There’s No More Frye-ing in Maryland: The Court of Appeals Finally Adopts Daubert

The Maryland Court of Appeals ended its term with a big change in the admissibility of expert testimony. On August 28, in a 4-3 decision, the Court abandoned Maryland’s long-standing Frye-Reed test for evaluating scientific expert testimony and formally adopted the Daubert standard that has long applied in the nation’s federal courts and elsewhere (thirty-nine states and counting). The case is Rochkind v. Stevenson, Court of Appeals, September Term (2019), No. 47.

Frye-Reed traces its origins to 1923, when the United States Court of Appeals for the District of Columbia announced a new test for admissibility of expert testimony based on a novel scientific principle: Does the principle have “general acceptance” in the “particular field in which it belongs”? Frye v. United States, 293 F. 1013 (D.C. Cir.). “General acceptance” became the norm and was adopted by many states, including Maryland in 1978. Reed v. State, 283 Md. 374.

It remained so until 1993, when the United States Supreme Court issued its opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579. There, the Court announced that Federal Rule of Evidence 702, which grounds the expert assessment in considerations of reliability, superseded the general acceptance test and provided a nonexclusive list of factors courts might use to determine the reliability of expert testimony. A “supermajority” of states followed suit, replacing their own Frye precedents with Daubert. But not Maryland. Frye-Reed remained the test, at least in name.

As the Court of Appeals explained, until now, expert testimony in Maryland was to be handled in one of two ways. Testimony involving novel scientific theory was required to meet Frye-Reed’s minimum general acceptance test and the requirements of Maryland Rule 5-702 (the state analog to Federal Rule 702). Expert testimony involving “non-novel scientific evidence” (i.e., testimony based on established or proven principles) was required to meet only the requirements of Rule 5-702. This was, the Court explained, intended to be a “simple” dynamic.

It proved, over time, to be anything but. In part, this can be attributed to what the Court of Appeals characterized as its own “jurisprudential drift” toward Daubert, even as Frye-Reed remained the rule. That drift, the Court explained, took two forms, with the Court using Frye-Reed: (1) not just to evaluate scientific methods, but also to assess the scientific conclusions drawn; and (2) in cases involving not just novel or unique scientific methods, but also established ones.

Cases riding the wave of the first drift (scientific conclusions) held that novel expert conclusions based on generally accepted underlying scientific principles required additional scrutiny in the form of an evidentiary hearing. Generally accepted conclusions based on generally accepted principles, in contrast, were admissible without any such hearing. And generally accepted methods must be paired, cases in the first drift held, with generally accepted analysis. This approach avoids an “analytical gap” between the data studied and the conclusions drawn. Analysis that would not be generally accepted in the relevant scientific community would doom even expert opinion based on generally accepted data and generally accepted methodology.

Cases in the second drift (novel and established methods) “liberalized” Frye-Reed, applying its test to any scientific principle, regardless of its age, and thus implicitly acknowledging (as now-retired Judge Sally D. Adkins stated in an earlier concurrence) that any “junk science,” new or old, should be rejected by Maryland courts. Savage v. State, 455 Md. 138, 180 (2017).

Another complicating factor? The interplay of Rule 5-702 and caselaw. Maryland adopted Rule 5-702 in 1994, the year after Daubert was decided. Its three prongs allow courts to admit expert testimony that will assist the trier of fact when: (1) the expert is qualified; (2) the testimony is “appropriate”; and (3) a “sufficient factual basis” supports it. When it was adopted, the Court of Appeals “blessed” a Committee Note stating that the rule was not intended to overrule Frye-Reed precedents. The admissibility of testimony involving novel principles was “left to development through case law.” So Frye-Reed remained as a second hurdle to admitting expert testimony involving novel scientific theories.

