Rochkind: The COA Clarifies Maryland’s Hybrid Daubert/Frye Legal Framework Governing Admissibility Of Expert Testimony.
In Rochkind v. Stevenson, 454 Md. 277 (2017) the COA took a close look at the third prong of Rule 5-702, which requires that an expert’s opinion be based on a sufficient factual basis. Rochkind is one in a series of recent cases in which the COA must examine Maryland’s hybrid legal framework under Rule 5-702 and Frye/Reed governing the admissibility of expert opinion testimony and scientific evidence. Other recently decided or pending cases involve the admissibility of GPS records, the accuracy of cell phone call detail records, and the opinion of a neuropsychologist regarding the psychological profile of a criminal defendant.
Although Maryland ostensibly follows the Frye doctrine governing the admissibility of scientific evidence, which requires a court to determine whether the scientific principles underlying an expert’s conclusions are generally accepted as reliable in the relevant scientific community, the third prong of Rule 5-702 (sufficient factual basis) has been interpreted to require a trial judge to directly answer the question of reliability using the principles articulated by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). This hybrid Daubert/Frye framework has resulted in confusion in Maryland’s trial courts concerning its application to expert testimony in criminal and civil cases.
Rochkind is a lead paint case, in which the landlord challenged on appeal the ruling of the trial court admitting a pediatrician’s diagnosis that plaintiff Stevenson’s lead paint exposure caused his ADHD. The COSA had affirmed the judgment of the trial court admitting the testimony of the expert pediatrician and the COA granted discretionary review. The COA reversed the decision of the intermediate appellate court and remanded for a new trial on the issue of damages. The COA held:
In sum, the trial court failed to determine whether Stevenson’s proffered sources logically supported Dr. Hall-Carrington’s opinion that lead exposure can cause ADHD. In other words, it failed to check for an “analytical gap” between the expert’s data and her conclusion. Because we find that the trial court clearly erred in this respect, we hold that it abused its discretion in admitting the expert testimony.
Rochkind. To be sure, decisions applying Rule 5-702 to differential diagnosis and the appropriate use of epidemiological studies often involve a unique application of general principles governing the admission of expert testimony. Nevertheless, Rochkind’s holding—that the third prong of Rule 5-702 requires a Daubert analysis—is generally applicable to all criminal and civil cases.
The COA forcefully rejected the view that the “sufficient factual basis” standard would be met when an expert’s conclusion seemed reasonable or plausible. Further, that the third prong of Rule 5-702 requires the proponent of expert testimony to demonstrate that its expert used both a reliable method to collect data and a reliable method to interpret it.
We have interpreted the third prong of this analysis—sufficient factual basis—to include two subfactors: an adequate supply of data and a reliable methodology. Roy v. Dackman, 445 Md. 23, 42–43, 124 A.3d 169 (2015) (citation omitted); see also Exxon Mobil Corp. v. Ford, 433 Md. 426, 478, 71 A.3d 105 (2013). To constitute “more than mere speculation or conjecture,” the expert’s opinion must be based on facts sufficient to “indicate the use of reliable principles and methodology in support of the expert’s conclusions.” Ford, 433 Md. at 478, 71 A.3d 105 (citation and internal quotation marks omitted). To demonstrate a sufficient factual basis, an expert must establish that her testimony is supported by both subfactors.
Rochkind. Significantly, Rochkind emphasizes that (1) “all” expert testimony must satisfy 5-702 (Daubert); and (2) “new/novel” expert testimony must also satisfy the general acceptance standard under Frye/Reed. Rochkind therefore clarifies that trial courts must undertake an initial Daubert analysis of proposed expert testimony under Rule 5-702. Prior decisions had suggested a hybrid-Frye approach for new/novel or discredited scientific evidence that would only consider “reliability” (as informed by Daubert) as one factor when assessing the scientific community’s general acceptance of the principles at issue.
Rochkind means that a trial court must apply Daubert when deciding the admissibility of proposed expert testimony to identify any potential “analytical gap.” The COA made clear that a “gap” may exist, i.e., an insufficient factual basis, even when the expert’s conclusion is reasonable or plausible:
The jump from attention deficits and hyperactivity to a clinical ADHD diagnosis may seem reasonable, but we have explained that “just because a conclusion is reasonable does not mean that a court must permit an expert to make it.” Ross, 430 Md. at 664, 63 A.3d 1. Because of the added weight a jury might give to testimony from a designated expert, the trial court “ought to insist that a proffered expert bring to the jury more than the lawyers can offer in argument.” Id. (citation omitted). In equating attention deficits and hyperactivity with a clinical ADHD diagnosis, Dr. Hall-Carrington painted an inaccurate picture of the scientific research regarding lead poisoning—she overstated the known effects of lead exposure. Her testimony suffers from the same “analytical gap” described in Joiner.
Rochkind. The extent of the “gap” between attention decrements, impulsivity, and hyperactivity in children generally accepted as being caused by lead exposure, and a pediatrician’s expert diagnosis that plaintiff Stevenson’s ADHD was caused in significant part by her exposure to lead, strongly suggests that future trial courts, when applying the mandate of Rochkind, may find analytical gaps in a wide-range of expert opinions.
Contact RaquinMercer to consult with Steve Mercer and Isabelle Raquin about “analytical gap” and other admissibility issues involving DNA/forensic science evidence in your case.