Did the Frankel Decision Create an Expert Affidavit Requirement for Rule 5-702 Motions?
When challenging an expert’s causation opinion that contradicts peer-reviewed medical literature under Rule 5-702(3), does the movant need to provide an affidavit from its own expert to explain the inconsistency between the literature and the challenged opinion? No.
Rule 5-702 does not require an expert affidavit for a court to consider relevant medical or other peer-reviewed scientific literature when ruling on the admissibility of expert testimony. Instead, it is a matter of counsel’s judgment (and possibly budget) to consider whether a competing expert affidavit would help show the court that the challenged opinion is unreliable and inadmissible under Rule 5-702. Although a good expert’s affidavit is often helpful, it might over-complicate some proceedings by opening a prolonged and distracting “battle of the experts.”
Sometimes, professional peer-reviewed literature speaks for itself and most effectively rebuts the challenged opinion on its own. Judges, as “gatekeepers,” do not require expert affidavits to walk them through such literature. But dicta from a recent Court of Appeals opinion, Frankel v. Deane[i], seems to suggest otherwise. This could lead some courts to invent a nonexistent expert-affidavit requirement under Rule 5-702.
Rule 5-702 after Rochkind’s Adoption of Daubert
In the post-Rochkind era, practitioners and judges alike are striving to understand what more, if anything, is expected of expert witnesses to withstand Rule 5-702 challenges. All seem to agree that the Rochkind decision,[ii] which adopted the federal Daubert standard for admitting expert testimony in all civil and criminal proceedings, requires judges to directly assess the reliability of the expert’s methodology. This includes testing the sufficiency of the opinion’s factual basis under Rule 5-702(3).
For some judges, who may have been curtailing their Rule 5-702 analysis once they were satisfied that the expert had relevant expertise, more is required. When a complex but unfounded opinion is challenged, judges cannot simply defer to lay jurors to discern the fundamental flaw and reject it. Trial courts, although not metaphorical “armed guards,” are still metaphorical “gatekeepers” bound to protect juries from hearing unreliable and inadmissible expert testimony.[iii] All of this has gotten trial judges more involved in testing the reliability of expert testimony before allowing it to go to juries.
Frankel v. Deane and the Impact of Rochkind
In August, the Court of Appeals issued its opinion in Frankel v. Deane, a dental malpractice action alleging essentially that the plaintiff’s lingual nerves were negligently severed during her molar extraction. The trial court, ruling before Rochkind was issued and applying the now-retired Frye-Reed test, precluded the plaintiff’s causation expert and entered judgment for the defendants, but the Court of Special Appeals reversed[iv] and found the causation opinion admissible without applying any Rochkind/Daubert analysis. The Court of Appeals vacated the opinion and remanded the case to the trial court—to be assigned to a different judge, who would not appear partial to the defense—to apply Rochkind.
Both appellate courts criticized the trial court’s overreach in resolving factual disputes under Rule 5-702 and essentially deciding for itself that the plaintiff/patient was being untruthful when reporting, two years after her molar extraction, that she had lost all sensation and taste in her tongue. The records of her treating physicians (Drs. Frankel and Kim) reflected that she had reported improvement in the months after the procedure, but the patient (Ms. Deane) denied that she had told them that.
The Court of Appeals explained that the “circuit court improperly took sides in a credibility contest between Drs. Frankel and Kim on one hand and Ms. Deane on the other hand.”[v] It added that the “circuit court was confronted with medical records from Drs. Frankel and Kim that were disputed in multiple material respects by their patient. The conflicting evidence on these issues teed up a classic credibility contest for the jury—not the court—to resolve.”[vi] This critique makes good sense. Whether the plaintiff was lying about her condition is a quintessential factual dispute (unless there is proof that her testimony cannot be true).
The extent of Ms. Deane’s nerve injury was crucial to liability and the reasonableness of her expert’s opinions. All agreed that medical literature showed that a partial lingual nerve injury was possible even without any negligence. But the plaintiff and her experts claimed that the lingual nerve had been completely severed and that such severe, permanent injuries do not happen during molar extraction without negligence.[vii] This gave both appellate courts what they needed to reverse the trial court for exceeding its role in assessing the experts’ factual basis and methodology and improperly resolving factual disputes that belong to the jury.
