Md. high court adopts new standard for scientific testimony

A divided Maryland high court has opened trials to a broader range of science-based testimony than that which is “generally accepted” among scientists, ruling that judges may admit into evidence scientific conclusions based on emerging theories that have been peer reviewed and published but have not yet gained wide acceptance.

In its 4-3 decision Friday, the Court of Appeals abandoned its long-held “general acceptance” standard for admitting scientific testimony in favor of a “reliability” standard annunciated by the U.S. Supreme Court in 1993 and adopted by about 40 states in the past 27 years.

The Court of Appeals’ decision expounds on the judge’s role as “gatekeeper” of which scientific evidence may be admitted at trial, enabling jurors to weigh valid scientific conclusions while preventing untested “junk science” from being brought before them.

The widely accepted – and now Maryland-adopted — standard is called Daubert, after the Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals Inc. The former general acceptance standard was known as Frye-Reed, after a 1923 U.S. appeals court decision, Frye v. United States, and the Court of Appeals’ 1978 ruling in Reed v. State.

“The time has now come to plot a new course, overruling our Frye-Reed jurisprudence and finding Daubert factors persuasive, with regard to the analysis of expert testimony,” Judge Joseph M. Getty wrote for the Court of Appeals’ majority.

“The impetus behind our decision to adopt Daubert is our desire to refine the analytical focus when a court is faced with admitting or excluding expert testimony,” Getty added. “This becomes especially important in modern society, which routinely confronts emerging technologies that challenge the efficacy of Frye.”

Before admitting emerging scientific evidence that has not yet been generally accepted, Daubert instructs judges to weigh many factors such as whether the science has been peer reviewed and published, whether it was developed prior to and not for the litigation, whether it has been or can be tested, whether the conclusion flows from the premise and whether the scientist has accounted for alternative explanations, the Court of Appeals said.

The high court added its decision instructing judges to apply Daubert governs all cases that were pending or on appeal as of Friday and which concern the standard to be applied for the admission of scientific testimony.

Civil defense attorney Joshua F. Kahn on Tuesday hailed what he called “a really important decision” for civil litigators regardless of whether they represent the plaintiff or defendant.

In adopting the Daubert standard, the Court of Appeals has recognized that what had been viewed as generally accepted scientific facts can be questioned or even debunked by emerging research aided by modern technology, said Kahn, of Miles & Stockbridge PC in Baltimore.

“Science is not static; science develops,” Kahn said. “The reliability of those (older) methodologies can be called into question.”

But attorney Brian S. Brown said Tuesday that Maryland’s shift to the Daubert standard could substantially add to the plaintiffs’ costs of litigating because their paid expert witnesses might be subjected to the trial judge’s broader pretrial screening of their planned testimony.

These costs of qualifying an expert, which can discourage an individual plaintiff, are more easily borne by the defendant companies or their insurers, said Brown, a plaintiffs’ attorney with Brown & Barron LLC in Baltimore.

Brown added he has heard from lawyers in jurisdictions more familiar with the Daubert standard that judges often apply the admissibility factors narrowly, very often resulting in scientific testimony being excluded rather than admitted.

“It (Daubert) has been turned on its head to be used as a weapon to exclude evidence instead of the more liberal standard it was designed to be to allow more evidence in,” Brown said.

Getty was joined in the decision by Judges Robert N. McDonald, Brynja M. Booth and Jonathan Biran.

In dissent, Judge Shirley M. Watts said the high court should have held to its Frye-Reed precedent last reaffirmed just three years ago in its Savage v. State decision.

“The only thing that has changed since the majority’s holding and Judge (Sally) Adkins’s concurrence in Savage is that there has been speculation in the legal community about a potential change from Frye-Reed to Daubert, and four member of the court are now in favor of the change,” Watts wrote.

“Clearly, neither of the circumstances that would warrant a departure from the doctrine of stare decisis – a prior decision is clearly wrong and contrary to established principles or existing precedent has been superseded by significant changes in the law or facts – applies here,” Watts added. “Since the majority’s holding in Savage, there has been no new case law from this court indicating that our majority holding was wrong and there have been no further developments in the law since Savage leading Maryland case law any closer to the adoption of the Daubert standard.”

Watts was joined in dissent by Judges Michele D. Hotten and Clayton Greene Jr., a retired jurist sitting by special assignment in place of Chief Judge Mary Ellen Barbera. Barbera did not publicly disclose the reason for her recusal.

The Court of Appeals rendered its decision in overturning a $1.35 million verdict for Starlena Stevenson who alleges she suffered brain damage from being exposed to lead paint as a child in Baltimore in the early 1990s. In ordering a new trial, the high court instructed the judge to make a pretrial determination of whether the scientific testimony of Stevenson’s expert witness on the alleged cause of the brain damage satisfies the newly adopted Daubert standard of reliability.

The Court of Appeals rendered its decision in an appeal brought by Stanley Rochkind, the owner of S&S Partnership, which owned the childhood home.

The case is Stanley Rochkind v. Starlena Stevenson, No. 47, September Term 2019.