Rochkind v. Stevenson

Opinion by Adkins, J. We have often said that when it comes to expert testimony, trial court judges protect juries from “junk science” and other unsupported scientific conclusions. But in the complex field of behavioral disorders, the task of determining whether causation testimony rests on sound science is fraught with potential ²⁸¹ pitfalls. This case presents the question of whether studies concluding that lead exposure causes various attention problems constitute a sufficient factual basis for an expert’s testimony that lead caused the plaintiffs Attention Deficit Hyperactivity Disorder (“ADHD”). FACTS AND LEGAL PROCEEDINGS Respondent Starlena Stevenson was born on December 22, 1990.

For the first ten months of her life, Stevenson lived at 2110 Clifton Avenue in Baltimore City with her mother, Charlena Montgomery, and maternal grandmother, Lorena Cooks. In the fall of 1991, Stevenson and Montgomery moved to 3823 Fairview Avenue (“Fairview”), where they lived for 15 months. At the time, Fairview was owned in part by Petitioner Stanley Rochkind. According to Montgomery, Fairview contained chipping and flaking paint on the windowsills, floors, and front porch.

Montgomery witnessed Stevenson mouthing the windows at Fairview. In early 1993, Stevenson and her mother moved to an apartment on Pennsylvania Avenue (“Pennsylvania”). In 1992 and 1993, Stevenson’s blood lead level was tested three times. The results were as follows: Date Age Blood Lead Level, 1 Residence October 29. 1992 1 year, 10 months 14 µg/dL Fairview January 8,1993 2 years 13 µg/dL Fairview March 17,1993 2 years, 3 months 11 µg/dL Pennsylvania [Editor’s Note: The preceding image contains the reference for footnote1].” When Stevenson was five years old, she was evaluated by Thomas Ley, Ph.D., a psychologist with the Kennedy Krieger Institute, because she was struggling to pay attention in school.

Dr. Ley found that Stevenson’s cognitive functioning was within the “low average to borderline range.” He diagnosed Stevenson with ADHD and recommended that she begin taking medication to treat it. Over the next few years, ²⁸² Stevenson was prescribed Dexedrine, Ritalin, and Adderall to treat her ADHD. In 2004, when she was thirteen years old, Stevenson attempted suicide by cutting her wrists and overdosing on prescription medication. The following year, Stevenson complained of auditory hallucinations and depression.

She was evaluated by a psychologist at Mount Washington Pediatric Hospital (“MWPH”) who diagnosed her with major depressive disorder and generalized anxiety disorder. Since graduating from high school in 2008, Stevenson has been sporadically employed. She has worked as a patient transporter for the University of Maryland Medical System (“UMMS”), a cashier for Royal Farms, and a babysitter. Stevenson was fired from her job at UMMS, and she testified that she quit her job at Royal Farms because she was bored.

As of October 2014, Stevenson was unemployed. In December 2011, Stevenson filed suit against Rochkind in the Circuit Court for Baltimore City for negligence and violations of the Maryland Consumer Protection Act. 2 In July 2012, Arc Environmental, Inc. conducted lead testing at Fairview. The testing detected lead-based paint on 22 interior surfaces and nine exterior surfaces. In February 2013, Cecilia Hall-Carrington, M.D., a pediatrician, filed a report concluding to “a reasonable degree of medical probability” that Stevenson was poisoned by lead at Fairview, and that “her lead poisoning is a significant contributing factor” to her neuropsychological problems, including her ADHD.

Before trial, Rochkind filed four motions in limine seeking to exclude Dr. Hall-Carrington’s testimony. He argued that she should not be permitted to testify that Fairview was a source of Stevenson’s lead exposure or that such exposure caused Stevenson’s “cognitive deficits,” including, specifically, ADHD. Rochkind requested a Frye-Reed hearing on each motion. The court denied his request.

After hearing argu ²⁸³ ments on the motions in limine, the court denied them as well. The jury returned a verdict in favor of Stevenson, awarding her $829,000 in economic damages and $534,000 in noneconomic damages. Rochkind filed a motion for a new trial, or, in the alternative, a remittitur. The court granted his motion in part and ordered a new trial on the issue of damages alone.