The third prong of Rule 5-702 has been interpreted to include two “sub-elements”: (1) an adequate supply of data; and (2) reliable methodology. Without either, the expert opinion is “mere speculation and conjecture” and must be rejected. But, as Judge Adkins explained in her earlier concurring opinion in Savage, when performed in a case involving novel theory, the Rule 5-702(3) analysis duplicates an assessment caselaw already requires be performed under Frye-Reed, since reliability informs whether a scientific theory is “generally accepted” in a given field. Adopting Daubert, Judge Adkins argued, would avoid this repetition and save trial courts from analyzing the reliability of an expert’s methodology twice, under both Frye-Reed and Rule 5-702(3).

The Court agreed with Judge Adkins—and it acted, finally adopting Daubert twenty-seven years after it was decided. Finding that current jurisprudence has led to a “duplicative analytical process” (requiring expert testimony to pass through two tests: Frye-Reed and Rule 5-702), and “muddied” the waters of admissibility, the Court of Appeals announced that Daubert is now the “single standard” under which Maryland courts will evaluate all expert testimony, novel or not.

Maryland practitioners are sure to have at least one question: Why now? The Court articulated three reasons that made this the case that would make Daubert the law in Maryland.

First, the procedural posture was right. The procedurally complex case from which the appeal ultimately was taken (at this presentation to the Court) arose from the circuit court’s refusal to conduct an evidentiary hearing that would allow the expert in question to explain (and opposing counsel to cross-examine) the specific causation methodology under dispute. The Court found that to be an abuse of discretion. Because the Court was remanding to permit that very hearing to be held, there would be no prejudice to any party by adopting Daubert now. The circuit court will simply consider the Daubert standard when it conducts its evidentiary hearing on remand.

Second, this was “the right case” and the right time. While the Court’s decision, it stated, implicates stare decisis, departure from precedent is permissible when: (1) the prior decision is clearly wrong; or (2) precedent has been superseded by significant changes, whether in law or fact. Here we have the latter. Frye-Reed has evolved since its adoption in Maryland in 1978. The U.S. Supreme Court rejected Frye and its progeny in favor of the more flexible approach that Daubert offers. The vast majority of state courts followed the Supreme Court’s lead. This sea change in the law, the Court of Appeals found, justified departing from stare decisis and adopting Daubert.

In so finding, the Court rejected argument that adopting Daubert is a job for the state Rules Committee, not the Court, explaining that: (1) Committee Notes suggest that the Rules Committee considered Daubert when Rule 5-702 was adopted in 1994, but “left it to [the] Court to change the standard applied to scientific testimony”; (2) adopting Daubert is consistent with the Court’s “longstanding view” that Maryland courts can and should look to federal caselaw when interpreting rules, like Rule 5-702, that were adopted to track language in a corresponding federal rule; and (3) the Court is well suited to weigh the advantages and disadvantages of any shift in the law and the fact that a shift implicates interpretation of a rule does not necessitate referral to the Rules Committee. Put simply, the Committee makes new rules and, as needed, amends existing rules to reflect changes in common law. The Court interprets the rules and makes common law.

Third, adopting Daubert, the Court explained, is the right thing to do. The Court’s motivation, it stated, was its “desire to refine the analytical focus when a court is faced with admitting or excluding expert testimony.” As new technologies emerge (and with ever-increasing frequency), this becomes even more critical. Under Frye, a generally accepted methodology that produces “bad science” might be admitted, while a newly emerging methodology that has not yet gained general acceptance is excluded even if its result is “good science.” The new inquiry into reliability will consider general acceptance, but it should not, the Court stated, end there.

In contrast, Daubert centers the court’s focus not on acceptance within the scientific community, but on “the reliability of the methodology used to reach a particular result.” This, the Court stated, is likely to lead to better decision-making by judges and juries. Here, the Court cited analysis provided by Judge Paul W. Grimm, of the U.S. District Court, in United States v. Horn, 185 F. Supp. 2d 533 (D. Md. 2002). In Horn, Judge Grimm pointed out one of Frye’s biggest shortcomings: Courts, only required to assure themselves that the expert’s technique was acceptable within his field (something that could be obtained from a single other colleague in the area), were “excused … from even having to try to understand the evidence” presented. A troubling result followed: Once a court, applying Frye, ruled that a doctrine or principle had general acceptance, later courts, asserting stare decisis, would simply follow suit. “Before long” there could be a body of case law announcing a methodology’s general acceptance without a single “contested, detailed examination” of its underpinnings having ever been undertaken by any court.

