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.

MSBA Appellate Practice Skills Program: July 18, 20 & 21

The MSBA, joined by the editors of the Appellate Practice for the Maryland Lawyer: State and Federal (Paul Mark Sandler, Andrew D. Levy, and Steven M. Klepper), judges of the Court of Appeals and Court of Special Appeals, practitioners, and representatives from the Office of the Public Defender and Office of the Attorney General, are introducing a comprehensive appellate practice skills workshop. The three-day virtual event will run on Monday July 18, Wednesday, July 20 and Thursday July 21. For a full agenda, list of presenters and registration information, click here.

June 2022 Maryland Certiorari Grants

The Maryland Court of Appeals on Friday granted review in three cases.

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Ocean City Panels on SCOTUS and Election Law

By Steve Klepper (Twitter: @MDAppeal)

If you’re attending the MSBA Annual Summit this week in Ocean City, we hope you’ll stop by two panels sponsored or co-sponsored by the MSBA Section of Litigation’s Appellate Practice Committee

Thursday, June 2, at 11:30 a.m.
Redistricting 2022: Latest Developments on Election Litigation and Legislation

(co-sponsored with the Administrative Law Section)

Special thanks go out to John Grimm, who was instrumental in putting the program together, and to Judge Andrea Leahy, who had been scheduled to moderate but had to drop out. (I’ll be pinch hitting for her.)

Friday, June 3, at 9:45 a.m.
Supreme Court Term in Review

In case you hadn’t noticed, the Supreme Court has been in the news more than usual, and Mark and Jaime will be discussing the big cases and trends. I’ll have the pleasure of moderating what should be a lively panel, to say the least.

Issue Preservation – Concerned Citizens of Cloverly is a reminder to not let your best appellate issues be needles in trial haystacks

By Diane E. Feuerherd

The Court of Special Appeals’ recent decision in Concerned Citizens of Cloverly v. Montgomery County Planning Board, Case No. 620, Sept. Term 2021 (May 2, 2022)[i] provides a helpful example, if not cautionary tale, of issue preservation. It is well-known that Maryland Rule 8-131(a) lays out the scope of appellate review and provides that other than jurisdiction, “the appellate court will not decide any other issue not raised in or decided by the trial court . . . .” (emphasis added). But what does “raised in” mean and how much airtime do you need to give an issue in the trial court (or in the case of Concerned Citizens, the administrative agency) for it to be “raised” and preserved for appellate review?   

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May 2022 Maryland Certiorari Grants

On Friday, the Court of Appeals granted cert in these four cases:

Ernest and Maryann Elsberry v. Stanley Martin Companies, LLC  – Case No. 6, September Term, 2022 (Unreported CSA Opinion by Zarnoch, J.)

Issues – Real Property – 1) May a court rely on legislative history unrelated to the specific statutory text at issue to override the consumer protections granted in the plain language and tabulation of Md. Code § 14-117(a)(3) of the Real Property (“RP”) Article, an unambiguous remedial statute? 2) Did CSA violate Article III, Section 29 of the Maryland Constitution by using the title of the bill “Prince George’s County – Deferred Water and Sewer Charges Homeowner Disclosure Act of 2014” to contradict the plain language of RP § 14-117(a)(3)(ii)?

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When Unstoppable Allegations of Fraud Meet an Immovable Arbitration Clause, which will give first?

By Meaghan C. Murphy, Guest Contributor

In January, the Court of Special Appeals reported a case where an arbitration clause was held to be moot because of allegations of fraud and misrepresentation to the court in order to approve transfers of structured in exchange for a discounted lump sum cash payment. The class of people who transferred their structured settlements sued Access Funding LLC and its associated entities, asserting claims of negligence, misrepresentation, fraud, and conspiracy. See Chrystal Linton, et al. v. Access Funding LLC, et al., 253 Md. App. 507 (2022) (“Linton 2”). This was the second time these parties had appeared before the Court of Special Appeals. See Linton v. Consumer Protection Division, 467 Md. 502, 521-22 (2020) (“Linton 1”).

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April 2022 Maryland Certiorari Grants

Yesterday, the Court of Appeals of Maryland granted certiorari in four cases.

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MSBA Panel Reviews Recent Notable Maryland Appellate Decisions

By Derek Stikeleather

On April 13, the MSBA’s Appellate Section hosted its annual program on recent notable Maryland appellate decisions. I was pleased to moderate (via Zoom) three panelists: Judge Gary Bair (retired), Carrie Williams of the OAG’s Criminal Appeals Division, and Kamil Ismail. The panel discussed six recent decisions:

Leidig v. State, 475 Md. 181 (2021): The Leidig opinion held that Article 21 of the Maryland constitution provides even broader protection than the Confrontation Clause of the Sixth Amendment. It held that a criminal defendant whose DNA was taken from blood spilled at a crime scene had the right to confront the author of the DNA report that identified him. Applying the fractured opinions from the Supreme Court’s 2012 Williams v. Illinois decision, Judge Biran and Judge Watts discussed conflicting styles of Confrontation Clause analysis including DNA analysis that was “nonaccusatory” and analysis marked by “formality and solemnity.” Noting the strong influence of retired Judge Eldridge in Maryland’s Sixth Amendment jurisprudence as well as the recent arrival of four new judges on the Court of Appeals, Judge Bair explained that Article 21 renders a DNA report “testimonial” if the report’s author would reasonably understand that the report’s primary purpose would be to establish facts potentially relevant to future prosecutions.

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Governor Appoints Matthew J. Fader as New Chief of the Court of Appeals

Today, the day after Chief Judge Joseph Getty‘s 70th birthday and formal retirement from the State’s highest court, Governor Larry Hogan appointed Judge Matthew J. Fader to succeed him, as the next Chief Judge of the Court of Appeals. In the same press release, quoted in full below, the Governor also officially designated Judge E. Gregory Wells as Chief Judge of the Court of Special Appeals:

Governor Larry Hogan today swore in Judge Matthew J. Fader as Chief Judge for the Court of Appeals, and officially designated Judge E. Gregory Wells as Chief Judge for the Court of Special Appeals.

“I am proud to designate Judge Fader and Judge Wells to preside over the state’s highest courts,” said Governor Hogan. “They are both highly respected and experienced jurists who serve with distinction and an unwavering dedication to the law.”

In total, the governor has made 163 judicial appointments during his tenure. He has focused on ensuring that the composition of the courts better reflects the diversity of the state. Earlier this week, he swore in Judge Angela M. Eaves as the first Hispanic to serve on the Court of Appeals. Today, Judge Wells became the first African American to serve as chief judge of the Court of Special Appeals, and the first openly LGBTQ person to serve as chief judge of either of Maryland’s appellate courts.

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