Maryland’s Highest Court Overrules Frye-Reed, Officially welcoming the era of Daubert

Maryland’s Highest Court Overrules Frye-Reed, Officially welcoming the era of Daubert

By Saad Malik, Esquire

On August 28, 2020, the Maryland Court of Appeals voted 4-3 to officially adopt Daubert as the standard by which courts admit or exclude expert testimony, abandoning the previously standing Frye-Reed test.  See Rochkind v. Stevenson, Case No. 47, September 2019 Term (Aug. 28, 2020).  In 1978, Maryland Courts adopted an evidentiary standard which laid out the admissibility of expert testimony relating to scientific matters.  Taking initial guidance from the United States Court of Appeals for the District of Columbia’s earlier decision in Frye v. United States, 293 F. 1012 (D.C. Cir. 1923), the Frye-Reed standard was born stating that in order for an expert’s opinion to be acceptable “the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field.”  Reed v. State, 283 Md. 374, 381 (1978).

In 1993, the Supreme Court of the United States adopted a new standard, holding that Federal Rule of Evidence (“FRE”) 702 superseded the “general acceptance” test laid out by Frye and outlined a list of factors for courts to consider when determining the reliability of expert testimony.  See Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993).  While most of the nation took this as an opportunity to replace their respective standards to become more aligned with Daubert, and Maryland added additional requirements of adherence to Maryland’s iteration of FRE 702, Maryland Rule 5-702, Frye-Reed remained the governing authority for evaluation of expert testimony in Maryland. 

The Court of Appeals reasons that this formal adoption of Daubert will streamline the evaluation of expert testimony under Md. Rule 5-702, putting forth a cohesive analysis for consideration of any expert testimony.  The Rochkind opinion outlines ten factors for trial judges to consider when evaluating expert testimony[1]:

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

(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;

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

(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.  Rochkind at 36.

            The shift to Daubert is effective immediately and it “applies to … any other cases that are pending on direct appeal… where the relevant question has been preserved for appellate review.”  Id. at 39. 

[1]While the opinion in Daubert detailed five factors, the Maryland Court of Appeals has incorporated additional factors developed by federal and other state courts over the years in evaluating expert testimony.