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Strengthening Md.’s expert evidence rule

schwartz-victor-col-sigMaryland’s highest court recently adopted a major change in law to prevent unreliable expert evidence — often called “junk science” — from entering the state’s courtrooms. The court deserves praise for jettisoning an antiquated standard governing the admission of expert scientific evidence, which was prone to abuse, in favor of a more rigorous standard applied in federal courts and most other states.

For the past half-century, Maryland had followed a version of the so-called “Frye rule” in determining the admissibility of expert evidence. This standard centers on whether scientific evidence is “generally accepted” in a relevant scientific community, which is an approach that may produce inconsistent results.

As Maryland’s high court recognized, the Frye rule can be over inclusive in allowing a jury to hear evidence of any “generally accepted” scientific principle or methodology, even if it produces unreliable science.  At the same time, the approach can be under inclusive in disallowing reliable scientific evidence that has not yet obtained general acceptance in the scientific community.

In 1993, the U.S. Supreme Court recognized these shortcomings of the Frye rule and replaced this standard with what is called the “Daubert rule” (named after the case in which the new standard was announced).  The Daubert rule refocused attention away from general acceptance of a given methodology to the reliability of the methodology used to reach a particular result.  In doing so, the Supreme Court instructed judges to act as “gatekeepers” for the admissibility of reliable scientific evidence.

Pursuant to the Daubert rule, which Maryland now follows, judges must make a threshold determination as to whether a proffered expert’s testimony is based on sufficient facts or data, is the product of reliable principles and methods, and that the expert has reliably applied the principles and methods to the facts of the case in a manner that will assist the jury or other factfinder.

Judges are to consider whether a theory or technique can be (or has been) tested or subjected to peer review, whether a particular scientific technique has a known or potential rate of error, and the existence and maintenance of standards and controls, among other factors.

Unreliable scientific evidence, such as fringe theories that an exposure to a product or substance caused a specific disease in spite of no scientific support, is no longer simply presented to a jury to decide.  This is an important change because layperson jurors may not fully appreciate how novel and unscientific the “expert” testimony actually is, which can mislead juries.

 A better standard

In adopting Daubert, Maryland’s high court also made clear that a judge’s gatekeeping role is not to determine whether a proposed expert is “right” or “wrong” in their testimony. Rather, the standard is whether the expert’s testimony is adequately grounded in reliable and sound science, and that there is not “too great an analytical gap” between the expert’s methodology and conclusions.

Further, Maryland’s high court recognized that the more demanding Daubert rule has worked well in the federal courts and “supermajority of states” that adopt it. Maryland’s delayed adoption of Daubert, the court explained, provides an “added benefit of hindsight” and a broad body of case law to draw upon that will give the state’s courts “a decided advantage when faced with emerging technologies [the court] cannot yet foresee.”

The court’s wisdom in adopting Daubert, and enlisting Maryland’s trial judges to serve as gatekeepers against unreliable expert evidence, will likely go unnoticed by most of the state’s residents, but it is a decision that will significantly improve fairness in Maryland’s civil justice system.

The court should be applauded for this decision, and the decision should serve as a guide for other state high courts looking to remove junk science from courtrooms.

Victor Schwartz is a former law professor and law school dean and current co-chair of the public policy group of the law firm Shook, Hardy & Bacon, L.L.P.