2023 and the Summer of Daubert
The summer of 2023 brought us more than sunshine and cookouts. Each month this summer, the Supreme Court of Maryland handed down a major decision on Rule 5-702 and the Daubert/Rochkind standard for admissibility of expert testimony. June gave us Abruquah v. State, No. 10 (June 20, 2023). July gave us Oglesby v. Baltimore School Associates, No. 26 (July 26, 2023), and August 31, the last day of the 2022 term, brought us Katz, Abosch, Windesheim, Gershman& Freedman, P.A. v. Parkway Neuroscience and Spine Institute, LLC, No. 30 (Aug. 31, 2023). These opinions join the prior term’s lone high-court decision on the same issue, State v. Matthews, 479 Md. 278 (2022), giving us a total of four post-Rochkind Supreme Court precedents reviewing trial-court applications of the Daubert/Rochkind standard. See Rochkind v. Stevenson, 471 Md. 1 (2020). The 296 combined pages of opinions, concurrences, and dissents from this summer’s trilogy will be cited for decades to come in cases applying Rule 5-702. Each case addressed whether the expert’s challenged opinion had a sufficient factual basis under subsection (3) of Rule 5-702, which includes the inquiry into whether there exists an impermissible analytical gap between the expert’s methodology and conclusion.
Read More…Daubert “Fit” and the “Appropriateness” of Expert Testimony Under Rule 5-702(2)
With Maryland’s formal adoption of the Daubert standard for admissibility of expert testimony in all civil and criminal cases, the meaning of Maryland Rule 5-702 should now mirror the meaning of Federal Rule of Evidence 702. But the textual structure and ordering of the two rules still differs. The federal rule was revised in 2000 to better reflect the holdings of the Daubert trilogy. The Maryland rule was modeled after FRE 702 as it existed in 1995.
Despite their different structure and ordering, the two rules, which are presented in full at the bottom of this post, share three core requirements for expert testimony:
- Qualifications: both rules require that the witness be “qualified as an expert by knowledge, skill, experience, training, or education.”
- Helpfulness: Both rules require that the testimony will either “help” (FRE 702(a)) or “assist” (Md. R. 5-702) “the trier of fact to understand the evidence or to determine a fact in issue.”
- Sufficient Factual Basis: The rules require that the testimony rest upon either “a sufficient factual basis” (Md. R. 5-702(3)) or “sufficient facts or data” (FRE 702(b)). Incorporating the Daubert trilogy, the federal rule then spells out that the testimony must be “the product of reliable principles and methods” (FRE 702(c)) that were “reliably applied” to “the facts of the case.” (FRE 702(d)). Maryland has long imposed the same requirement through case law. See Rochkind v. Stevenson, 471 Md. 1, 22 (2020).
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?
Read More…“Don’t Say Daubert”? Why Not?
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?
Read More…The Future of Daubert in Maryland
I revisit my favorite Maryland Appellate Blog topic, the admissibility of expert testimony in Maryland courts, because it continues to generate fresh, important questions for judges and practitioners. With the Court of Appeals formally adopting Daubert as the standard for construing Maryland Rule 5-702 in all state courts, see Rochkind v. Stevenson, 471 Md. 1 (2020), Federal Rule of Evidence 702 has become, for all intents and purposes, as relevant as Maryland Rule 5-702. This is so because courts cannot adopt Daubert without adopting FRE 702.
But the unusual historical interplay between the Supreme Court’s 1993 Daubert decision and the original FRE 702 can obscure FRE 702’s primacy in a Daubert analysis. The 2020 Rochkind decision—by nominally adopting “Daubert” rather than FRE 702—similarly risks confusion if Maryland courts try to “apply Rochkind/Daubert.” Maryland courts and practitioners must be clear-eyed that, in all expert challenges, they are now applying Maryland Rule 5-702 and FRE 702. And both rules continue to evolve.
Read More…What is a “Daubert issue” in Maryland?
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.
Read More…It’s Official: Maryland Accepts Daubert as Controlling Law for Admitting Expert Testimony
Editor’s Note: The author of this post represented the Defendant in the appeal. This article does not address any case-specific facts and instead focuses on the holding’s impact on Maryland law generally. As with all of our posts, it contains only the author’s personal opinions, not those of his firm or his clients. This is the blog’s first substantive post on Rochkind, and we expect to have more. If you are interested in submitting a guest post, please contact the editor-in-chief.
After more than a decade of incrementally adopting the Daubert standard—and the steady erosion of Frye-Reed as an independent, additional requirement for trial courts applying Maryland Rule 5-702—the Court of Appeals has clarified Maryland law on expert testimony. In Friday’s landmark Rochkind v. Stevenson opinion (its final of the Term), the Court formally adopted the Daubert standard as controlling Maryland law.[1] In doing so, it retired the superfluous Frye-Reed test, which had not only become riddled with exceptions but also evolved into the same “analytical gap” test that courts use when applying Rule 5-702 to expert testimony.
Read More…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.
Read More…Abruquah v. State debates abuse of discretion under Rule 5-702.
The Supreme Court of Maryland’s recent 4-3 decision in Abruquah v. State takes a strict view of the admissibility of firearms identification testimony under Rule 5-702. (Sept. 2022 Term, Case No. 10) (decided June 20, 2023). The decision raises complex questions about whether defendants can retroactively challenge criminal convictions that were supported by such testimony. But I will leave that issue to others. Here, I want to focus on the Justices’ vigorous debate over the abuse-of-discretion standard under Rule 5-702.
Read More…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.
Read More…
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