Maryland Adopts Daubert Standard For Expert Testimony: Fallout From Jurisprudential Drift

• Published date: 01 October 2020
• Law Firm: Wilson Elser Moskowitz Edelman & Dicker LLP
• Author: Ms Jodi V. Terranova and Julia Carbonetti

On August 28, 2020, the Court of Appeals of Maryland adopted the Daubertv. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (Daubert) standard for admitting expert testimony. See Stanley Rochkind v. Starlena Stevenson, No. 47, September Term 2019 (Md. Ct. App. August 28, 2020). In the four-three majority opinion written by Judge Joseph M. Getty, the Court of Appeals held that Maryland will now "implement a single standard by which courts evaluate all expert testimony: Daubert."

Maryland previously applied a Frye-Reed standard for admitting expert testimony, which required the expert opinion to be generally accepted as reliable in the scientific community. The court acknowledged that the Frye-Reed standard often was confusing in application, muddied by duplicative analyses under Maryland Rule 5-702, and drifting toward several Daubert factors. In joining the "supermajority" of states adopting Daubert, Maryland courts will now analyze the reliability of the principles and methods of an expert opinion by considering various factors before admitting the expert testimony.

New Standard for Admissible Expert Testimony in Maryland
As a result of this recent decision, Maryland trial courts will apply one standard to the admissibility of all expert testimony.

A court may admit an expert opinion after considering the following five factors. Whether:

• A theory or technique can be and has been tested
• A theory or technique has been subject to peer review and publication
• A particular scientific technique has a known or potential rate of error
• Standards and controls are maintained
• A theory or technique is generally accepted.

The trial court also will have discretion to consider the following five additional factors before admitting the expert opinion. Whether:

• The expert is proposing to testify about matters growing naturally and directly out of research he or she has conducted independent of the litigation, or whether he or she has developed opinions expressly for purposes of testifying
• The expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion
• The expert has adequately accounted for obvious alternative explanations
• The expert is being as careful as he or she would be in his or her regular professional work outside of paid litigation consulting
• 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 of Maryland confirmed that a...