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Maryland Adopts 30-Year Old Federal Expert Evidence Standard

Aug. 31, 2020, 6:03 PM

Maryland narrowly adopted a federal standard to determine when a jury can hear expert testimony based on scientific evidence, set by the U.S. Supreme Court nearly 30 years ago, the state’s top court said.

The state joins the “supermajority” of states that have adopted the test set out in Daubert v. Merrell Dow Pharmaceuticals Inc., which requires federal courts to consider a list of flexible factors when determining the admissibility of scientific evidence under the Federal Rules of Evidence, the Maryland Court of Appeals said Aug. 28 in a 4-3 opinion.

The ruling will affect a variety of civil and criminal cases in which scientific or technical issues arise, including product liability and medical malpractice cases.

The Daubert test replaced a standard that required courts to judge if an expert witness’s opinion on a scientific principle was generally accepted in the particular field to which it belonged.

The old standard fell into disfavor because generally accepted principles sometimes were based on bad science, the Maryland appeals court said.The general acceptance test also turned out not to be “a good gatekeeper” for some scientific fields, like epidemiology and psychology, it said.

Daubert‘s standard, on the other, requires courts to consider general acceptance as one factor, along with others such as whether the expert’s theory can be or has been tested or peer reviewed, whether there are standards or controls that apply, and whether the expert adequately accounted for alternative explanations, the court said.

This was the latest appeal in a lawsuit filed in 2011 by Starlena Stevenson, who allegedly was exposed to high levels of lead at the residence where she lived with her mother as a baby.

Stevenson’s evidence included an expert witness’s testimony that lead exposure caused her attention deficit hyperactivity disorder. The trial court admitted the testimony over the property owner’s objection.

Four trials were held in all. The last resulted in a jury verdict for Stevenson of $1 million in economic damages and $2 million in non-economic damages.

The appeals court reversed the judgment and sent the case back to the trial court to determine if the expert’s testimony was admissible under the Daubert standard.

Judge Joseph M. Getty wrote the opinion. Judges Robert M. MacDonald, and Brynja M. Booth, and Jonathan Biran joined.

Judge Shirley M. Watts dissented, joined by Judge Michele D. Hotten and Senior Judge Clayton Greene Jr., sitting by designation.

The case is Rochkind v. Stevenson, 2020 BL 328252, Md., No. 47 September Term 2019, 8/28/20.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com