Under a Daubert-Rochkind analysis, expert testimony is evaluated by a flexible inquiry into an expert’s reliability, focusing on the expert’s principles and methodology as opposed to their conclusions. The Supreme Court of Maryland has endorsed a non-exclusive list of factors that trial courts should consider in evaluating the reliability of expert testimony, all of which focus on the trustworthiness of the underlying data, theory, methodology, field of expertise, or the reliability of the expert’s ultimate conclusion and the expert themselves.

Those factors are:
(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[;]
. . .
(6) 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;
(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.

In a Maryland medical malpractice case on appeal, the plaintiffs had filed an action in the Circuit Court for Montgomery County alleging that Dr. Waldrop had breached the standard of care during G.’s delivery, resulting in a permanent brachial plexus injury, and seeking damages from Dr. Waldrop and her employer, Moore OBGYN, LLC.

The defendants alleged that the plaintiffs’ experts concluded that Dr. Waldrop violated the standard of care merely because G. had suffered a brachial plexus injury during the course of delivery. The defendants asserted that this opinion was “flatly contradict[ed by] the established consensus of the relevant medical community,” which recognizes that in addition to resulting from physician error, a brachial plexus injury can be caused solely by maternal forces of labor.

The trial court ultimately explicitly found: “Dr. Adler’s deposition testimony and his Daubert hearing testimony do differ significantly as to the basis for the opinions.” Therefore, the court granted the motion with respect to Dr. Adler. Similarly, with regard to Dr. Luciani, the court found that “Dr. Luciani had also read those opinions in which his testimony had been excluded . . . [and] made a point to emphasize [at the Daubert hearing] that his opinion was case specific and was only specific to [G.]” Moreover the court determined that “Dr. Luciani did not mention differential diagnosis at all in his deposition testimony, but he did testify that it was the basis for his opinion, at the Daubert hearing[.]” The trial court, noting that it was exercising its gatekeeping function under Daubert, granted the defendants’ Rule 5-702 motion with respect to both experts.

The Appellate Court of Maryland stated in its unreported Opinion filed on April 17, 2024: “Our Daubert-Rochkind standard is one that requires both flexibility on the part of, and deference to, the trial court’s exercise of discretion … (Post-Rochkind, it is still the rare case in which a Maryland trial court’s exercise of discretion to admit or deny expert testimony will be overturned.”). Therefore, we find no error in the circuit court’s conclusion that a significant change in the experts’ basis for their opinions, apparently altered not because of an updated scientific understanding, but due to previous preclusion in other trials, rendered their opinions unreliable under Rule 5-702. For the reasons stated above, we affirm the judgment of the circuit court.”

Source Asokere v. Waldrop, M.D., No. 478 September Term, 2023.

If you or your baby suffered a birth injury (or worse) during labor and/or delivery in Maryland or in another U.S. state, you should promptly find a birth injury lawyer in Maryland or in your state who may investigate your birth injury claim for you and represent you and your child in a birth injury medical malpractice case, if appropriate.

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