In 1978, the Maryland Court of Appeals (Maryland’s highest court) decided Reed v. State. That decision adopted the Frye standard as Maryland’s approach to determining the admissibility of expert testimony. The issue before the Maryland Court of Appeals in the recent case of Rochkind v. Stevenson was whether to abandon the Frye-Reed standard in favor of the Daubert standard.
Frye Versus Daubert
The “Frye standard” is the shorthand used to describe the holding of Frye v. United States, a 1923 decision of the Court of Appeals for the D.C. Circuit. The court in Frye decided that helpful expert testimony should be admitted into evidence if it is based on principles that are generally accepted by other experts in the same field.
In the years following the Frye decision, critics pointed out that the Frye standard only allows the admission of opinions that are rooted in the past. Opinions based on new or novel theories that have not yet gained general acceptance might be excluded from evidence despite their validity. Despite its shortcomings, the Frye standard was adopted by most courts in the years that followed.
In 1992, the U.S. Supreme Court decided that the federal rules of evidence created a new standard. Again named after the case that created it, the Daubert standard opens the door to expert opinions that are grounded in reasonable methodologies even if those methodologies have not yet gained general acceptance.
The Daubert standard has also been criticized. Much of the criticism stems from the inconsistent roles that federal judges play as gatekeepers when they decide whether expert opinions are admissible. Some judges view Daubert as broadening the admissibility of evidence. In their view, if a jury could view the expert’s methodology as reasonable, even if new or novel, the jury should decide whether the expert’s opinion should be credited.
Other judges view the Daubert standard as protecting juries from questionable expert opinions that, in the judge’s view, are based on unsound methodologies. Those judges tend to view themselves as more capable than jurors of deciding whether an expert opinion is consistent with valid principles of science.
Some scholars conclude that whether a court uses Frye or Daubert has little impact on the ultimate decision whether to admit expert testimony. In any event, there is little doubt that adopting Daubert comes with a price. Challenges to admissibility under Daubert often trigger evidentiary hearings that delay trials and increase the cost of litigation. On the other hand, courts that once routinely admitted expert evidence in criminal cases that was based on generally accepted but unsound methodologies may be less receptive to flawed science when they use the Daubert standard.
Facts of the Case
Against that background, the Maryland Court of Appeals has repeatedly been asked to join the trend of replacing Frye with Daubert. It finally did so in the Rochkind decision.
More than two decades ago, Charlena Montgomery moved into a home with her 10-month old daughter, Starlena Stevenson. She rented the home from Rochkind.
Starlena lived in that property for 15 months. Paint was chipping from the walls. Tests revealed that Starlena had an elevated level of lead in her blood. She had a lower level of lead in her blood two months after moving out of the property. Testing at Rochkind’s property revealed the presence of lead-based paint on multiple surfaces.
Starlena suffered from learning disabilities and psychological disorders since childhood. At the age of 20, she sued Rochkind, alleging that her difficulties were caused by the ingestion of lead-based paint chips. The evidence convinced multiple juries that Rochkind was negligent in failing to remove flaking lead-based paint from the walls before leasing the property to tenants.
Starlena relied on the expert opinion of Cecilia Hall-Carrington, a pediatrician. Dr. Hall-Carrington prepared a report concluding that Ms. Stevenson was poisoned by lead and that her lead poisoning was a significant contributing factor to her neuropsychological problems.
The trial court rejected a motion to exclude Dr. Hall-Carrington’s testimony that the lead Starlena ingested came from Rochkind’s property. The court ruled that her opinion was based on reliable sources of information and was therefore admissible under Maryland law.
The court also rejected a motion to exclude opinion testimony that lead consumption caused Starlena’s behavioral problems. The court ruled that Dr. Hall-Carrington’s opinions were admissible because they were based on generally accepted science regarding the relationship between lead and neuropsychological impairments.
The case went to trial. Dr. Hall-Carrington testified about studies that, in her view, linked lead consumption to Attention Deficit Hyperactivity Disorder (ADHD). Since ADHD was Starlena’s primary diagnosis as a child, Dr. Hall-Carrington opined that the lead consumption caused that condition. She also noted that Starlena was treated with Adderall, which studies link to depression and hallucinations. Dr. Hall-Carrington testified that treatment of her ADHD with Adderall was the underlying cause of Starlena’s depression and delusional behavior.