Medical Literature and Expert Testimony
The trial court erred by misreading the medical literature—not by relying on it. Relevant medical literature established that lingual nerve injuries can occur without any negligence but did not conclusively establish that lingual nerves can be completely severed and permanently damaged without negligence. The Court of Appeals recognized that, for “the court to have nonetheless ‘found’ that Ms. Deane’s alleged injuries could have occurred without negligence, it had to discount Dr. Kotikian’s testimony on the issue and impose its own interpretation of the medical literature, without the aid of any expert testimony to explain the text.”[viii] In other words, the trial court misinterpreted the medical literature when it “relied solely on excerpts from the medical literature provided by the parties.”[ix]
Describing “two problems with this approach,” the Court of Appeals explained first that “expert testimony is required to establish the standard of care, breach, and causation elements of a medical negligence claim” and that learned treatises “are admissible only ‘when there is an expert witness on the stand.’”[x] It then observed that “the court was interpreting the medical literature without the assistance of expert testimony.”[xi] The Court explained that “the medical literature does not appear to be inconsistent with [plaintiff’s expert’s] testimony that the passage of two years since the surgery was the factor that enabled him to diagnose the severed lingual nerve utilizing the sensory examination.”[xii] Because plaintiff’s causation opinion was reconciled with the medical literature, the brief detour into the admissibility of learned treatises is an unfortunate non sequitur.
The opinion’s unfortunate juxtaposition of statements about the inadmissibility of learned treatises without supporting expert testimony in its analysis of the trial court’s errors seems to suggest that judges should not (1) consider inadmissible testimony when ruling on a Daubert motion or (2) interpret medical literature without assistance from an expert. Neither takeaway would accurately state Maryland law. And, to be fair, the Court of Appeals did not actually write that. But the mistaken inference could be easily drawn from the presentation.
The roles of judge and jury are profoundly different. Jurors, as factfinders, are limited to admissible evidence presented at trial. But judges, when deciding whether an expert’s opinion has a sufficient factual basis, can make whatever inquiries they want to satisfy themselves that the challenged opinion has a sufficient factual basis. Outside the jury’s presence, trial judges can interrogate experts with their own questions, judges can read articles provided by the parties—or even articles provided by their own law clerks or internet research. In conducting the Rule 5-702 inquiry, trial judges are not limited to admissible evidence. The court’s job is to understand the opinion and affirm that the challenged opinion has a sufficient factual basis to be shared with jurors. Frankel should not be misread to forbid such inquiries.
A host of considerations go into the decision of whether to support a Rule 5-702 motion with an expert affidavit, especially when peer-reviewed medical literature makes the point much more credibly. Although a good expert can certainly help explain things to a judge who lacks relevant expertise, most judges are appropriately skeptical of a paid expert’s “interpretation” of medical literature. A challenged expert can capitalize on this skepticism by turning a 5-702 hearing into a referendum on the opposing expert who submitted the affidavit, drawing attention away from the expert whose opinion is being challenged. Often, a challenged expert’s goal is to create enough complexity and noise to curb the trial court’s willingness to preclude any expert from testifying—a result that favors junk science. A motion that is supported by authoritative literature and properly focused on the challenged expert, who has the burden of showing that the opinion is admissible, can be the most effective way of exposing the analytical gaps in an expert’s inadmissible opinions.
The Frankel court correctly recognized that medical literature that does not disprove an expert’s opinion cannot be exclusively relied upon to prelude an expert under Rule 5-702. But it invited some confusion when it briefly addressed the inadmissibility at trial of learned treatises that are not sponsored by an expert. That is not part of the Rule 5-702 inquiry. But one should be prepared to see practitioners arguing incorrectly that, under Frankel, authoritative, peer-reviewed literature accompanying a meritorious Rule 5-702 motion should be disregarded if not supported by an expert affidavit. No such rule exists.
[i] Frankel v. Deane, ___ Md. ___, 281 A.3d 692 (2022).
[ii] Rochkind v. Stevenson, 471 Md. 1, 236 A.3d 630 (2020).
[iii] See State v. Matthews, 479 Md. 278, 322 (2022)
[iv] Deane v. S. Md. Oral & Maxillofacial Surgery, P.A., No. 0218, 2021 Md. App. LEXIS 715 (Aug. 11, 2021), vacated sub nom. Frankel v. Deane, 281 A.3d 692 (Md. 2022).
[v] Frankel, 281 A.3d at 705.
[vii] See id. at 698-99.
[viii] Id. at 710 (emphasis added).
[ix] Id. at 707.
[x] Id. (citing Maryland Evidence Handbook § 813 and Md. R. 5-803(b)(18)).