It has been almost four months to the day after the Maryland Court of Appeals adopted the Daubert standard for expert testimony. As noted by the court in the Rochkind v. Stevenson opinion, which first established the new standard, Daubert applies to all currently pending appeals and cases at the trial level as of the date of that opinion. While there have not been any appellate decisions applying the standard since that holding, Rochkind and Daubert are no doubt affecting evidentiary hearings and trial proceedings in Maryland daily.
While my last article examined the majority opinion and compared the Frye-Reed and Daubert standards as set forth by the Court in August, now that the dust has settled with respect to an exciting new change in law for Maryland, I cannot help but consider some of the pervasive concerns presented by Judge Watts in her dissenting opinion in the very case I initially examined.
The dissent in Rochkind, authored by Judge Watts and joined by Judges Hotten and Greene, first notes that the underlying case required no adoption of a new standard and posits that the change in the expert standard is not appropriate. See Rochkind v. Stevenson, 471 Md. 1 (2020) (J. Watts dissenting). Most memorably, however, the dissent highlights serious concerns with the Daubert standard and its “impact … on African American people, people of color, and people of various socioeconomic status in Maryland.” Id. at 54.
As you will recall from my prior article and the Rochkind decision, the transition from Frye-Reed to Daubert brought with it a litany of other factors which would weigh on expert testimony admissibility—in some respects appearing to ratchet up the standard to allow only the most tried and tested scientific evidence to be presented. However, while some may view this as a welcome change to “weed out” the litigious and allow for only the strongest claims to move forward, it may be at the expense of Marylander’s access to justice. After all, the higher the burden for expert testimony and scientific evidence, the more well-credentialed experts with extensive reports, trials and examinations will be required – all amounting to significantly more expense.
The dissenting opinion points to a study which posits that “Daubert [has] resulted in fewer claims by black claimants, and that once the claimants are out of the system, they stay out.” Id. “At a minimum” the dissent suggests, Maryland should undertake a study to determine the effect of this decision and if and how it might “negatively affect African American people, people of color, or people of limited financial means as potential litigants.” Id. While the majority certainly does not dismiss the “seriousness of [the dissent’s] contention,” it does admit that there is some ambiguity as to the effects – pointing to a study that came to “the opposite” conclusion.
Nevertheless, as with any change in Maryland law, it is important to analyze the effects on all Marylanders. After all, Maryland is one of the most diverse states in America – the effects of a decision is unlikely to impact everyone equally. As practitioners, encouraging the widest access to justice possible should be at the forefront of our decision-making. It will be interesting to see how the courts keep that interest in mind in applying the standard moving forward, and how that application affects the concerning trends that have been reported.
Kathryn Jackson is an Associate in PK Law’s General Litigation Group where she focuses her practice on insurance defense. Prior to joining the firm as an associate, she served as a summer associate and law clerk in the firm’s General Litigation Group. She can be reached at 443-275-0640 and email@example.com.