Compare that with the result under Daubert, where (as Judge Grimm explained) the court and parties alike must “reckon with the factors that really do determine whether the evidence is reliable, relevant and ‘fits the case’”: the tests used, their error rates, critical evaluations of that testing, and (then) general acceptance. This, the Court of Appeals explained, was one reason adopting Daubert was the right choice. It cited others, including: (1) the D.C. Court of Appeals’ acknowledgement that Frye had not proven to be a “good gatekeeper for inductive sciences” like epidemiology or psychology; and (2) the Supreme Court of Alaska’s finding that Frye is “both unduly restrictive and unduly permissive,” excluding reliable scientific evidence that has not yet gained general acceptance while admitting unreliable evidence that cannot withstand serious scrutiny but nevertheless has general acceptance—what the Court called Frye’s “conceptual flaw.” There’s at least one more: As the Court explained, while Frye-Reed gave trial courts the end (reliable methodology), it provided no means for achieving it. Daubert’s factors provide the means, giving trial courts guidance for just how to determine if a scientific theory is reliable.

The Court’s adoption of Daubert means that all expert testimony presented to Maryland’s courts, scientific or otherwise, will be evaluated under a single standard: Maryland Rule 5-702. Courts interpreting Rule 5-702 will apply the nonexclusive, flexible factors stated in Daubert and its progeny. The Court of Appeals listed the ten factors it finds most persuasive. They are:

(1) Whether a theory or technique can be or has been tested;

(2) Whether the theory or technique has been subject to peer review or publication;

(3) Whether a scientific technique has an established or potential error rate;

(4) The existence and maintenance of standards and controls;

(5) Whether a theory or technique is generally accepted;

(6) Whether the expert’s testimony grows naturally and directly out of research conducted independent of litigation or if the expert’s opinions have been developed expressly (or exclusively) for purposes of testifying in litigation;

(7) Whether the expert jumps from an accepted premise to an unfounded conclusion (nothing, the Court reiterated, requires a trial court to admit an expert’s ipse dixit and too great an analytical gap between the data and the opinion is often fatal);

(8) Whether the expert adequately accounts for obvious alternative explanations;

(9) Whether the work is as careful as it would be if performed outside litigation; and

(10) Whether the field is known to reach reliable results for the type of opinion given.

The Court acknowledged that, just as applying Daubert to Rule 5-702 (and abandoning Frye-Reed) gives trial courts a “simple, more straightforward” and flexible structure for analyzing expert testimony, it also guides appellate courts reviewing expert testimony. The admission or exclusion of all expert testimony, going forward, is reviewed under an abuse of discretion standard. Because Daubert is a “new interpretation” of Rule 5-702, the Court’s decision, it stated, applies to any case pending on direct appeal where the relevant question (i.e., did the trial court err in admitting or excluding expert testimony under Rule 5-702 or Frye-Reed?) is preserved for review.

The shift to Daubert means, the Court acknowledged, that Maryland lawyers and their experts will have to rethink how they get some types of scientific and technical testimony into evidence. As Judge Grimm commented in Horn, for some time, everything old will be new again for Maryland’s bench and bar. Certain scientific and technical evidentiary issues that were considered long-settled under Frye-Reed will be open for reassessment. Who benefits from this reassessment? For one, the litigants in Maryland courts, whose cases will be heard fairly and resolved based on “good science” and reliable expert methodologies and theories. For another, Maryland jurors, who will be afforded opportunities to weigh legitimate, credible expert opinion, from both sides, that has survived scrutiny and been determined to be reliable and likely to assist them in the task to which they have been assigned. And the bar, who has been provided needed clarification and guidance in an area of the law that remained unduly complicated for too long. The Court of Appeals ended its term with a winner—for the many stakeholders involved.

Jennifer Ann Wright is a Partner in our Maryland office.
Heather L. Williams is a Partner in our Maryland office.