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Maryland Abandoned the Frye-Reed Standard for Admissibility of Expert Testimony and Adopted the Daubert Standard.

September 25, 2020 By Matthew J. Gannett

Over 40 years ago, in the case of Reed v. State, Maryland adopted the general acceptance standard for admitting expert testimony rooted in novel scientific principles. 283 Md. 374 (1978). Under this standard, expert testimony rooted in novel scientific principles was admissible only if the basis of the opinion was generally accepted as reliable within the relevant
scientific community. This standard was commonly called the Frye-Reed standard. In the years that followed, and with the adoption of Maryland Rule 5-702, this standard morphed into a “Frye-Reed Plus” standard. Under the morphed standard, the trial court was tasked with determining whether the expert’s principles and methods were generally accepted and then assessing whether the expert’s testimony had an adequate supply of data and applied a reliable methodology.

In Rochkind v. Stevenson, the Court of Appeals of Maryland abandoned the Frye-Reed standard in favor of the Daubert standard for admissibility of expert testimony. Under the Daubert standard, an expert’s testimony is admissible only if it is sufficiently reliable. To assist the trial courts in assessing the reliability of expert testimony, the Court adopted ten non-
exhaustive factors:

  1. Tested/testable—whether the theory or technique can be (and has been) tested;
  2. Peer review—whether the theory or technique has been subjected to peer review and publication;
  3. Error rate—whether the technique has a known or potential rate of error;
  4. Controls—the existence and maintenance of standards and controls;
  5. General acceptance—whether a theory or technique is generally accepted;
  6. Independence—whether the experts are testifying related to research conducted independent of litigation, or whether they developed their opinions expressly for purposes of testifying;
  7. Analytical gap—whether the expert unjustifiably extrapolated from an accepted premise to an unfounded conclusion;
  8. Differential diagnoses—whether the expert has adequately accounted for obvious alternative explanations;
  9. Diligence—whether the expert is being as careful as he or she would be in his or her regular professional work outside of paid litigation consulting;
  10. Reliable field—whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.

The extent to which this change in jurisprudence will have a practical impact on the admissibility of expert testimony is widely debated and remains to be seen. The Court of Appeals was “[not] convinced that adopting this standard in Maryland will upend Maryland evidence law.” Regardless, the Rochkind opinion provides clear guidance as to what factors
litigants, attorneys, and experts, should consider in assessing the admissibility of expert testimony.