summary judgment intersect.“); Richard A. Nagareda, 1938 All over Again? Pretrial As Trial in Complex Litigation, 60 DePaul L. Rev. 647, 669 (2011) (“The further nuance imparted by Daubert and its progeny is to reduce the cost to the defendant of deploying the summary judgment motion. Under
To be sure, the Committee note to
The circumstance that there may have been a drift from Frye-Reed to Daubert and that portions of the Daubert analysis may be already be in place in Maryland case law does not negate the need for a study of the impact of Daubert on litigants. It should not be said that because this Court may have already modified the Frye-Reed standard, we should not investigate any burden that the Daubert standard may impose on Maryland‘s citizenry. The Court should want to ensure that equal access to the court system is provided to all and that case law is developed in a manner that is consistent with equal access. Information on the impact of the Daubert standard is information that the courts, the Bar, and the legal profession in general should be made aware of before this Court determines whether to take the action of adopting the Daubert standard for use in our State.
Lastly, in this case, I would hold that the circuit court did not abuse its discretion in admitting Dr. Hall-Carrington‘s testimony under
In the context of
Rule 5-702 , we have previously stated that, the admissibility of expert testimony is within the sound discretion of the trial judge and will not be disturbed on appeal unless clearly erroneous. Put another way, it is well settled that the trial court‘s determination regarding the qualification of experts may be reversed if it is founded on an error of law or some serious mistake, or if the trial court clearly abused its discretion and will seldom constitute a ground for reversal.
(Cleaned up).
Utilizing the principles expressed above, I would conclude that the circuit court did not abuse its discretion under
The circuit court was correct. There was a sufficient factual basis to support Dr. Hall-Carrington‘s testimony, as there was an adequate supply of data and she provided a reliable method for attributing Stevenson‘s injuries to lead exposure.5 As to an adequate
Dr. Hall-Carrington testified that she was familiar with and had read the portion related to lead contained in the Environmental Protection Agency‘s 2013 publication, the EPA-ISA, which she described as “a review of all the research from around the world and it‘s a peer reviewed articles, but it‘s a review of all the research, scientific research that was available at the time. [The EPA] actually go[es] through hundreds of articles in forming [] opinions in this document.” Dr. Hall-Carrington testified that she was also familiar with the underlying studies that the Environmental Protection Agency cited to and
As to reliable methodology, Dr. Hall-Carrington‘s opinions were not conclusory or ipse dixit, “because I said so,” opinions. Dr. Hall-Carrington‘s thorough review of the numerous records related to Stevenson gave her specific and detailed information related to Stevenson‘s medical history, including prior physical examinations and the results of clinical tests. It is not necessary that an expert witness conduct a physical examination of a person before being permitted to render an opinion. See Levitas v. Christian, 454 Md. 233, 241, 253-54, 164 A.3d 228, 233, 240-41 (2017) (In a lead paint case, this Court held that a trial court abused its discretion in excluding a plaintiff‘s expert‘s testimony on the ground that he had not examined the plaintiff, and had instead relied on a report from another doctor who had examined the plaintiff.); Sugarman v. Liles, 460 Md. 396, 403-05, 410, 190 A.3d 344, 348-39, 352 (2018) (In a lead paint case, a pediatrician who was an expert for the plaintiff, as well as a pediatrician who was an expert for the defendant, did not examine the plaintiff, and instead relied on his medical records, the report of another
I disagree with the Majority‘s conclusion that the circuit court abused its discretion
Just as troubling, in reaching a decision that a remand is necessary, the Majority concludes that the circuit court erred in refusing to hold a
THE COURT: I wanted to make sure before I rule. All right. So with that, the [c]ourt did believe that it would be appropriate to either have a full hearing where the Defendants would be able to present the witnesses. The burden would be on the Plaintiff. The Plaintiff would be able to offer Dr. Cecilia Hall-Carrington.
The parties have agreed based on conversations with the [c]ourt that the testimony of Cecilia Hall- Carrington which is before the Court that was in front of [a different circuit court j]udge [] will be similarly presented to this jury.
* * *
Again, so there‘s no objection to not having a hearing where there‘s live testimony because all parties are satisfied that what is before the [c]ourt is what the [c]ourt needs to make a decision under 5-702-3. Correct, Defense?
[ROCHKIND‘S COUNSEL]: Yes, Your Honor, that‘s correct.
THE COURT: And correct, Plaintiff?
[STEVENSON‘S COUNSEL]: Yes, Your Honor.
THE COURT: All right. I will now hear from Plaintiff.
The Majority misunderstands what occurred in the circuit court. The circuit court initially denied Rochkind‘s motion to exclude Dr. Hall-Carrington‘s testimony in its entirety. The circuit court found that, under Stevenson I, Dr. Hall-Carrington could be permitted to testify under certain circumstances. The circuit court stated: “I‘m also clear that that case says that under the right circumstances there can be an opinion based on what has been presented to show that there are certain disorders and certain deficits. And we may get to that at some point.” After this ruling, Rochkind filed a request to brief for a
Yet, after wrongfully concluding that the circuit court abused its discretion, the Majority remands for the circuit court to conduct a hearing pursuant to
For the above reasons, respectfully, I dissent.
Judge Hotten and Judge Greene have authorized me to state that they join in this opinion.
Notes
This is the exchange that occurred between the circuit court and Rochkind‘s counsel:
[CIRCUIT COURT:] So for those reasons, Defense Counsel was seeking a 5-702, I‘m sorry, seeking at this stage a Frye-Reed hearing. And counsel may not want to freely acknowledge it but, candidly speaking, you do -- you‘re going to go with me on this one, that a Frye-Reed hearing is not appropriate under these circumstances. You‘re going to give me that one, aren‘t you?