Starlena prevailed and was awarded more than $1 million in damages. The court ordered a new trial on damages. After a second trial, Starlena was again awarded more than $1 million. That verdict was reversed on appeal because Dr. Hall-Carrington did not adequately explain why she concluded that an Environmental Protection Agency study supported her belief that lead consumption causes ADHD.
Prior to the third trial, the judge ruled that Dr. Hall-Carrington could give essentially the same testimony but could not mention the term “ADHD.” The court declared a mistrial when the doctor uttered the forbidden phrase. During the fourth trial, Dr. Hall-Carrington did not use the terms “ADHD” but linked Starlena’s attention deficit, hyperactivity, and impulsivity to the consumption of lead. This time the jury awarded $3 million. Rochkind again appealed.
The court of appeals concluded that the Frye-Reed standard “holds a confusing grip on Maryland bench and bar.” The court notably avoided blaming itself for causing the confusion. Nor did the court explain why Daubert is any less confusing. Given the varying interpretations of Daubert, one could argue that judicial disagreement about how to apply a standard for admitting expert testimony causes more confusion than the standard itself.
The court noted that Maryland law has drifted in the direction of Daubert, adding language from Daubert and its progeny to the state’s Frye-Reed standard. Maryland courts, for example, began to exclude opinions when the expert could not close the “analytical gap” between the data that the expert relied upon and the conclusion that the expert drew.
Maryland also loosened the Frye-Reed standard to permit evidence based on novel scientific processes that had not been generally accepted if the processes were based on generally accepted principles of science. Conversely, Maryland courts concluded that general acceptance of scientific processes (such as comparative bullet lead analysis) was insufficient to support admissibility if there was no general acceptance of the scientific principles upon which the processes were founded.
In addition to nudging the Frye-Reed standard in the direction of Daubert, Maryland courts decided that the state evidence code, which required expert opinions to be based on sufficient facts, also required opinions to be based on a reliable methodology. Daubert makes reasonably clear that facts and methodology are two distinct elements that underlie expert opinions. Maryland courts took an aggressive step in the direction of Daubert by interpreting “sufficient facts” to mean “sufficient facts plus a reliable methodology.”
The court decided that the time had come to jettison its drifting precedent and to adopt Daubert outright. It therefore remanded Starlena’s case for yet another trial, but only if the court determined that Dr. Hall-Carrington’s testimony satisfied the Daubert standard.
Three judges dissented. They did not believe that this was the right case in which to “pick a side” between Frye-Reed and Daubert. They noted that Rochkind appealed after the second trial, that the trial court relied on the Frye-Reed standard on remand, and that Starlena again prevailed. Her case has gone to verdict three times. According to the dissent, changing the standard of expert witness admissibility in a case that has been appealed once before, after the trial judge applied the standard dictated by the appellate court, “would undermine the finality and predictability of the court system.” Fairness to Starlena, however, did not seem to be uppermost in the mind of the court’s majority.
The dissent also pointed to studies demonstrating that application of the Daubert standard “disproportionately and negatively affects claimants of color.” The dissent concluded that the discriminatory impact of Daubert should be studied and that any change in the admissibility of expert opinions should be adopted by rule with prospective application, after placing litigants on notice of the rule that will apply in their case.
Finally, the dissent noted that the trial court concluded that Dr. Hall-Carrington based her opinion on sufficient data and a reliable methodology. Dr. Hall-Carrington relied on a variety of records to support her conclusion that Starlena suffered from attention deficit problems, hyperactivity, and impulsivity. She also relied on research showing a causal link between lead exposure and cognitive deficits as well as disorders relating to attention, impulsivity, and hyperactivity.
It is unclear how the outcome would be any different using a Daubert analysis. The trial judge generally made findings that are required by Daubert and may well decide to admit Dr. Hall-Carrington’s testimony again. If so, there will be a fourth trial and, unless the jury differs from the first three juries to consider the evidence, Starlena will likely prevail again.