The legal community understandably took notice when, by a 4-3 margin, the Maryland Court of Appeals jettisoned the Frye-Reed standard for the admissibility of expert testimony based on novel scientific principles, and adopted the standard first announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Rochkind v. Stevenson (No. 47, Sept. Term 2019)(8/28/20). As the decision was published during a period of intense national discourse on racial justice, it would also be understandable if one happened to notice that all three of the dissenting judges in Rochkind were black, while all four who voted with the majority were not. While this lineup may be wholly coincidental, it is clear that race was an issue for the dissent, which argued that the “adoption of the Daubert standard should not be done without information about the impact that adopting Daubert would have on African American people, people of color, and people of various socioeconomic status in Maryland.” Rochkind, Watts, J. dissenting (“Dissent”), Slip Op. at 17. Further clouding the optics, Rochkind involved allegations of lead paint exposure, a burden that disproportionately affects children of color. CDC Childhood Lead Poisoning Prevention, At Risk Populations. For the Majority, however, this was simply a matter of law: science and industry had passed Frye by.
In its simplest form, Frye-Reed required that expert testimony based on new or novel scientific principles was admissible only if those principles were “generally accepted in the relevant scientific community.” Rochkind, Slip Op. at 11, citing Reed v. State, 283 Md. 374 (1978); Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923). Seventy years after Frye, the U.S. Supreme Court determined that Frye had been superseded by the Federal Rules of Evidence, which required that, to be admissible, scientific evidence must be “not only relevant, but reliable.” Daubert, 509 U.S. at 589. Reliability, in turn, was determined by reference to a non-exclusive list of factors that included not only the “general acceptance in the relevant scientific community” standard of Frye, but also whether the theory or technique had been tested, peer reviewed, had a known or potential rate of error, or was subject to scientific standards and controls. Id. at 593–94. Additional factors have been added to this list over the years. Rochkind, Slip Op. at 36.
“The Daubert analysis, according to the Supreme Court, was more flexible than the ‘uncompromising [Frye] ‘general acceptance test’ ’ and gave trial courts greater discretion to admit scientific expert testimony that is relevant and founded on sound principles, even though novel or controversial.” Rochkind, Slip Op. at 12, quoting Daubert, 509 U.S. at 596. The Rochkind majority noted that the Court had been “drifting” toward Daubert for nearly 20 years, and the time had come for Maryland to join the “supermajority of jurisdictions” that had already adopted it. Id. at 13-14.
The Dissent, however, did not believe that the issue was properly before the Court or that there was any reason to depart from well-established precedent. Dissent at 1; 13. The Dissent was also alarmed by several studies suggesting that Daubert “disproportionately and negatively affects claimants of color.” Id. at 17, quoting Andrew W. Jurs and Scott DeVito, A Tale of Two Dauberts: Discriminatory Effects of Scientific Reliability Screening, 79 Ohio St. L.J. 1107, 1144 (2018). Under these circumstances, the Dissent argued, any change in existing law should occur only after this issue is properly vetted through the Court’s rule-making process. Dissent at 18.
Professors Jurs and DeVito built their inquiry around the proposition that the Daubert standard is perceived by practitioners as a more stringent barrier to the admissibility of scientific evidence than is Frye, which inures to the benefit of civil defendants (by keeping evidence out) and is inimical to the interests of plaintiffs (who face higher and more expensive evidentiary hurdles). Jurs & DeVito at 1124–25. The authors then analyzed the filing patterns of litigants in state and federal courts before and after a particular jurisdiction adopted Daubert. In general, they found that in states that continued to use Frye after the federal courts adopted Daubert, plaintiffs filed far fewer cases in federal court, and filed far more in state court. Id. They further found that when those same states later adopted Daubert, federal filing rates as a whole rebounded in a near perfect (but in other contexts, highly elusive) V-shaped recovery. Id. at 1126.
The rebound was not, however, race-neutral. Their analysis showed that when the state courts adopted Daubert and removed the disincentive to use the federal courts, filing rates in federal courts increased for whites only. Id. at 1127. The authors found that once black plaintiffs left the federal arena, they never returned. Id. at 1144–45. “In essence, something about the Daubert standard pushes Blacks out of federal courts permanently and opens the door for more Whites in federal courts permanently.” Id. at 1137.
They were left to explain what it was about Daubert that caused this disparity. Building on earlier research showing that damage awards for minorities tended to be lower than awards for whites, Professors Jurs and DeVito suggested that the post-Daubert filing trends resulted from attorneys’ economic valuation of prospective cases. Case valuation depends on two primary factors: the likelihood of success and the amount of the potential recovery. A stricter standard for the admissibility of evidence reduces the plaintiff’s likelihood of success. When the stricter standard is imposed on communities whose potential recovery is already depressed, their cases become less attractive for attorneys Id. at 1142. The authors concluded that “the changes suggest that Daubert can and does act on these communities as a type of tort reform measure, restricting access to civil justice and stoking the crisis of the legitimacy for civil justice within those communities.” Id. at 1110.
The Dissent found this “extremely troubling,” and would have preferred that the matter be referred to the Rules Committee for investigation. Dissent at 18. “Information on the impact of the Daubert standard is information that the courts, the Bar, and the legal profession in general should be made aware of before this Court determines whether to take the action of adopting the Daubert standard for use in our State.” Id. at 23.
The Majority rejected the call to refer the question for further study, concluding that “[t]his Court is well suited to weigh the advantages and disadvantages of modifying our approach to any area of the law—as we often do.” Slip Op. at 29, n. 15. Its historical review of the underlying issue–whether there was such a significant change in the law to allow the Court to deviate from stare decisis and adopt Daubert–was extensive. The Majority largely refused, however, to join issue with the Dissent on its social justice concerns. Referring to the Jurs and DiVito study, the Majority stated simply that “[w]e do not reject the seriousness of this contention. We do, however, note other scholarly research coming to the opposite conclusion.” Id. The Majority, in short, was unmoved.
A lengthy rejoinder from the Dissent cited additional research in support of its position that was included in a footnote spanning four pages. Judge Watts further observed: “Other than including a quote in a parenthetical from a fifteen-year-old article—Edward K. Cheng & Albert H. Yoon, Does Frye or Daubert Matter? A Study of Scientific Admissibility Standards, 91 Va. L. Rev. 471 (2005)—the Majority provides no information about the impact of Daubert, does no weighing about the effects of the switch, and gives no information on how litigants in Maryland will be impacted.” Dissent at 19.
It is far too early to tell whether this will be the Court’s last word on this subject, but for now the Daubert standard is the law in Maryland. If history is any guide, the Rochkind litigants will return to Rowe Boulevard for a possible third trip to the Court of Appeals, after the circuit court reconsiders the admissibility of the plaintiff’s expert testimony on remand. While other state courts have experienced similar rifts among their ranks, the concern about Daubert’s potentially disparate impact on minorities and the poor adds a new wrinkle to an old debate. In Florida, for example, the state Supreme Court in a 4-3 decision retained Frye after refusing to follow its legislature’s statutory directive to adopt Daubert, on the grounds that the matter was procedural and, therefore, the prerogative of the judiciary’s rules committee. Delisle v. Crane Co., 258 So. 3d 1221 (Fla. 2018). A year later, the court adopted Daubert by rule. The Court’s narrow margin in Rochkind, and the introduction of an issue that goes to the heart of the access to justice debate in an era of profound national reckoning, may leave an opening for Daubert detractors to convince the Court to explore the issue further.