“Don’t Say Daubert”? Why Not?

By Derek Stikeleather

No one likes to arrive at a party just as the fun is ending and the guests are leaving. Yet, within a year of the Court of Appeals completing its two-decade journey towards formally adopting the Daubert standard for admitting expert testimony, see Rochkind v. Stevenson, 471 Md. 1 (2020), a nationwide legal movement has begun rallying behind the slogan “Don’t Say Daubert.” Has Maryland arrived at the Daubert party only to see everyone else leave?

Probably not.

The “Don’t Say Daubert” movement reflects the emphasis of many courts and practitioners that case law construing FRE 702, although important, should not be elevated above the text of the rule itself and certainly should not be allowed to contradict the rule’s text. The Court of Special Appeals, applying Rule 5-702 after Maryland adopted Daubert, made the point explicitly:

. . . Rule 5-702 remains the primary analytical rubric—the standard contributes to the application of the Rule, not the other way around. As Rochkind itself directs, “[a]dopting Daubert eliminates the duplicative analysis [of the reliability of the expert’s methodology] and permits trial courts to evaluate all expert testimony—scientific or otherwise—under Rule 5-702.” Id. at 35 (emphasis in original).

Matthews v. State, 249 Md. App. 509, 542 (2021) (brackets in Matthews). More vigorous critical commentary has come from defendant-friendly organizations like Lawyers for Civil Justice, who maintain the Don’t Say Daubert website at https://www.dontsaydaubert.com/, and the Drug and Device Law blog (see https://www.druganddevicelawblog.com/2021/08/dont-say-daubert.html). How did we get here?

In federal courts, the need for clarification on the controlling rules for admission of expert testimony stems, in part, from Daubert’s unusual relationship with Rule 702. Despite the adoption of the Federal Rules of Evidence in 1975, including Rule 702, most federal appellate courts held that the Frye general-acceptance standard remained valid, at least for novel, scientific expert opinions. The Supreme Court’s 1993 Daubert opinion—supplemented by Joiner (1997) and Kumho Tire (1999)—clarified that Rule 702 had displaced the Frye standard, and the Court created its own non-exclusive list of Daubert factors to be applied when construing Rule 702. This, in turn, created the odd, tail-chasing spectacle of the Advisory Committee amending Rule 702 in 2000 to make Rule 702 expressly say what the Supreme Court had held that Rule 702 already said. As amended in 2000, Rule 702 now expressly incorporates the Daubert trilogy.

All fixed? Not yet. In the twenty years since the 2000 amendments to Rule 702, courts have been understandably devoted to case law—specifically Daubert and cases applying it—to understand what Rule 702 means. But, in doing so, many courts have lost sight of the text of Rule 702 itself. This has too often prompted them to elevate not only the Daubert standard above Rule 702’s text but legal principles that preceded Daubert and even the 1975 adoption of Rule 702 itself. That is clear legal error when the old principles contradict the controlling text of Rule 702.

Federal case law that nominally applies Daubert continues to be laced with legal propositions that create a strong presumption of admissibility that cannot be reconciled with the plain text of Rule 702. For this reason, the Advisory Committee on FRE 702 is now proposing rule changes “to clarify and emphasize that the admissibility requirements set forth in the Rule must be established to the court by a preponderance of the evidence.” See Advisory Committee on Evidence Rules, April 30, 2021, at p. 105 (emphasis added). These clarifications of the proponent’s evidentiary burden are not substantive changes. The Advisory Committee explains that the clarification is needed because “many courts have held that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility,” and bluntly stated that these “rulings are an incorrect application of Rules 702 and 104(a).” 2021 FRE 702 Advisory Committee notes.

To illustrate, the Eighth Circuit Court of Appeals, in a 2021 opinion admitting expert testimony, quoted its own 1995 precedent, i.e., post-Daubert, for the nowincorrect but frequently repeated legal proposition that “the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.” Masters v. City of Indep., 998 F.3d 827, 840 (8th Cir. 2021)(quoting Hose v. Chi. Nw. Transp. Co., 70 F.3d 968, 974 (8th Cir. 1995)). Although the 1995 Hose opinion post-dated (and presumably complied with) Daubert, it was quoting a 1988, i.e., preDaubert opinion for the same point. 70 F.3d at 974 (quoting Loudermill v. Dow Chem. Co., 863 F.2d 566, 570 (8th Cir. 1988)). Even worse, for the same point, the Loudermill court was relying on a 1969 opinion, i.e., pre-FRE 702. 863 F.2d at 570 (citing Twin City Plaza, Inc. v. Central Surety & Ins. Corp., 409 F.2d 1195, 1203 (8th Cir. 1969)). In this way, “Daubert” opinions are being handed down in 2021 as ostensibly compliant with the 2000 amendments to Rule 702 but, in fact, reliant on overly deferential evidentiary principles from the 1960s. That should change with the Advisory Committee’s new emphasis that each element of Rule 702 must be met by a preponderance of the evidence and that there is no presumption that favors letting juries decide if an expert opinion has a sufficient factual basis.

Does this mean that Maryland practitioners should ‘stop saying Daubert’ and refer only to Rule 5-702? Not yet. Because Rule 5-702 has existed since 1994 and the Court of Appeals adopted Daubert for construing Rule 5-702 only one year ago, I would continue to refer to “Daubert briefs” and “Daubert hearings” to emphasize the important recent developments in Maryland evidence law. Keeping courts focused on Maryland’s formal adoption of Daubert will also make Maryland state courts less likely to erroneously disregard FRE 702’s 2021 amendments and advisory committee notes as somehow not relevant to state-court proceedings or treat challenges to the factual basis of an expert opinion as jury questions to be challenged on cross-examination. That said, don’t be surprised if you start hearing Maryland practitioners say “don’t say Daubert.”

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