“There is something fascinating about science. One gets such wholesale returns of conjecture out of such a trifling investment of fact.”
Mark Twain, Life on the Mississippi
U.S. District Judge Paul W. Grimm visited with the MSBA’s Negligence, Insurance and Workers Compensation Section on January 14, 2021, to discuss the history, scope and application of the Daubert standard for admissibility of expert testimony. He suggested that the foregoing observation by Samuel Clemens provides some perspective on the Court of Appeals’ recent rejection of the Frye-Reed standard in favor of Daubert: Daubert is much better suited to protect against jury exposure to scientific conjecture in the form of expert opinion based on flawed methodology or facts. Judge Grimm’s presentation analyzed the factors that will now be used to determine the admissibility of expert testimony in state courts, provided examples of their application, and offered tips for practitioners throughout.
The judge opened with the observation that in Rochkind v. Stevenson (No. 47, Sept. Term 2019)(8/28/20), the Maryland Court of Appeals unequivocally adopted the test for admissibility first announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), for all cases, including those pending at the time of the decision. Daubert will apply not only to expert testimony based on scientific knowledge, but also to opinion testimony based on any specialized skill, experience, training or education. The standard for admissibility is the same for the “hard” sciences (e.g., medicine and engineering), social sciences (e.g., psychology and economics), and other technical endeavors (e.g., information technology and construction).
The judge explained that the premise of Daubert is that “good methodology produces good results,” so that its focus is on the reliability of the methods by which experts reach their conclusions. Judge Grimm reminded his audience that federal cases and the notes of the advisory committee that accompanied the 2000 revisions to Fed. R. Evid. 702, make clear that not all of the factors recited in Daubert will apply in every case, and that the Daubert factors are non-exclusive. The factors originally enumerated by the Supreme Court have been supplemented in the advisory committee notes, and some or all of these might also be relevant in a given case. As the Court of Appeals specifically referenced these sources in Rochkind, Maryland practitioners should be familiar with them, and be prepared to use them when arguing questions regarding the admissibility of expert testimony.
Judge Grimm then explained each of the five original factors for determining the admissibility of expert testimony under Daubert: (1) whether the methodology employed by the expert has been tested; (2) whether it has been subjected to peer review; (3) whether it has a known rate of error; (4) whether standard procedures and protocols associated with the methodology been followed; and (5) whether it has been generally accepted as reliable within the relevant scientific, technical or specialized community. The judge discussed the concerns that each of these factors is designed to address, and provided examples of their application.
Regarding the first factor, Judge Grimm observed that the questions about testing (has it been tested; if not, why; if so, is it accurate; has the potential for bias been addressed?) require an assessment of how the test was developed, how it was designed to be used, whether it was properly applied in the subject case, and whether it is susceptible to misuse. Likewise, questions about the error rate of the method or test (is there a known error rate, and if so, it is acceptable?) are critical to understanding its reliability. Judge Grimm urged caution in any situation where there is no known error rate (“how can it be accurate if there is no way to determine its error rate”) or if the method is presented as 100% accurate (“there is no such thing”). He also noted that there is no “magically acceptable” error rate, as what is acceptable will vary depending on context: a 5% error rate for a vaccine that is 95% effective may be acceptable; a method that lands an airplane safely only 95% of the time probably is not.
The judge described the peer review process as a subjective one that serves primarily to expose obvious flaws in methodology and helps ensure that the best available research methods have been employed. It does not, however, guarantee scientific validity, and cannot detect fraud. It is a prime example of a Daubert factor that will not be applicable in all situations as there may not, for instance, be a peer reviewed journal for bricklaying or other pursuits that involve specialized training or experience, but nonetheless depend on Daubert for admissibility.
The question whether the methodology has attained general acceptance in the relevant community, Judge Grimm noted, is essentially the Frye-Reed test, but what was the primary consideration under Frye-Reed is now but one in a series of inquiries to be addressed before expert testimony will be admissible under Daubert. While still relevant, Frye-Reed proved to be too narrow, because it excluded tests and methods that were demonstrably valid and reliable, but too new to have gained general acceptance. At the same time, evidence that was based on a methodology generally accepted in the field and, therefore, admissible under Fyre-Reed might now be excluded if it does not pass muster under the other Daubert factors.
Finally, the issue of compliance with standard procedures or protocols serves as a warning to be wary of experts who modify tests or procedures for a particular purpose, particularly if that purpose is litigation. An expert’s use of different protocols in practice than those that were used to form an opinion for trial is a red flag that needs to explored. Judge Grimm also observed that if a test is designed to follow certain procedures that are not, in fact, followed, it may be difficult to determine whether it can still produce valid and reliable results. In those circumstances, one must look to the other Daubert factors to establish admissibility.
The judge then summarized some of the additional factors mentioned in Rochkind and the advisory committee notes before turning his attention to some things to consider when deciding whether to request a “Daubert hearing,” or whether to simply ask for a pretrial ruling that certain testimony will (or will not) be admitted at trial. The judge stressed the need to file such motions early (“last minute Daubert hearings never go well”), and to state clearly what it is that they are asking the judge to do, and why. The relief requested could range from a ruling based solely on the papers filed by the parties, oral argument without taking further evidence, or a full blown evidentiary hearing. Judge Grimm provided some insight on his keys to success for such motions, which included providing the judge with detailed information about the experts’ qualifications, opinions and the factual bases therefor, all with an eye towards fully educating the judge so that the judge can ultimately determine whether a hearing is necessary.
He also discussed the need for preparation (“prepare, and prepare and prepare again”). The judge ended his talk where much of the trial preparation will begin, providing advice on the role of pretrial discovery when the need to offer, oppose or examine an expert arises. He cited and discussed the applicable civil and criminal discovery provisions that can be used to obtain timely disclosure of information necessary to adequately prepare for these exercises. Judge Grimm also urged practitioners to comply with both the letter and the spirit of these rules, and to insist that their adversaries do the same, both to ensure adequate presentation of evidence, and to avoid costly surprises at trial.
Although he was too polite to mention it, issues regarding discovery and experts are covered extensively in P. Grimm, C. Fax and P. Sandler, Maryland Discovery Problems and Solutions (2nd Ed.), MSBA 2020.
The full, hour-long presentation can be viewed here.