In light of the Maryland Court of Appeals recent decision in Rochkind v. Stevenson, this article assesses the current state of law with regard to the admissibility of expert testimony in the District of Columbia, Maryland and Virginia. See 2020 WL 5085877 (Md. Aug. 28, 2020), reconsideration denied (Sept. 25, 2020).
Effective immediately, Rochkind affirmatively adopted the nonexclusive list of Daubert reliability factors as the governing test for determining the admissibility of expert witness testimony in the State of Maryland.
Therefore, under Maryland Rule 5-702, parties are now entitled to a pretrial hearing regarding the admissibility of expert testimony in which the court should consider factors, including but 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; (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. Id. citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993).
Prior to the Rochkind decision, Maryland courts employed the Frye standard of general acceptance in the scientific community as adopted in Reed v. State, 283 Md. 374 (1978). See also Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). However, the Rochkind court noted that the inflexibility and uncompromising nature of the Frye-Reed standard had led to a significant amount of inconsistency and confusion throughout trial courts within Maryland. The Rochkind court observed that as a result of the inconsistency and confusion, Maryland jurisprudence had begun to drift towards application of the Daubert reliability factors.
By formally adopting Daubert, the Rochkind court provided a way to end confusion over existing precedent and a more flexible approach for considering expert testimony moving forward.
The Rochkind decision echoes the District of Columbia’s earlier adoption of the Daubert reliability factors in Motorola, Inc. v. Murray, 147 A.3d 751 (D.C. 2016). Like Maryland, the District of Columbia previously utilized an expanded version of the Frye general acceptance test.
In adopting Daubert, the Motorola court noted:
“[A]t the risk of over-simplification[,] if a reliable, but not yet generally accepted, methodology produces ‘good science,’ Daubert will let it in, and if an accepted methodology produces ‘bad science,’ Daubert will keep it out; conversely, under Frye, as applied in this jurisdiction, even if a new methodology produces ‘good science,’ it will usually be excluded, but if an accepted methodology produces ‘bad science,’ it is likely to be admitted.” Id. at 756 discussing State v. Coon, 974 P.2d 389, 393-394 (Alaska 1999).
The Motorola court noted that while Rule 702 is concerned with the reliability of the principles and methods applied by the expert, 702(d) further requires the court to determine whether “the expert has reliably applied the principles and methods to the facts of the case.” Id. In adopting Daubert, the Motorola court found that the ability to focus on the reliability of principles and methods, and their application, is a decided advantage that will lead to better decision-making by juries and trial judges alike.
The Virginia Supreme Court, meanwhile, has expressly declined to follow the Frye test, and has not adopted Daubert either. Rather, admissibility of expert testimony in Virginia is governed by Va. Code § 8.01-401.1, which permits experts to “give testimony and render an opinion or draw inferences from facts, circumstances or data made known to or perceived by such witnesses at or before the hearing or trial during which he is called upon to testify.” Such testimony is admissible “if it will assist the fact finder in understanding the evidence.” Tittsworth v. Robinson, 252 Va. 151, 154 (1996).
When it comes to evaluating scientific evidence, Virginia requires that the trial court “must make a threshold finding of fact with respect to the reliability of the scientific method offered, unless it is of a kind so familiar and accepted as to require no foundation to establish the fundamental reliability of the system, such as fingerprint analysis, or unless it is so unreliable that the considerations requiring its exclusion have ripened into rules of law, such as ‘lie-detector’ tests, or unless its admission is regulated by statute, such as blood-alcohol test results.” Spencer v. Commonwealth, 240 Va. 78, 97 (1990); Billips v. Commonwealth, 274 Va. 805, 808-09 (2007) (expanding Spencer rule to apply in all proceedings).
The information relied upon by an expert can include any that is “normally considered by experts practicing in the expert’s discipline, even if that information would be inadmissible in evidence.” Toraish v. Lee, 293 Va. 262, 268 (2017). However, Virginia courts will not permit “the admission of expert testimony based upon a mere assumption which . . . has no evidentiary support.” Lawson v. Doe, 239 Va. 477, 483 (1990).
This last requirement has also been formulated as a requirement that an expert testimony have “an adequate factual foundation,” Holiday Motor Corp. v. Walters, 292 Va. 461, 483 (2016) (quoting Hyundai Motor Co. v. Duncan, 289 Va. 147, 154 (2015)), and “take into account all relevant variables.” Id. If “tests are involved, such testimony should be excluded unless there is proof that the conditions existing at the time of the tests and at the time relevant to the facts at issue are substantially similar.” Tittsworth, 252 Va. at 154.
While the Virginia law is seen as having “liberalized the admissibility of expert testimony” compared to the federal Daubert standard adopted by D.C. and Maryland, id. at 155, these requirements have often been applied strictly to exclude expert testimony for failing to consider a particular variable or for relying on a test that was not conducted under conditions similar enough those at the subject incident.
In sum, while Maryland and the District of Columbia have, for all intents and purposes, adopted the familiar Daubert federal standard to govern the admission of expert testimony, litigants in Virginia need to heed that state’s particular standard, which is more open to interpretation by the trial courts.
This concepts index is not intended to contain legal advice or to be an exhaustive review. If you have any questions about expert witness key concepts and terms, please contact James N. Markels or Edward J. Sedlacek at Jackson & Campbell, P.C.