Maryland Courts Continue to Provide Guidance on Newly-Adopted Daubert Standard

Maryland’s adoption of the Daubert standard in Rochkind v. Stevenson, 471 Md. 1 (2020) has led to an increasing number of challenges to the admissibility of expert witness testimony in recent years. With Rochkind, the Maryland Supreme Court (then called the Court of Appeals) adopted the five original non-exhaustive factors outlined by the Supreme Court to be used in determining whether an expert opinion is sufficiently reliable:

(1) whether a theory or technique can be (and has been) tested;

(2) whether a theory or technique has been subjected to peer review and publication;

(3) whether a particular scientific technique has a known or potential rate of error;

(4) the existence and maintenance of standards and controls; and

(5) whether a theory or technique is generally accepted.

The Maryland Supreme Court also added five additional factors, developed out of federal Daubert jurisprudence:

(6) whether the experts is proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying;

(7) whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;

(8) whether the expert has adequately accounted for obvious alternative explanations;

(9) whether the expert is being as careful as he [or she] would be in his [or her] regular professional work outside his [or her] paid litigation consulting; and

(10) whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.

Although this is ostensibly a more liberal standard than the prior Frye-Reed standard, which required the basis of the opinion to be generally accepted as reliable within the relevant scientific community, the practical outcome of Rochkind has been an uptick in the number of challenged experts. Parties litigating in Maryland should be aware that challenges to the testimony of their experts are increasingly likely in the normal course of litigation – and trial judges are given additional latitude to dig into the meat of an expert opinion and assess it methodologically.

A recent unreported opinion, Asokere v. Waldrop, No. 478, Sept. Term 2023, 2024 WL 1651658, (Appellate Court of Maryland. Apr. 17, 2024) sheds some light on the in-depth analysis expected of trial courts, and a critical pitfall that expert witnesses can fall into if insufficiently prepared to testify.

In Asokere, the question was whether the expert, Dr. Adler, could determine the cause of a minor child’s birth injury, persistent brachial plexus palsy (an ongoing weakness or paralysis of the arm), via differential diagnosis. In his deposition, Dr. Adler stated that, based on the degree of trauma he observed in the infant, that the injury could not have occurred except as a result of the doctor’s manipulation of the infant’s head. Although he pointed to no medical literature to support this claim, he stated that “maternal forces of labor cannot cause a permanent brachial plexus injury.” In other words, Dr. Adler worked backwards from the severity of the injury to determine that it could not have happened absent some negligence on the part of the doctor.

By the time of his Daubert hearing, however, Dr. Adler had made his opinion considerably more detailed and nuanced. Where previously he had testified that maternal forces of labor could never cause a permanent brachial plexus injury, at the Daubert hearing he merely claimed he was able to exclude it in this case, given all the facts he had access to. The trial court, noting the discrepancy between these two opinions, excluded Dr. Adler.

In deciding to uphold the trial court’s exclusion of Dr. Adler, the Appellate Court of Maryland noted that while experts are permitted to “clarify or provide more specific . . . support for previously disclosed expert opinions” they are not permitted to “shore up” an unreliable opinion with “additional facts[.]” Such an approach, the court found smacks of post-hoc rationalization and is devoid of the intellectual rigor that Daubert demands[.]”

The upshot of this is that practitioners and parties must ensure that their expert’s methodology is sound from the very beginning. It is not enough for an expert to testify in deposition and later supplement their opinions in a Daubert hearing when the question of their exclusion is on the line. Maryland courts will treat with skepticism attempts to develop new bases for previously held opinions, and rightly so, given that a significant change in the basis for an expert opinion suggests that an expert may have “developed their opinions expressly for the purposes of testifying” in contravention of the factors laid out in Rochkind.

Written by attorney Dillon Swensen.