What is a “Daubert issue” in Maryland?

By Derek M. Stikeleather

After Maryland’s much-publicized adoption of the Daubert standard for expert testimony in its final opinion of last term, Rochkind v. Stevenson, 471 Md. 1, 38 (2020), many practitioners are left wondering, “what is a ‘Daubert issue’?” The question has greater urgency because the Rochkind opinion made Daubert immediately effective and applicable to all “cases that are pending on direct appeal [on Aug. 28, 2020] . . . where the relevant question has been preserved for appellate review.”[i]

The short, technical answer is that every expert opinion presents a “Daubert issue” because Daubert applies Rule 5-702, which applies to all expert testimony. Daubert presents no comparable dichotomy between cases that present “Frye-Reed issues” and those that do not. The salient question for practitioners is not whether Daubert applies to an opposing expert’s opinion —it does—but whether the opinion merits a formal challenge in the form of Daubert briefing and a possible hearing. The fact that Daubert now applies to all expert testimony does not mean that one should always—or even typically—file Daubert briefs. Although countless expert opinions would withstand Daubert inquiry and be admissible, it will never be true that Daubert simply does not apply to an expert opinion, as was once true for some opinions under Frye-Reed.

The confusion over whether an expert’s opinion presents a “Daubert issue” springs from various judicial statements over the last several decades that an expert challenge, for whatever reason, did not present the court with a “Frye-Reed issue.” Such statements were not necessarily wrong when made. In both Myers v. Celotex Corporation (1991)[ii] and CSX Transportation v. Miller (2004)[iii], the Court of Special Appeals stated that certain medical-causation opinions were not subject to the Frye-Reed test. Because Frye-Reed originally defined itself as applying only to a subset of expert opinions—those that were novel and scientific—and asked only whether the methodology was generally accepted in the relevant scientific community, plenty of expert opinions or challenges to those opinions fell outside Frye-Reed’s original domain.

Two factors made defining “Frye-Reed issues” more difficult: the Court of Appeals’ steady erosion of Frye-Reed’s limits over the last 20 years, also called its “drift”[iv] towards Daubert, and the 1994 adoption of Maryland Rule 5-702, which requires judges to evaluate all expert opinions for qualifications, fit, and a sufficient factual basis, which includes methodology.

This evolution left practitioners and judges, before Rochkind, with an overcomplicated evidentiary regime where expert opinions always had to be evaluated under Rule 5-702 but only sometimes under an ever-expanding Frye-Reed test that had become riddled with exceptions. It may have been true, decades ago, that some expert opinions did not present “Frye-Reed issues.” But after the 2009 Blackwell v. Wyeth[v] decision embraced many Daubert principles (without formally adopting Daubert) and held that any opinion with an “analytical gap” violated Frye-Reed, the line between Frye-Reed issues and non-Frye-Reed issues was forever obscured.

By 2018, the Court of Special Appeals was expressly discouraging parties from relying on its Myers and Miller precedents, supra, to say that an expert opinion did not present a Frye-Reed issue. The premise had eroded because the cases “were decided before the Court of Appeals extended the reach of Frye-Reed beyond the bounds of novel scientific tests and techniques.”[vi] For the same reasons, any Maryland cases holding that expert opinions in certain disciplines do not present “Frye-Reed issues” were already in doubt before Rochkind retired Frye-Reed. And their reasoning certainly would not apply to Daubert.  

It is crucial to view Daubert as amplifying Rule 5-702 rather than replacing Frye-Reed. Daubert is not Frye-Reed 2.0, and viewing it as such is apt to mislead practitioners into asking whether an expert’s opinion presents a “Daubert issue” just as it may have once been proper to ask whether an opinion presents a “Frye-Reed issue.” That is the wrong question. Because “Daubert is a new interpretation of Rule 5-702,” it should be treated as the official instruction manual for Rule 5-702, which always applies to expert opinions—even when parties do not challenge an expert.[vii] Frye-Reed never explained Rule 5-702; it preceded Rule 5-702 and imposed different requirements than Rule 5-702.

Practitioners should not view Maryland’s adoption of Daubert as opening the floodgates to more expert challenges. The adoption of Rule 5-702 in 1994 did not prompt an explosion of expert-related motions practice, nor should the adoption of Daubert, which merely supports Rule 5-702. As the Court of Special Appeals recently explained, “Rule 5-702 remains the primary analytical rubric—the [Daubert] standard contributes to the application of the Rule, not the other way around.”[viii] Rule 5-702 and Daubert both provide more clarity for courts and practitioners on the standards that control the admissibility of an expert’s opinion. They do not invite additional briefing.

When framing Daubert challenges, remember that Frye-Reed was not replaced, it was retired. Thus, every expert challenge in Maryland presents a “Daubert issue.” The unsettled question for practitioners is not whether expert testimony presents a “Daubert issue” but whether it is wise to dedicate the parties’ and the court’s resources to formally challenging an expert’s opinion.


[i] Rochkind, 471 Md. at 38.

[ii] 88 Md. App. 442, 458, 594 A.2d 1248 (1991).

[iii] 159 Md. App. 123, 186-87, 858 A.2d 1025 (2004).

[iv] Rochkind, 471 Md. at 16-20, 26.

[v] 408 Md. 575 (2009).

[vi] Sissoko v. State, 236 Md. App. 676, 715, 182 A.3d 874, 897 (2018)

[vii] Rochkind, 471 Md. at 38.

[viii] Matthews v. State, Case No. 3280, Sept. Term 2018 (Feb. 25, 2021) at 31.

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