[ROCHKIND‘S COUNSEL]: I do think that the appropriate forum is a 5-702 hearing.
[CIRCUIT COURT]: See. This is why I like you. Honesty always helps. So again, so the issue for the Appellate Courts were to decide that you‘re not asking for the Frye-Reed because you believe that under these circumstances it‘s a 5-702, correct?
[ROCHKIND‘S COUNSEL]: Correct.
In adopting the Daubert standard, the Majority attempts to rewrite history and minimize the consequence of Rochkind‘s counsel‘s agreement that neither a hearing under Frye-Reed nor
In a desperate attempt to counter a simple fact that is plain from the record, the Majority refuses to recognize that there was an agreement between the parties and the circuit court that no hearing was necessary. The Majority makes the unfortunate and inaccurate allegation that “[a] ’Frye-Reed hearing was not appropriate’ only because the circuit said so[.]” Maj. Slip Op. at 26-27 n.13. The circuit court judge who presided in this case is an experienced trial judge with a sterling reputation. The Majority‘s allegation ignores the record and the circumstance that, after having made the request for one, Rochkind‘s counsel readily agreed not to pursue a Frye-Reed hearing.
Similarly, the Majority‘s suggestion that, because the Court granted certiorari, this case is the appropriate vehicle to announce a change to the Daubert standard is flawed. See Maj. Slip Op. at 26 n.13. The grant of a petition for a writ of certiorari where the petition contains a particular question is not a guarantee that the Court will necessarily address the question, let alone that the Court will answer the question by making a sweeping change in the law. See, e.g., Duffy v. CBS Corp., 458 Md. 206, 217 & n.9, 182 A.3d 166, 172 & n.9 (2018) (This Court stated that because we answered the first of three questions presented in a petition for a writ of certiorari in the affirmative and held that the statute of repose did not apply in that case, we did “not address the remaining questions[,]” including
State v. Weems, 429 Md. 329, 332, 55 A.3d 921, 925 (2012) (This Court granted a petition for a writ of certiorari raising two questions, but did not address the second question because we affirmed the Court of Special Appeals‘s judgment and answered the first question in the negative.); Prof‘l Staff Nurses Ass‘n v. Dimensions Health Corp., 346 Md. 132, 133-34, 138, 141-42, 695 A.2d 158, 158, 160, 162-63 (1997) (This Court granted a petition for a writ of certiorari raising only a single constitutional issue—whether the National Labor Relations Act preempted the Maryland anti-strikebreakers statute—but “conclude[d] that the constitutional issue should not have been reached” and affirmed the Court of Special Appeals‘s judgment on a non-constitutional ground.); see also Stevenson I, 454 Md. at 284-85, 295, 164 A.3d at 258, 265 (This Court granted certiorari on two issues—whether the circuit court erred in admitting Dr. Hall-Carrington‘s generally and specific ADHD causation testimony under
In addition, case law recognizes that the Court may dismiss a petition for a writ of certiorari for being improvidently granted. See, e.g., Sturdivant v. Md. Dep‘t of Health and Mental Hygiene, 436 Md. 584, 589, 84 A.3d 83, 86 (2014) (“On occasion, this Court dismisses a case after briefing and argument on the ground that the petition for writ of certiorari was improvidently granted. In such cases the grant of the petition was a mistake, either because it becomes apparent later that there is truly no issue of public importance in the case or because there is such an issue, but it was not preserved below or the record in the case provides an inadequate basis for rendering useful guidance on that issue.“); see also McFarland v. Baltimore Cmty. Lending, Inc., 467 Md. 428, 429, 225 A.3d 83, 83 (2020) (This Court dismissed a petition for a writ of certiorari as “having been improvidently granted.“). Also,
Indeed, other than the parenthetical, the Majority provides no information about the article or its purpose, specifically, whether its purpose was to study the impact of Daubert on specific groups, or whether the article even mentions Maryland. The Majority does not advise that the article, like other sources, likens Daubert to tort reform, stating:
In federal courts, where the decision is legally binding, Daubert has become a potent weapon of tort reform by causing judges to scrutinize scientific evidence more closely. Tort reform efforts often focus on medical malpractice, products liability, and toxic torts--all cases in which scientific evidence is likely to play a decisive or at least highly influential role. The resulting effects of Daubert have been decidedly pro-defendant. In 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, 472-73 (2005) (footnote omitted). After reaching this conclusion, the article purports to review the impact of Daubert in states by examining developments in specifically identified states that have and have not adopted the Daubert standard; Maryland is not among the states included in the article. Also, the article does not purport to study the effect of the Daubert standard on different communities within those states. As such, although the article purports to evaluate whether “doctrinal standards have any effect on scientific admissibility determinations” and reaches a general conclusion that it “found no evidence that Frye or Daubert makes a difference,” id. at 510-11, in addition to being fifteen years old, the article reaches no conclusions whatsoever about the impact of the Daubert standard not having been adopted in Maryland or any
In the circuit court, Rochkind conceded that the only issue was whether Dr. Hall-Carrington had a sufficient factual basis for her opinions under
In 2000, the FRE were amended (in response to Daubert and its progeny, see Fed. R. Evid. 702 advisory committee‘s note) to include language requiring expert testimony to be based on “sufficient facts or data.” The FRE were restyled in 2011 without substantive changes.
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert‘s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Finally, the Majority states: “Since Daubert is a new interpretation of