That's how Maryland's highest court chose to characterize its gradual move from Frye to Daubert - a drifting process. Like the way the ocean drifts ashore as the tide is rising. Creeping a little higher, each wave covering and absorbing a little more of the beach. As it slowly inches toward your chair where you're trying to finish the latest Erin Hildebrand summer must read. Maybe it picks up a few new shells along the way, but it takes its sweet time reaching its crest. Or, maybe we're just lamenting the end of summer. Either way, we are happy to report that Maryland's slow drift finally ended - it adopted Daubert.
In Rockhind v. Stevenson, 2020 WL 5085877 (Md. Ct. App.), Maryland's highest court, in a 4-3 decision, acknowledged that it was now joining the "supermajority" of states to adopt the federal Daubert standard. Id. at *2. So, where does that leave us in the tally? By our count, 42 states (including the District of Columbia) have adopted Daubert. Five states come close: Sargon Enterprises, Inc. v. University of Southern California, 55 Cal. 4th 747 (2012) (declined to explicitly adopt Daubert, but recognized the role of judges as gatekeepers and their ability to step outside the Frye standard); In re Accutane Litig., 191 A.3d 560 (N.J. 2018) (stopped short of adopting Daubert, but did adopt key factors recognized in Daubert); Higgs v. State, 222 P.3d 648, (Nev. 2010) (Daubert's flexible approach is persuasive); State v. Hernandez, 707 N.W. 2d 449 (N.D. 2005) (Daubert not explicitly adopted, expert admissibility governed by North Dakota Rule of Evidence 702 which is similar to the federal rule); Va. Code Ann. 8.01-401 (admissibility of expert testimony subject to basic requirements, including requirement that evidence be based on adequate foundation).
That leaves only 4 remaining Frye "general acceptance" states - Illinois, New York, Pennsylvania, and Washington. Four states holding on to a standard for the admissibility of expert testimony that is nearly a century old. A standard that was announced five years before the invention of the now virtually obsolete iron lung; 13 years before the development of the first hand-cranked pacemaker. Decades before anyone ever dreamed of things like a cochlear prosthesis, an insulin pump, an artificial heart, a bionic limb. It's unlikely that anyone in 1923 could have foreseen the explosion in the development of pharmaceuticals. At that time insulin was brand new and penicillin was still 5 years down the road. Heck, Daubert is already 27 years old. And while the flying cars predicted by Hanna-Barbera (The Jetsons) and Robert Zemeckis (Back to the Future) aren't reality yet, drones and self-driving cars (sort of) are. So why cling to an outdated standard?
That was the question posed to the Maryland Court of Appeals in Rockhind. Rockhind is not a drug or device case. Plaintiff sued her former landlord alleging that her exposure to lead paint as an infant led to the development of learning disabilities, ADHD, and other psychological disorders. Rockhind, 2020 WL 5085877 at *2. For various reasons, mostly related to the testimony of plaintiff's causation expert, the case went to trial four times. Before each trial, defendant moved to exclude plaintiff's expert and asked for a Frye hearing. The hearing requests all were denied. In between trial two and three, the Court of Appeals ruled that plaintiff's expert "did not provide a sufficient factual foundation for . . . her conclusion that lead exposure can cause ADHD." Id. at *3. The trial court, interpreting the appellate decision narrowly, allowed plaintiff's expert to testify that the lead exposure caused plaintiff's "attentional deficits, hyperactivity, and impulsivity problems" - all elements of ADHD - as long as she never uttered "ADHD" directly. Id. at *4. A jury verdict for plaintiff led to this appeal which raised questions regarding whether the trial court erred in allowing certain expert testimony, including specific causation opinions based on general epidemiological studies. But the court first had to decide whether it should adopt Daubert,
The court had a lot of ground to cover.
In the forty years that followed Reed [Maryland's adoption of Frye], Maryland experienced a jurisprudential drift: The Frye-Reed standard announced in 1978 slowly morphed into a "Frye-Reed Plus" standard, implicitly and explicitly relying and adopting several Daubert principles.
Id. at *2. Because of this slow drift, picking up pieces of Daubert like shells on a beach, the court acknowledge that the Frye-Reed standard had "a confusing grip on Maryland bench and bar." Id. at *5. So, the question of whether to take the final step was certainly ripe for consideration. The first drift was when Maryland started using Frye to assess scientific conclusions, instead of only scientific methods. Id. at *7. If an expert was following "generally accepted medical principles" to reach a novel conclusion, that opinion required a Frye hearing. Id. This was an acknowledgment of the need to mind the "analytical gap" addressed by the Supreme Court in General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997). Another step toward Daubert. The second drift came when Maryland started applying Frye to any scientific principle - new or old. Rockhind at *8. In other words, the judge's gatekeeping function includes keeping out "old junk science" too. Id. Thus, leading the court to conclude that "[t]he evolution of [Maryland's] Frye-Reed doctrine to both maintain the general acceptance test and include a check for an analytical gap has muddied our approach to expert testimony." Id. at *10.
The court decided it was time to stop drifting and un-muddy the waters:
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. This becomes especially important in modern society, which routinely confronts emerging technologies that challenge the efficacy of Frye. Frye centered on whether scientific principles or discoveries were generally accepted in a relevant scientific community. Yet, using acceptance as the only measure of reliability presents a conundrum: a generally accepted methodology may produce "bad science" and be admitted, while a methodology not yet accepted may be excluded, even if it produces "good science."
Id. at *14 (citing Motorola Inc. v. Murray, 147 A.3d 751, 756 (D.C. 2016) (covered here on the blog). Because the trial court did not have the court's reasoning when it considered the admissibility of plaintiff's expert's testimony, the case was remanded to address the issue using the Daubert standard, with some offered words of guidance on how it should do that. Those words seemed to include an invitation to trial courts generally to revisit the admissibility of expert evidence that previously had passed the Frye test. "The shift to Daubert may mean, in a very real sense, that 'everything old is new again' with respect to some scientific and technical evidentiary matters long considered settled." Id. at *18.
Maryland considered itself delayed in finally adopting Daubert and with only four states clinging to the outdated, and simultaneously unduly restrictive and unduly permissive general acceptance standard - it's time to call Frye what it is, an iron lung. It had its day, but science has evolved and so too must the law. Advances in technology and medicine are not slowing down. And while the law shouldn't get out in front of medicine, it has to at least have the ability to keep pace.
This article is presented for informational purposes only and is not intended to constitute legal advice.
