Maryland Joins "Supermajority" of States Adopting Daubert Standard

Twenty-seven years after the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Maryland has joined the ranks of jurisdictions adopting the Daubert standard for admissibility of expert testimony. In a 4-3 decision in Rochkind v Stevenson, 2020 WL 5085877 (Md. August 28, 2020), the Maryland Court of Appeals, calling itself “delayed…in joining the supermajority,”¹ formally completed the state’s “drift toward Daubert.”² “We implement a single standard,” the court announced, “by which courts evaluate all expert testimony: Daubert.”³

The decision addressed the expert testimony of a pediatrician who had attributed the plaintiff’s neuropsychological problems, including ADHD, to lead poisoning in her home as a small child. In almost nine years of litigation against an owner of the home, her case had been tried four times, resulting in three seven-figure verdicts, one mistrial, and two trips to the state’s highest court. In this second visit to the Court of Appeals, the court granted a writ of certiorari to answer, among other questions, whether Maryland should explicitly adopt the Daubert standard.

Revisiting the history of the Frye standard since its adoption in Maryland in Reed v. State, 391 A.2d 364 (Md. 1978),the court recognized that it had extended the Frye “general acceptance” standard in at least two ways: 1) it had applied Frye to established, as well as novel, scientific methods, and 2) it had incorporated the “analytical gap” concept of the Daubert trilogy⁴ into the Frye-Reed analysis. The Frye-Reed test had thus morphed over time into a “Frye-Reed Plus” test.⁵ “We acknowledge, as we have done on several occasions,” the court said, “that the modern Frye-Reed standard is not what it was when we adopted the test in 1978.”⁶ The court concluded that adopting Daubert would more accurately distinguish good from bad science, without “upend[ing] Maryland evidence law.⁷

The majority’s decision evoked an unusually passionate dissent. Three dissenters argued that the court should have declined the invitation to adopt Daubert. The case was not an appropriate vehicle for overturning the Frye standard, they contended; it could be decided based solely on the Frye-Reed test. In their view, the court offered no persuasive reason to depart from the principle of stare decisis. Most strikingly, the dissenters accused the majority of ignoring, without adequate study, “the impact that adopting Daubert would have on African American people, people of color, and people of various socioeconomic status in Maryland.”⁸

Maryland thus becomes the second state in the last fifteen months to switch from a Frye-based review to the federal Daubert approach; Florida made the same choice in May 2019. The majority also seems to have invited trial courts to revisit under the new Daubert standard the admissibility of certain types of evidence that had passed the Frye-Reed test:“[The move to Daubert] may mean, in a very real sense, that ‘everything old is new again’ with respect to some scientific and technical evidentiary matters long considered settled.”⁹ That message opens the door, potentially, for more restrictive approaches to expert testimony than the court has permitted in the past in, for example, lead paint, mold, or asbestos litigation.