Search results for daubert and stikeleather

Weighing Controlling and Persuasive Daubert Authorities for Maryland State Courts

By Derek Stikeleather

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?

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“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?

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The Future of Daubert in Maryland

By Derek Stikeleather

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.

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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.

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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.

By Derek Stikeleather

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.

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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.

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Did the Frankel Decision Create an Expert Affidavit Requirement for Rule 5-702 Motions?

By Derek Stikeleather

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.

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Federal Judicial Conference Unanimously Approves Proposed Rule 702 Amendments

By Derek Stikeleather

Daubert’s evolution passed a major milestone last week, one that should affect the admissibility of expert testimony in Maryland’s state and federal trial courts going forward. On June 7, the Judicial Conference Committee on Rules of Practice and Procedure unanimously approved the proposed amendments to Federal Rule of Evidence 702. Of course, Maryland state courts follow Md. Rule 5-702. But the Court of Appeals of Maryland, in 2020, formally adopted the Daubert standard, which applies FRE 702, for construing Rule 5-702. Rochkind v. Stevenson, 471 Md. 1 (2020). This leaves no room to interpret the state rule for admitting expert testimony any differently than the federal rule.

If approved by Congress (after review by the Judicial Conference and U.S. Supreme Court), the amended Rule will become effective on December 1, 2023. It states:

Rule 702. Testimony by expert witnesses.

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent has demonstrated by a preponderance of the evidence that:

a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

b) the testimony is based on sufficient facts or data;

c) the testimony is the product of reliable principles and methods; and

d) the expert has reliably applied the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

The new clause requiring each of Rule 702’s four reliability factors to be “demonstrated by a preponderance of the evidence” is not a substantive change but rather a point of emphasis. It directly targets the recurring error of judges who construe challenges to the sufficiency of the expert’s facts or data or the reliability of the expert’s case-specific application of principles and methods as jury questions that merely “go to the weight of the evidence.” Under the rule, this has always been a threshold question for the judge to decide as gatekeeper. Except judges have too often approached their gatekeeping role with excessive leniency. (Of course, other judges could be far too strict as gatekeepers under Rule 702, but the rules committee has not identified this as a problem.)

Last year, the Fourth Circuit Court of Appeals handed down a precedential opinion applying the proposed revised text and emphasizing that trial judges must ensure that each element of Rule 702 is met by a preponderance of the evidence. See Sardis v. Overhead Door Corp., 10 F.4th 268 (4th Cir. 2021). The Sardis opinion cautions trial judges that, under Daubert and Rule 702, they cannot delegate to jurors the judicial inquiry into whether Rule 702’s subsections (a) through (d) are all satisfied.

Going forward, challenges to an expert’s testimony should “go to the weight of the evidence” and not admissibility only after the trial judge has found that the testimony is probably “based on sufficient facts or data,” probably “the product of reliable principles and methods,” and probably “a reliable application of the principles and methods to the facts of the case.” Well-credentialed experts cannot bypass judicial scrutiny by merely characterizing their facts and data as sufficient and their methodology as reliable. The proponent of the expert testimony remains bound to show the trial judge that their testimony is likely to be reliable and helpful to the jury.

Update: The End of Frye-Reed Draws Closer

By Derek Stikeleather

In my lengthy October 2017 post, The End of Frye-Reed, I traced the history of Maryland’s Frye-Reed jurisprudence on expert testimony and explained my view that Frye-Reed is now “on its last legs.” A recent published Court of Special Appeals opinion, Sissoko v. State,[1] suggests that Frye-Reed’s death has drawn even closer. It notes Maryland’s “drift” towards applying Frye-Reed to scientific conclusions, rather than only techniques, and treats the Frye-Reed and Rule 5-702 inquiries as tests that not only “overlap” but perhaps have even “melded into one.”[2] In doing so, the opinion elevates, from well-considered dicta to controlling Maryland law, many points in the concurring opinion in the Court of Appeals’ August 2017 decision Savage v. State.[3]

The analysis in my original post ended with Savage v. State, which is proving itself to be a landmark opinion. Read More…

The End of Frye-Reed

By Derek Stikeleather

Maryland’s Frye-Reed era appears to be ending. Last month, in Savage v. State,[1] the Court of Appeals handed down a significant decision on “the proper scope for the threshold evaluation of expert scientific evidence” under Maryland’s “Frye–Reed” test. Although the Frye-Reed test, as originally envisioned, would preclude only opinions based on novel scientific methodologies that were not “generally accepted as reliable within the expert’s particular scientific field,”[2] its scope has greatly expanded in recent decades. The Savage opinion highlights that Frye-Reed now precludes opinions, even those based on methodologies that are both (1) not novel and (2) generally accepted, if the reasoning behind the opinion is simply unreliable. Under Savage, the Frye-Reed inquiry requires trial judges—regardless of whether the expert’s underlying methodology is well-established and valid—to examine “whether the expert bridged the ‘analytical gap’ between accepted science and his ultimate conclusion in a particular case.”

How did we get here and where are we headed? Read More…