Maryland’s “New” Admissibility Standard
In 1978, in Reed v. State, 391 A.2d 364 (Md. 1978), the Maryland Court of Appeals adopted the “general acceptance” test established by Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), for the admissibility of novel scientific principles. Under Frye-Reed, expert testimony was admissible if predicated on a novel scientific principle or discovery that is generally accepted in the relevant scientific community. Stevenson II, 2020 WL 5085877, at *5. If the expert testimony was premised on established, rather than novel, scientific methods, its admissibility was determined exclusively under the three pillars of Maryland Rule 5-702, which requires the court to determine (1) if the expert is sufficiently qualified, (2) if the subject matter is appropriate for expert testimony, and (3) if the testimony is supported by a sufficient factual basis. Thus, pre-Stevenson II, all expert testimony needed to satisfy Maryland Rule 5-702, and some “novel” testimony also needed to satisfy the general acceptance test.
Stevenson II dispensed with Frye-Reed and held that Daubert and its progeny provide the appropriate interpretation of Maryland Rule 5-702. In Daubert, the Supreme Court rejected Frye’s implicit premise that general acceptance was the exclusive measure of admissibility. Rather, the Supreme Court read Federal Rule of Evidence 702—the federal counterpart to Maryland Rule 5-702—to require courts to make a threshold determination as to reliability. Daubert, 509 U.S. at 589. To that end, Daubert and its progeny developed a non-exclusive list of factors aimed at testing the reliability of expert testimony, which are now controlling in Maryland. Judge Getty listed 10 of those factors in Stevenson II:
- whether a theory or technique can be (and has been) tested;
- whether a theory or technique has been subject to peer review and publication;
- whether a particular scientific technique has a known or potential rate of error;
- the existence and maintenance of standards and controls;
- whether a theory or technique is generally accepted (i.e., Frye-Reed);
- whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independently of the litigation, or whether they have developed their opinions expressly for purposes of testifying;
- whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;
- whether the expert has adequately accounted for obvious alternative explanations;
- whether the expert is being as careful as he or she would be in his or her paid litigation consulting; and
- whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.
Stevenson II, 2020 WL 5085877, at *16–17.
Daubert prescribes a flexible approach. Judges may apply some, all, or none of these factors to determine the reliability of the proposed expert’s principles and methodologies and, thus, the admissibility of his or her testimony. Moreover, unlike Frye-Reed, the Daubert standard applies to all expert testimony, not just testimony considered to be based on “novel” techniques. Thus, in Stevenson II, the Court of Appeals has made Daubert the single standard of admissibility for all expert testimony in Maryland.
Why Was the Maryland Court of Appeals Finally Ready to Adopt Daubert?
According to the Court of Appeals, at least 39 states had adopted Daubert in the nearly three decades since the Supreme Court issued that opinion. Stevenson II, 2020 WL 5085877, at *6. The Court of Appeals pushed Maryland into the ranks of Daubert jurisdictions for several reasons.
First, there is a credible argument that Daubert was already the law in Maryland in substance, if not in name. The majority chronicled the evolution of Frye-Reed and made clear that many core elements of Daubert were already incorporated into the Frye-Reed and Maryland Rule 5-702 analyses. Indeed, prior Court of Appeals opinions—particularly those written by Judge Sally Adkins, cited extensively in the majority opinion—acknowledged Maryland’s “jurisdictional drift” toward Daubert. Judge Getty focused on two major ways in which the Frye-Reed standard had drifted toward Daubert: (1) Frye-Reed was modified to apply to scientific conclusions, not just methodologies, meaning that courts excluded opinions that contained an “analytical gap” between the methodologies employed and the conclusions reached; and (2) in practice, Frye-Reed was no longer limited to expert testimony premised on novel methodologies but also applied to opinions rooted in established scientific processes. Consequently, Judge Getty observed that “the modern Frye-Reed standard is not what it was when we adopted the test in 1978.” Stevenson II, 2020 WL 5085877, at *9.
Second, and relatedly, the court’s implicit incorporation of components of Daubert without clearly adopting Daubert in full “muddied the waters” and led to clumsy, duplicative analyses. Stevenson II, 2020 WL 5085877, at *11. Retiring Frye-Reed in favor of a single admissibility standard applicable to all expert testimony will provide a more streamlined framework for judges and litigants.
Third, and perhaps most importantly, the majority concluded that Daubert provides a superior admissibility standard. Daubert shifts the admissibility inquiry to the reliability of the methodologies used to reach a conclusion, and away from general acceptance alone. This shift, according to the majority, enables judges to distinguish good science from bad more accurately.
What Is the Practical Impact on Litigation in Maryland?
The most significant impact of the court’s decision to abandon Frye-Reed for Daubert’s multifactor, flexible approach is that expert methodologies or principles long escaping scrutiny under the “general acceptance” standard will be once again tested in Maryland. That is, scientific methods that were once generally accepted, but whose underpinnings are deemed questionable or invalid by modern scientific development, will be vulnerable to exclusion.
For example, plaintiffs in asbestos-related personal injury cases often rely on expert testimony that each and every exposure to asbestos is a substantial contributing factor to the development of asbestos-related diseases. In the last decade, a wave of Daubert jurisdictions, including the U.S. District Court for the District of Maryland, have excluded the “each and every exposure” opinion as untethered from any valid, scientific methodology. Such testimony, however, has been effectively insulated from challenge in Maryland’s courts. No more. Maryland courts will soon be faced with renewed challenges to the “each and every exposure” opinion, and Daubert decisions excluding this opinion will now take on a far greater level of persuasive value.
Although adopting Daubert does not work a massive sea change, given Maryland’s jurisdictional drift, courts and litigants will be forced to take a fresh look at methodologies and principles underlying expert testimony. Admissibility in prior cases no longer guarantees admissibility in the next. While some inconsistency between decisions is inevitable, the broader result should be a judiciary better equipped to shield juries from junk science.
National Implications—Is the End of Frye Nigh?
Beginning in 1923 and continuing for nearly 70 years, the Frye “general acceptance” standard was the predominant test for determining the admissibility of expert testimony throughout the nation. Since 1993, however, Daubert has swept the nation to become the overwhelming admissibility standard for expert testimony. With Maryland joining the fray, over 80 percent of states now apply some version of the Daubert test for determining whether to admit expert testimony. Maryland’s adoption of Daubert has pushed Frye to the brink.
Nonetheless, some states remain steadfast in their adherence to the Frye standard, including California, Illinois, Minnesota, New York, Pennsylvania, and Washington. Despite the overwhelming adoption of Daubert in most jurisdictions, it seems Frye will not be relegated to the dustbin anytime soon. Earlier this year, the highest courts of New York and Pennsylvania reaffirmed Frye. See, e.g., People v. Williams, 147 N.E.3d 1131, 1139 (N.Y. 2020) (applying the “long-recognized rule of Frye” to determine whether the “trial court erred in admitting disputed scientific evidence in the absence of a Frye hearing”); Walsh v. BASF Corp., 2020 WL 4135151, at *6–13 (Pa. July 21, 2020) (explaining Pennsylvania’s reliance on the Frye test in the course of reviewing the trial court’s rulings on various arguments related to the admissibility of expert testimony). While Frye is certainly on its last legs, it may be some time before it becomes a legal relic.
