Breaking news: Maryland adopts Daubert test for expert testimony

Today, in Rochkind v. Stevenson, the Maryland Court of Appeals adopted the Daubert test for the admissibility of expert testimony.

There’s a lot to digest, and we’ll have posts analyzing the decision sometime soon. In the meantime, here are links to some prior MdAppBlog posts by Derek Stikeleather on the issue:

The End of Frye-Reed

Update: The End of Frye-Reed Draws Closer

Those two posts are cited in Judge Watts’ dissenting opinion. Just a few days short of the blog’s 7th birthday, today is the first time a judicial opinion has cited us!

6 responses to “Breaking news: Maryland adopts Daubert test for expert testimony”

  1. Andre M Davis says :

    Can anyone identify a prior occasion (state or federal) in which a retired judge (Greene, J.) and thei successor (Biran, J.) voted on opposite sides of the same case in a 4/3 or 5/4 (or similar) vote outcome? Maybe I’m weird, but I find this fascinating.

  2. Anonymous says :

    It was happenstance that Greene was even on the panel. He sate in place of Judge Barbera, who was in the Savage concurrence. The opinion should have been 5-2.

    • Andre M Davis says :

      Interesting that the Chief would step off in such a momentous case, but perhaps there’s a good reason (e.g., a required recusal). By the way, as for my original question, it occurred to me that at the federal appellate court level, it likely happens frequently that a senior judge and their successor vote on opposite sides of a panel appeal. I seem to recall only one instance when Judge Harris and I voted differently on a panel during the three years she and I served together before my retirement.

      • Mike Wein says :

        Judge Davis, it’s not that unusual, in the Maryland system of recusals. For example, In Re SK last year, had a split between J. Harrell (Retired) and J. Hotten. There were other cases this term with J. Greene (Retired) and J. Biran, but I think they agreed for those, as most Md. COA decisions aren’t 4-3 or even 5-2 splits. I think it may strike you as more unusual, because in the Federal system, and thereby the analogous Supreme Court, there’s no ability for retired judges to sit at all. Legislation has been discussed to remedy the concern, but nothing has passed. One recusal in USSC, can greatly increase the odds of a 4-4 equal affirmance, and there’s no flexibility when a recusal is decided typically (Which could just be due to a recent law clerk arguing the case, or medical illness).

        A couple years back, I wrote an article published in the MSBA Bar Journal, on the Md. Constitutional rules applicable to recusals/disqualifications, which typically result in the random appointment of a recently retired and qualified COA judge (And on rare occasions, a retired COSA judge). Not sure if the scanned version is somewhere online, but I will try and locate it, and send you a copy.

  3. Andre M Davis says :

    Many thanks, Mike for your insights. Very helpful.

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