Maryland’s Highest Court Abandons Frye-Reed And Adopts Daubert

The Court of Appeals of Maryland (“Maryland Appellate Court”), Maryland’s highest appellate court, in its opinion filed on August 28, 2020, adopted the Daubert  standard of evaluating whether expert testimony will be admitted, thereby abandoning the Frye and Reed standard that Maryland first adopted in 1978.


In 1923, the United States Court of Appeals for the District of Columbia announced a new evidentiary standard by which the admissibility of expert testimony rooted in a novel scientific principle or discovery turned on the “general acceptance” of such evidence “in the particular field in which it belongs.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). In the ensuing fifty years, almost all of the courts in the United States that considered the admissibility of scientific evidence adopted the rationale set out in Frye, including the Maryland Appellate Court in 1978. Reed v. State, 283 Md. 374, 382 (1978). Hence, after noting the majority of courts were in agreement that general acceptance in the relevant scientific community had come to be the standard, Frye-Reed was born in Maryland; “before a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s” relevant scientific community.


In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court of the United States held that Federal Rule of Evidence (“FRE”) 702 superseded Frye’s general acceptance test. In place of Frye, the Supreme Court provided a list of flexible factors to help courts determine the reliability of expert testimony. The Supreme Court read FRE 702 to mandate a threshold determination as to whether the “scientific testimony” at issue is “not only relevant, but reliable.” On reliability, the Supreme Court provided a non-exclusive list of factors that may be pertinent: (1) “whether a theory or technique . . . can be (and has been) tested”; (2) “whether [it] has been subjected to peer review and publication”; (3) “the known or potential rate of error”; (4) “the existence and maintenance of standards controlling the technique’s operation”; and, (5) whether it is “general[ly] accepted” within the relevant scientific community. In Kumho Tire Co. v. Carmichael, the Supreme Court held that “Daubert’s general holding . . . applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.” 526 U.S. 137, 141 (1999).

At least 38 states followed the Supreme Court’s lead and replaced their respective Frye standards with Daubert. Maryland, however, did not. Nonetheless, in the forty years that followed Reed, Maryland experienced a jurisprudential drift: the Frye-Reed standard announced in 1978 slowly morphed into a “Frye-Reed Plus” standard, implicitly and explicitly relying on and adopting several Daubert principles. The Maryland Appellate Court modified the reach of Frye-Reed to include not only scientific methods, but also scientific conclusions.

Maryland Rule 5-702

Maryland Rule 5-702 governs the admissibility of expert testimony and provides: “Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.” The third prong—sufficient factual basis—has been interpreted to include two sub-factors: an adequate supply of data and a reliable methodology with which to analyze the data.

The Maryland Appellate Court held in the present case: “Instead of perpetuating a process wherein expert testimony must pass through Frye-Reed and Rule 5-702, we implement a single standard by which courts evaluate all expert testimony: Daubert … Daubert, by contrast, refocuses the attention away from acceptance of a given methodology—although that is not totally removed from the calculus—and centers on the reliability of the methodology used to reach a particular result … Under Daubert, judges are charged with gauging only the threshold reliability—not the ultimate validity—of a particular methodology or theory.”

“To complete our “jurisprudential drift”—once and for all—we set forth the Daubert factors we find persuasive in interpreting Rule 5-702. They include, but are not limited to:
(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.
Daubert, 509 U.S. at 593–94 (cleaned up); Fed. R. Evid. 702 Advisory Committee Note.”

“In addition to these factors, courts have developed additional factors for determining whether expert testimony is sufficiently reliable. These factors include:
(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.
Fed. R. Evid. 702 Advisory Committee Note (cleaned up).”

“Simply put, all of the Daubert factors are relevant to determining the reliability of expert testimony, yet no single factor is dispositive in the analysis. A trial court may apply some, all, or none of the factors depending on the particular expert testimony at issue … Applying Daubert factors to our interpretation of Rule 5-702 and eliminating Frye-Reed provides a simpler, more straightforward analysis of expert testimony. There is no longer a need to distinguish new or novel techniques or determine if testimony embraces a “scientific technique.” Just as this process provides a flexible structure for trial courts, so too does it guide appellate courts reviewing the admission or exclusion of expert testimony. Instead of maintaining two separate, and potentially outcome determinative, standards of review—de novo for Frye-Reed and abuse of discretion for Rule 5-702—all expert testimony is reviewed under the abuse of discretion standard.”

The Maryland Appellate Court concluded: “In light of the significant changes in the law concerning expert testimony, as established by Daubert and its progeny, we adopt the Daubert standard in Maryland because we find those factors persuasive in interpreting Maryland Rule 5-702. Since Daubert is a new interpretation of Rule 5-702, our decision today “applies to this case and any other cases that are pending on direct appeal when this opinion is filed, where the relevant question has been preserved for appellate review0 … In this context, the “relevant question” is whether a trial court erred in admitting or excluding expert testimony under Maryland Rule 5-702 or Frye-Reed.”

Source Rochkind v. Stevenson, No. 47 September Term, 2019.

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This entry was posted on Monday, August 31st, 2020 at 5:30 am. Both comments and pings are currently closed.


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