The partial new trial began in October 2014, Before trial, Rochkind renewed his motions in limine to exclude Dr. Hall-Carrington’s ADHD testimony, which were again denied. The court declined to hold a Frye-Reed hearing, explaining that Dr. Hall-Carrington’s opinions are “not new science” or “new conclusions.” It admitted her testimony under Maryland Rule 5-702 because it found that she drew from “reliable sources.” During trial, Dr. Hall-Carrington testified as to both general and specific ADHD causation. She explained that studies show that lead exposure can cause “attention problems[ ] or ADHD” generally. She also opined “within a reasonable degree of medical probability” that lead exposure caused Stevenson’s ADHD specifically.

To support her testimony, Dr. Hall-Carrington relied on a publication from the Environmental Protection Agency reviewing the most recent studies on the effects of lead exposure in children, titled “Integrated Science Assessment for Lead” (“the EPA-ISA”). She testified that the EPA-ISA concluded that there is a causal relationship between lead exposure and the symptoms of ADHD, such as attention decrements, impulsivity, and hyperactivity. Dr. Hall-Carrington also testified that “some years ago there was a concern with suicide in kids [taking] Adderall.” In closing argument, Stevenson’s counsel implied that Stevenson’s depression and hallucinations were side effects of her ADHD medications, including Adderall. The jury awarded Stevenson $753,000 in economic damages and $700,000 in noneconomic damages.

Due to the statutory cap on noneconomic damages, the court reduced the total judgment to $1,103,000. See Md. Code (1986, 2013 Repl. Vol.), § 11-108 of the Courts and Judicial Proceedings Article. ²⁸⁴ Roehkind filed a motion for a new trial, which the court denied. He filed a timely appeal.

The Court of Special Appeals held that the trial court did not err in failing to hold a Frye-Reed hearing on Dr. Hall-Carrington’s general causation testimony because the studies she relied upon did not reach novel conclusions and “used methodologies that are generally accepted” in the scientific community. Rochkind v. Stevenson, 229 Md.App. 422, 464 , 145 A.3d 570 (2016). The intermediate appellate court also held that the trial court properly admitted Dr. Hall-Carrington’s specific causation testimony under Rule 5-702 because her opinion “was supported by an adequate factual basis and was sufficient to allow the jury to decide the causal connection, if any, between lead exposure and [ ] Stevenson’s ADHD.” Id. at 465 , 145 A.3d 570 . Roehkind appealed.

We granted certiorari to answer the following questions: 3 1. Did the trial court err in admitting Dr. Hall-Carring-ton’s general and specific ADHD causation testimony under Maryland Rule 5-702? 2. Did the trial court err in failing to hold a Frye-Reed hearing on Dr. Hall-Carrington’s general ADHD causation testimony? ²⁸⁵ Because we answer the first question in the affirmative, we reverse the decision of the Court of Special Appeals and remand for a new trial on the issue of damages. Therefore, we do not reach the second question.

STANDARD OF REVIEW Rochkind challenges the trial court’s decision to admit Dr. Hall-Carrington’s expert testimony on the causal relationship between lead exposure and ADHD. “[T]he admissibility of expert testimony is a matter largely within the discretion of the trial court.” Bryant v. State, 393 Md. 196, 203 , 900 A.2d 227 (2006) (citations and internal quotation marks omitted). Thus, we review a trial court’s decision to admit or exclude expert testimony only for an abuse of discretion. Rollins v. State, 392 Md. 455, 499-500 , 897 A.2d 821 (2006). “Such a ruling, however, may be reversed on appeal if it is founded on an error of law or some serious mistake, or if the trial court clearly abused its discretion.” Sippio v. State, 350 Md. 633, 648 , 714 A.2d 864 (1998) (citation and internal quotation marks omitted). Additionally, we will not affirm a decision within the discretion of the trial court if the judge acts in an “arbitrary or capricious manner” or “beyond the letter or reason of the law.” Gary v. Gary, 393 Md. 225, 238 , 900 A.2d 739 (2006) (citation omitted).

DISCUSSION Rochkind argues that Dr. Hall-Carrington’s testimony should have been excluded because it failed to meet the requirements of both Maryland Rule 5-702 and our Frye-Reed standard for testimony based on a novel scientific theory. Rule 5-702 governs the admissibility of all expert testimony. Reed v. State, 283 Md. 374 , 391 A.2d 364 (1978), which adopted the standard set forth by the U.S. Court of Appeals for the D.C. Circuit in Frye v. United States, 293 F. 1013 (D.C. Cir, 1923), added an additional requirement for expert testimony based on a novel scientific method. Under Frye-Reed, a trial court must determine whether a novel scientific method is generally ²⁸⁶ accepted within the relevant scientific community before testimony based on that method can be admitted.

Reed, 283 Md. at 381 , 391 A.2d 364 . Stevenson contends that Dr. Hall-Carrington’s testimony was properly admitted because it clears both hurdles. We begin with Rule 5-702. Maryland Rule 5-702 To determine whether expert testimony “will assist the trier of fact to understand the evidence or to determine a fact in issue,” Rule 5-702 directs a trial court to evaluate “(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 burden rests with the proponent of the expert testimony to demonstrate that these requirements have been met.

Bomas v. State, 412 Md. 392, 417-18 , 987 A.2d 98 (2010). We have interpreted the third prong of this analysis—sufficient factual basis—to include two subfactors: an adequate supply of data and a reliable methodology. Roy v. Dackman, 446 Md. 23, 42-43 , 124 A.3d 169 (2015) (citation omitted); see also Exxon Mobil Corp, v. Ford, 433 Md. 426, 478 , 71 A.3d 105 (2013). To constitute “more than mere speculation or conjecture,” the expert’s opinion must be based on facts sufficient to “indicate the use of reliable principles and methodology in support of the expert’s conclusions.” Ford, 433 Md. at 478 , 71 A.3d 105 (citation and internal quotation marks omitted).

To demonstrate a sufficient factual basis, an expert must establish that her testimony is supported by both subfactors. The data supporting an expert’s testimony “may arise from a number of sources, such as facts obtained from the expert’s first-hand knowledge, facts obtained from the testimony of others, and facts related to an expert through the use of hypothetical questions.” Sippio, 350 Md. at 653 , 714 A.2d 864 (citation omitted). The facts or data that form the basis of ²⁸⁷ the expert’s opinion may be “perceived by or made known to the expert at or before the hearing.” Md. Rule 5-703(a), If the materials the expert relies upon are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject,” they do not need to be admissible in evidence. Id.

In addition to drawing from an adequate supply of data, an expert must use a reliable methodology to reach her conclusions. Exxon Mobil Corp. v. Albright, 433 Md. 303, 418-19 , 71 A.3d 30 (2013) (citation omitted). To satisfy this prong, “an expert opinion must provide a sound reasoning process for inducing its conclusion from the factual data and must have an adequate theory or rational explanation of how the factual data led to the expert’s conclusion.” Ford, 433 Md. at 481 , 71 A.3d 105 (citation and internal quotation marks omitted). We have explained that “for an opinion to assist a trier of fact, the trier of fact must be able to evaluate the reasoning underlying that opinion.” Ross v. Horn.

Auth. of Balt. City, 430 Md. 648, 663 , 63 A.3d 1 (2013). Thus, conclusory statements of opinion are not sufficient—the expert must be able to articulate a reliable methodology for how she reached her conclusion. Ford, 433 Md. at 481-82 , 71 A.3d 105 (citation omitted).

