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Pre-Trial Hearing Requirements For Frye-Reed Challenge

August 4, 2020

Maryland’s second highest court recently held that a trial court did not commit reversible error by failing to hold a pre-trial hearing to determine the admissibility of the plaintiff’s expert testimony.  In Burks v. Allen, a patient developed necrosis of the colon after being administered a medication.  In a subsequent medical malpractice action, it was alleged that the treating physician was negligent in administering the medication.  The defendant doctor filed a motion requesting a Frye-Reed hearing to determine if there was a sufficient foundation to support plaintiff’s expert’s opinion that the medication caused the injury claimed.  (The Frye-Reed test applies to the admissibility of expert opinion in Maryland.)  The court, however, never scheduled a Frye-Reed hearing.  On the morning of trial, the court, after considering documents submitted in connection with the physician’s motion, ruled that the plaintiff’s expert’s testimony did satisfy the Frye-Reed standard.  On appeal, Maryland’s second highest court ruled that although it is preferable for a Frye-Reed hearing to be scheduled prior to trial, there was no harm to the treating physician by failing to hold such a hearing under the facts of the case in question.