ANNAPOLIS, Md. (Legal Newsline) – Maryland is the latest state to adopt a more stringent approach to expert testimony.
On Aug. 28, the state’s highest court in a 4-3 decision adopted the Daubert standard, which gives more power to judges to prevent testimony from experts that is not accepted in their particular field.
It gives judges at least 10 new factors to consider when deciding if testimony should be presented to a jury. Defendants have urged courts in Maryland and other states to adopt the Daubert standard in order to avoid what they call “junk science” from being presented.
The Maryland decision stemmed from a lawsuit alleging lead poisoning was the fault of a landlord. Despite only living in Stanley Rochkind’s building for 15 months, Starlena Stevenson alleged lead paint there caused her learning disabilities like ADHD.
At issue was the testimony of pediatrician Cecilia Hall-Carrington that said lead paint was “a significant contributing factor” to Stevenson’s problems.
The testimony was allowed at the trial level, leading to a $3 million jury verdict.
“Applying Daubert factors… and eliminating Frye-Reed provides a simpler, more straightforward analysis of expert testimony,” Court of Appeals Judge Jeffrey Getty wrote.
“There is no longer a need to distinguish new or novel techniques or determine if testimony embraces a ‘scientific technique.’”
Daubert is the standard for federal courts and more than 30 states. Two years ago, it was adopted by Missouri after its courts became popular destinations for plaintiffs lawyers with talcum powder/asbestos cases. Those cases often turn on whether plaintiffs are allowed to present experts who say there is asbestos in talcum powder.
Florida’s supreme court adopted Daubert last year after refusing to do so in 2017. Among the new considerations for judges in Maryland are:
-Whether a theory or technique can be and has been tested;
-Whether it has been subjected to peer review and publication;
-Whether it has a known or potential rate of error; and
-Whether a theory or technique is generally accepted.
Not everyone on the Maryland bench was happy about the decision, though. Judges Michele Hotten and Clayton Greene joined Shirley Watts’ dissenting opinion that said the instant case wasn’t the right time to address the issue because she felt the trial judge did not err by allowing the plaintiff’s expert to testify about lead poisoning.
“(T)he majority is willing to refuse to refer the matter to the Rules Committee for study of how the decision will impact Marylanders when there are numerous scholarly sources indicating that the adoption of Daubert has far-reaching consequences,” Watts wrote.
Stevenson’s case will be sent back to the trial court to determine, under the Daubert standard, whether her expert’s testimony should have been introduced to jurors.