Case Update: Maryland Court of Appeals Adopts Daubert Standard for Admitting Expert Testimony in Rochkind v. Stevenson.


In this case, Starlena Stevenson, a former occupant of a residence brought an action against the residence's owner and manager, Stanley Rochkind for negligence and violations of the Consumer Protection Act arising out of her exposure to lead based paint as a child. She alleged that the lead exposure caused her Attention Deficit Hyperactivity Disorder (ADHD) and other psychological disorders. To support her claim, Stevenson's evidence included an expert witness's testimony that the lead exposure caused her ADHD.

A trial was held before the Circuit Court in 2011. Rochkind sought to exclude Stevenson's expert witness testimony but was unsuccessful. Stevenson's expert witness relied on a study from the Environmental Protection Agency (EPA) to support her testimony that there is a causal relationship between lead exposure and the symptoms of ADHD. The jury returned a verdict in favor of Stevenson and awarded her damages. Rochkind moved for a new trial, or in the alternative, sought to reduce the amount of damages awarded. The Court ordered a new trial on the issue of damages.

At the second trial, Rochkind moved to exclude the expert witness testimony again, which was denied. The Court admitted the expert testimony under Md. Rule 5-702 because it found the expert drew from reliable sources. The jury awarded Stevenson damages, which were reduced by the Court pursuant to the statutory cap, for a total judgment of $1,103,000.00. The Court denied Rochkind's motion for a new trial.

On appeal, the Court of Special Appeals held that the expert witness's testimony on causation was properly admitted under Md. Rule 5-702 because the opinion was supported by an adequate factual basis and was sufficient to allow the jury to decide the causal connection between the lead exposure and Stevenson's ADHD. The Court also held that the Circuit Court did not err in failing to hold a Frye-Reed hearing on the expert's testimony because the studies she relied upon were not novel conclusions and used methodologies that are generally accepted in the scientific community.

Rochkind appealed that decision to the Court of Appeals, which agreed with him. The Court held that under a Md. Rule 5-702 analysis, Stevenson's expert did not provide a sufficient factual foundation for relying on the EPA's study on lead exposure causing ADHD. There were no other cited studies that supported the opinion that lead exposure can cause ADHD. The case was remanded to the Circuit Court for a new trial on the issue of damages.

Before the third trial, Rochkind moved to exclude the expert witness testimony, which was again, denied by the Circuit Court. The expert witness, again, testified that lead exposure can cause ADHD. The Circuit Court declared a mistrial.

During the fourth trial, the expert witness testified that the lead exposure caused Stevenson's attentional deficits, hyperactivity, and impulsivity, but did not specifically mention "ADHD". The expert witness, again, relied on the EPA study. The jury awarded Stevenson $1 million in economic damages and $2 million in noneconomic damages, which were reduced after trial pursuant to the statutory cap.

Rochkind filed an appeal to the Court of Special Appeals. While that appeal was pending, Stevenson filed a petition for writ of certiorari and Rochkind filed a cross-petition. The Court of Appeals granted both petitions to answer several questions regarding the admissibility of expert testimony. Most notably, the Court was called on to determine whether it should adopt a new standard for admitting expert testimony.

The Frye standard was adopted in Maryland in 1978. See Reed v. State, 283 Md. 374 (1978). The test is one of general acceptance: for expert testimony predicated on a novel scientific principle or discovery to be admissible, the scientific principles or discoveries must be generally accepted in the relevant scientific community. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Correspondingly, Maryland courts would then admit expert testimony through either the Frye-Reed standard or Md. Rule 5-702. To be admissible, expert testimony discussing novel scientific theories would need to meet both the Frye-Reed and Rule 5-702 requirements, but expert testimony addressing non-novel scientific evidence must meet only the requirements of Rule 5-702. Seventy (70) years later, the Supreme Court of the United States adopted a new standard for admissibility of expert testimony in federal courts. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court held that Federal Rule of Evidence 702 superseded Frye. The Daubert standard and the Court's list of flexible factors to determine reliability of the expert testimony would replace Frye.

After Daubert, Maryland courts remained in the minority of jurisdictions that continued to use the Frye standard. The present case makes clear that the Court of Appeals has formally adopted the Daubert standard as controlling and overrules the Frye-Reed general acceptance test.

Maryland courts should consider the five original Daubert factors when interpreting Md. Rule 5-702. These include:

  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 Court also noted that because courts have developed additional factors for determining whether expert testimony is sufficiently reliable, additional factors include:

  1. whether experts are 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;
  2. whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;
  3. whether the expert has adequately accounted for obvious alternative explanations;
  4. 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
  5. whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.

In remanding the case, the Court noted that applying Daubert factors to Md. Rule 5-702 is simpler and more straightforward. Daubert provides a flexible structure to be used for trial courts and guidance to appellate courts regarding the admission or exclusion of expert testimony. Notably, appellate courts review the admissibility decision for an abuse of discretion.

The Court's decision applies to the present case and any other cases that are pending on direct appeal where the issue is whether the trial court erred in admitting or excluding expert testimony under Md. Rule 5-702.

The minority, in a dissenting opinion, thought that the expert witness's testimony satisfied the requirements of Md. Rule 5-702, and that the change from the Frye-Reed to the Daubert standard need not be considered.

A copy of the Opinion can be found at: