Weighing Controlling and Persuasive Daubert Authorities for Maryland State Courts
Since Maryland’s formal adoption of the Daubert standard for admitting expert testimony in Rochkind v. Stevenson, 471 Md. 1 (2020), many Maryland judges and practitioners have sought more specific guidance on how to apply our new standard. Among the many questions, what weight do Daubert cases from outside Maryland hold? And how important are the official Advisory Committee notes for Federal Rule 702 now that Maryland—by adopting the standard that federal courts use to construe FRE 702—has essentially adopted FRE 702?
First, what is controlling besides reported Maryland appellate decisions? Rochkind expressly makes Daubert a controlling authority, and it would be reasonable to treat the rest of the Daubert trilogy (Joiner and Kumho Tire) as well as any other United States Supreme Court opinion construing FRE 702 as controlling authorities in Maryland state courts. But what to make of Daubert case law from other courts outside Maryland? The Rochkind court, byrecognizing that “Maryland courts will be able to ‘draw from and contribute to the broad base of case law grappling with scientific testimony,’” seems to urge Maryland judges and practitioners to turn not only to the Supreme Court’s Daubert trilogy but to also use the broad body of Daubert case law developed in other jurisdictions. See Rochkind, 471 Md. at 34-35 (quoting Savage v. State, 455 Md. 138, 185 (2017) (Adkins, J., concurring)); see also id. at 48-49. Yet, no one expects Maryland state courts to treat the Daubert jurisprudence of, for example, the federal District of Wyoming or the Florida Supreme Court as controlling authorities. These will remain only as persuasive as their reasoning.
Second, what is Daubert law? The analysis is complicated by the fact that courts do not uniformly apply Daubert standards, despite starting from the same set of rules and principles. Courts now seem to appreciate that Daubert gatekeeping applies to all expert opinions and not merely a subset of technical scientific ones. But, speaking overbroadly, courts still seem split on whether to apply (1) a toothless version of Daubert, which treats the court’s gatekeeping role as more of a crossing-guard role, directing all but the most outrageously unfounded expert opinions to the jury, or (2) a Daubert “with bite,” which subjects expert opinions (or, at least, those that are challenged) to meaningful scrutiny under a preponderance of the evidence standard. Which version of Daubert did the Rochkind Court adopt?
To be clear, different federal courts do not expressly acknowledge using different Daubert standards. Courts are more likely to refer to the Daubert rulings that they disagree with—unless from a controlling court—as merely wrongly decided. But the rift is visible for those who look. The Fourth Circuit—and the federal advisory committee—both seem to apply Daubert “with bite.” They emphasize that questions of reliability and relevancy go to admissibility, not merely weight. See Sardis v. Overhead Door Corp., 10 F.4th 268 (4th Cir. 2021). The Sardis Court explained that when admissibility under Daubert is questioned, trial courts are required to “make explicit findings.” Id. at 283. In doing so, it relied, in part, on the Advisory Committee on Evidence Rules’ current proposal to amend Rule 702. Id. at 283-84 (quoting Advisory Comm. on Evidence Rules, Agenda for Committee Meeting 17 (Apr. 30, 2021)). The Committee took direct aim at courts applying a toothless Daubert, bemoaning that “[u]nfortunately 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 generally questions of weight and not admissibility. These rulings are an incorrect application of Rules 702 and 104(a) and are rejected by this amendment.” Id. (emphasis added). For the official notes of a federal rules advisory committee, it will be hard to find a more stinging rebuke than that sentence.
The Committee’s sharp critique seems directed at decisions in the Eighth and Ninth Circuits, which give experts deference that they would not enjoy in other circuitson the reliability and relevancy of their opinions. See, e.g., In re Roundup Prods. Liab. Litig., 390 F. Supp. 3d 1102, 1113 (N.D. Cal. 2018); Amador v. 3M Co. (In re Bair Hugger Forced Air Warming Devices Prods. Liab. Litig.), 9 F.4th 768 (8th Cir. 2021).
For its part, the Rochkind opinion, while not acknowledging the heterogeneity of Daubert jurisprudence, seems more aligned with the Advisory Committee and Sardis court’s approach: Daubert requires a trial court to decide reliability and relevancy as a threshold question of admissibility and not leave such questions to jurors as going merely to weight. See Rochkind, 471 Md. at 33. The Rochkind opinion expressly endorses the Advisory Committee Notes, stating that it “is often helpful to turn to FRE 702 and the associated Advisory Committee Note to understand Daubert’s application.” Id. The Rochkind court also looked locally for Daubert authority pointing to Daubert jurisprudence from the District of Columbia Court of Appeals, the Federal Circuit, and the federal District of Maryland. See Rochkind, 471 Md. at 32-34.
Third, are Frye-Reed precedents useless? No. Practitioners should maintain command of Maryland Frye-Reed case law that expressly relies on Daubert principles, even if nominally applying the overruled Frye-Reed test. The Rochkind court liberally quoted Judge Adkins’s prior concurrences on Maryland’s “Daubert-drift” under Frye-Reed, and it even characterized the Rochkind opinion as “complet[ing]” its “jurisprudential drift.” Id. at 47. That process took decades and cases like Blackwell v. Wyeth, which nominally applied Frye-Reed but relied on Joiner and Daubert, will remain influential.
Forthcoming opinions from Maryland’s appellate courts should help flesh out many of the ambiguous or unresolved questions in Maryland’s nascent Daubert jurisprudence.