Court’s decision not to reconsider Daubert ruling draws pointed dissents

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Two Maryland high court judges have taken the unusual step of sharply criticizing their colleagues for declining to reconsider their decision last month that permits judges to admit into evidence scientific conclusions based on emerging theories that have been peer-reviewed and published but have not yet gained wide acceptance.

In a written dissent, Judge Shirley M. Watts said the Court of Appeals should not have allowed for a broader range of science-based testimony at trial without first having the new evidentiary standard studied by the Maryland Judiciary’s Standing Committee on Rules of Practice and Procedure.

That panel, which recommends evidentiary rule changes to the high court, could have evaluated the standard’s potential consequences on low-income litigants who might be unable to afford the pretrial costs of ensuring their expert witnesses’ testimony meets the new standard of admissibility, wrote Watts, who was joined in dissent by Judge Michele D. Hotten.

The Court of Appeals’ adoption of the “Daubert” standard of admissibility without the committee’s review belied Chief Judge Mary Ellen Barbera’s June 9 public “Statement on Equal Justice Under Law” in which the state’s top jurist called for an end to “persistent economic and racial disparities in Maryland’s justice system,” Watts wrote Friday.

“The decision by the majority to reject study of the implications of implementing Daubert when numerous sources … indicate that Daubert has had the  effect of precluding African American people, people of color, and people of limited financial means from access to the courts contradicts the chief judge’s pronouncement that the Maryland Judiciary would work to eliminate disparities in Maryland’s justice system and to further the goal of providing equal justice under the law for people of all races and ethnicities,” Watts wrote.

“The majority’s intransient (sic) position in adopting Daubert without study by the Rules Committee is not in keeping with the goal announced by the chief judge of assuring that the Maryland Judiciary is committed to providing equal justice under law for all, and the divergence warrants explanation by the majority or in the alternative that the majority’s opinion be vacated,” Watts added.

Losing parties’ motions for reconsideration are seldom granted at the high court as that requires at least half the judges who concurred in the majority opinion to vote to rehear the case. Winning parties need not even respond to a motion for reconsideration unless a response is specifically requested by a judge who concurred in the majority opinion.

Appellate attorney Steven M. Klepper called it very rare for dissents from denials of reconsideration to be noted by the high court much less be accompanied by a dissenting opinion.

“I am unaware of any prior instances” in which a dissent from a denial of a reconsideration motion was put in writing, said Klepper, who tracks Court of Appeals motions as editor in chief of the Maryland Appellate Blog.

Fellow appellate attorney, motions tracker and blog contributor Michael Wein agreed, calling written dissents to denials of reconsideration “extremely rare.”

Klepper and Wein noted that their research is limited to what the high court puts on its website and attorney databases. However, Klepper said it has been at least two years since the high court even noted a judge’s dissent from a motion for reconsideration.

The Court of Appeals, in its 4-3 decision last month, abandoned its long-held standard of permitting science based testimony that has been “generally accepted” among scientists in favor of the Daubert “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 expounded 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.

Hotten joined Watts’ dissent from the Court of Appeals’ decision in Stanley Rochkind v. Starlena Stevenson, No. 47, September Term 2019. Watts’ dissent was also joined by Judge Clayton Greene Jr., a retired jurist specially assigned to sit in for Barbera.

The chief judge did not publicly disclose the reason for her recusal from the case.

Greene did not participate in the high court’s decision on the motion for reconsideration.

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 in Rochkind.

“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.”

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

Watts stated in Rochkind that she was “respectfully” dissenting. However, her dissent from the denial of the reconsideration motion did not contain the word “respectfully.”

In both dissents, Watts called the high court’s departure from it Frye-Reed precedent “inappropriate” in that the court had expressly rejected a change to the Daubert standard as recently as three years ago in Savage v. State.

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

Scott E. Nevin, an attorney for Stevenson, said Tuesday that he filed the motion for reconsideration to correct “a manifest injustice against my client.”

The Court of Appeals’ 4-3 decision “ignored” precedent and Barbera’s call for a justice system fair to low-income and minority litigants, such as Stevenson.

“Was that just fluff? Was that just the right thing to say at the time,” said Nevin, with the Law Offices of Peter T. Nicholl in Baltimore. “We put a lot of effort into the motion to reconsider and for them to summarily deny is very disappointing.”

Nevin was joined in the motion by his co-counsel Suzanne C. Shapiro, of Suzanne C. Shapiro Law LLC in Baltimore.