Rochkind argues that Dr. Hall-Carrington’s specific causation testimony does not satisfy Rule 5-702(3) because she did not rule out other potential causes of Stevenson’s ADHD or otherwise demonstrate a reliable methodology for her opinion. 4 ²⁸⁸ Rochkind contends that in lieu of a differential diagnosis, Dr. Hall-Carrington was required to cite epidemiological studies that found a causal link between lead and ADHD. Stevenson responds that Dr. Hall-Carrington’s testimony satisfies Rule 5-702(3) because the studies she relied upon provide extensive support for the conclusion that lead can cause attention deficits in children. Adequate Supply of Data To support her testimony that lead exposure can cause ADHD, Dr. Hall-Carrington relied on the EPA-ISA paper, which explains that “multiple, high quality epidemiologic studies” have revealed “a causal relationship between [lead] exposure and attention decrements, impulsivity, and hyperactivity in children.” U.S. Envtl, Prot. Agency, EPA/600/R-10/075F, Integrated Science Assessment for Lead 4-314 tbl. 4-17, 4-289 (2013) [hereinafter EPA-ISA], https://www.epa. gov/isa/integrated-science-assessment-isa-lead (follow “PDF” hyperlink) [https://perma.cc/ECQ7-TFWS].

During the second trial, Dr. Hall-Carrington testified that these studies found that children with blood lead levels similar to Stevenson’s “can have attention problems, or ADHD, as well as learning disabilities.” When asked if this portion of the EPA-ISA mentions ADHD specifically, she testified, “No, it doesn’t.” She continued, “It basically is listing the symptoms, so to speak, of ADHD.” As to Stevenson’s ADHD specifically, Dr. Hall-Carrington testified that it was caused by her exposure to lead. We have yet to decide the extent to which epidemiological studies can support expert testimony on causation. Thus, we look to other jurisdictions for guidance. In General Electric Co. v. Joiner, 522 U.S. 136 , 118 S.Ct. 512 , 139 L.Ed.2d 508 (1997), the U.S. Supreme Court evaluated expert testimony relying on epidemiological studies for the conclusion that polychlorinated biphenyls (“PCB’s”) can cause lung cancer. 5 ²⁸⁹ Id. at 145-46 , 118 S.Ct. 512 .

The Court held that the studies could not support the expert testimony because none of them had found a causal link between PCB’s and cancer. Id. As to one study that noted that lung cancer deaths among former employees of an electrical plant were higher than expected, the Court explained that “[g]iven that [the researchers] were unwilling to say that PCB exposure had caused cancer among the workers they examined, their study did not support the experts’ conclusion that Joiner’s exposure to PCB’s caused his cancer.” Id. at 145 , 118 S.Ct. 512 . The Court explained that “nothing in ... the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” Id. at 146 , 118 S.Ct. 512 .

Rather, the Court reasoned, a “court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Id.; see also Blackwell v. Wyeth, 408 Md. 575, 606-10 , 971 A.2d 235 (2009) (evaluating whether expert testimony suffered from “analytical gap” under our Frye-Reed framework); Mitchell v. Gencorp Inc., 165 F.3d 778, 782-83 (10th Cir. 1999) (holding that ²⁹⁰ expert testimony suffered from “an analytical gap” when studies only supported a connection between the chemical agent and the plaintiffs leukemia, not a causal relationship (quoting Joiner, 522 U.S. at 146 , 118 S.Ct. 512 )). Dr. Hall-Carrington did not provide a sufficient factual foundation for why she thought the EPA-ISA supported her conclusion that lead exposure can cause ADHD. The studies described in the EPA-ISA finding a causal relationship between lead exposure and attention deficits and hyperactivity do not go that far. The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“the DSM-V’) lists several criteria for an ADHD diagnosis, including that the patient exhibit a minimum number of specific symptoms “for at least [six] months to a degree that is inconsistent with [the patient’s] developmental level and that negatively impacts directly on [the patient’s] social and academic/occupational activities.” 6 Am.

Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 59 (5th ed. 2013) [hereinafter DSM-V]. Dr. Hall-Carrington did not provide any information on this diagnostic criteria or otherwise differentiate between general attention deficits and a clinical ADHD diagnosis. Although research shows that lead exposure can cause general attention deficits and hyperactivity, these lead-caused behaviors do not necessarily indicate that an individual has ADHD because these