In Rochkind v. Stevenson, 2020 WL 5085877 (Md. Aug. 28, 2020), the Maryland Court of Appeals (that is the state’s highest court), recently adopted the Daubert standard for assessing the reliability of proffered expert opinion evidence.  This is the test used in federal courts and most other states, but not all.  The court’s move away from the Frye test reflected a “jurisprudential drift” over the past 40 or so years towards more careful scrutiny of expert evidence in an effort to prevent unreliable science from entering into a trial. 471 Md. 1, 5, 236 A.3d 630, 633..

The case involved the claim that plaintiff’s Attention Deficit Hyperactivity Disorder (ADHD) had been caused by her childhood exposure to lead. She sued the landlord of the apartment where she had lived, and sought to rule out other risk factors, such as a family history of learning disabilities, through expert testimony. The landlord challenged the reliability of the proposed expert’s causation methodology and conclusions.

The court stated that 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. The Frye test 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, observed the court, 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.” See Motorola Inc. v. Murray, 147 A.3d 751, 756 (D.C. 2016). General acceptance remains an important consideration in the reliability analysis, but it cannot remain the sole consideration.   See  Libas, Ltd. v. United States, 193 F.3d 1361, 1368 (Fed. Cir. 1999) (“While ‘[w]idespread acceptance can be an important factor’ in an assessment of reliability … after Daubert and Kumho [Tire], the inquiry does not necessarily end there. The lesson of the Supreme Court’s rejection of ‘general acceptance’ as the sole standard for expert testimony, in favor of the Daubert–Kumho reliability standard is that ‘widespread use’ or ‘general acceptance’ is an  imperfect proxy for reliability.” (internal citation omitted)).
Daubert, by contrast, concluded the court, refocuses the attention away from acceptance of a given methodology—although that is not totally removed from the calculus—and centers on the reliability of the methodology used to reach a particular result. 471 Md. 1, 30–31, 236 A.3d 630, 647–48. “The ability to focus on the reliability of principles and methods, and their application, is a decided advantage that will lead to better decision-making by juries and trial judges alike.” Motorola, 147 A.3d at 757.
Applying Daubert factors to the interpretation of Md. Rule 5-702 and eliminating Frye provided a simpler, more straightforward analysis of expert testimony, said the court. There is no longer a need to distinguish new or novel techniques or determine if testimony embraces a “scientific technique.” Just as this process provides a flexible structure for trial courts, so too does it guide appellate courts reviewing the admission or exclusion of expert testimony. Instead of maintaining two separate, and potentially outcome determinative, standards of review—de novo for Frye and abuse of discretion for Rule 5-702—all expert testimony will be reviewed under the abuse of discretion standard.  471 Md. 1, 37, 236 A.3d 630, 651 (2020).
My colleague Victor Schwartz has some thoughts on the decision here.