Rochkind v. Stevenson

Stanley Rochkind v. Starlena Stevenson, No. 47, September Term, 2019. Opinion by Getty, J. EXPERT WITNESS TESTIMONY—MARYLAND RULE 5-702—SUFFICIENT FACTUAL BASIS—FRYE-REED STANDARD—DAUBERT STANDARD Over four decades ago, the Court of Appeals in Reed v. State, 283 Md. 374 (1978), adopted the “general acceptance” test—first espoused in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)—for the admissibility of expert testimony based on new or novel scientific principles. In 1993, the Supreme Court of the United States, in adopting a new “reliability” standard for admissibility of expert testimony in federal courts, endorsed a nonexclusive list of reliability factors. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

In that case, the Supreme Court held that Federal Rule of Evidence (“FRE”) 702 superseded Frye. The following year, the Court of Appeals adopted Maryland Rule 5-702, a rule modeled after FRE 702, which laid out the elements of admissible expert testimony. Maryland Rule 5-702, however, did not overrule Reed or Frye. Since 1994, the relationship between Frye-Reed and Maryland Rule 5-702 has complicated.

The Court of Appeals adopted the Daubert reliability factors, overruling Frye and Reed. When interpreting Maryland Rule 5-702, Maryland courts, instead of merely looking to the general acceptance in the relevant scientific community, should consider, but are 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. Circuit Court for Baltimore City Case No. 24-C-11-008722 Argued: February 7, 2020 IN THE COURT OF APPEALS OF MARYLAND No. 47 September Term, 2019 STANLEY ROCHKIND v. STARLENA STEVENSON McDonald, Watts, Hotten, Getty, Booth, Biran, Greene, Clayton Jr. (Senior Judge, Specially Assigned), JJ. Opinion by Getty, J. Watts, Hotten, and Greene, JJ., dissent.

Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Filed: August 28, 2020 Suzanne Johnson 2020-08-28 10:47-04:00 Suzanne C. Johnson, Clerk Nearly a century ago, the United States Court of Appeals for the District of Columbia announced a new evidentiary standard by which the admissibility of expert testimony rooted in a novel scientific principle or discovery turned on the “general acceptance” of such evidence “in the particular field in which it belongs.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). In the ensuing fifty years, “almost all of the courts in the country” that considered “the admissibility of scientific evidence” adopted the rationale set out in Frye, including this Court in 1978. Reed v. State, 283 Md. 374, 382 (1978).

Hence, after noting the majority of courts were in agreement that “‘general acceptance’ in the [relevant] scientific community ha[d] come to be the standard,” Frye- Reed was born in Maryland; as we put it, “before a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s” relevant scientific community. Id. at 381 . In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court of the United States upset the applecart of the admissibility of expert scientific testimony. There, the Supreme Court held that Federal Rule of Evidence (“FRE”) 702 superseded Frye’s general acceptance test.

In place of Frye, the Supreme Court provided a list of flexible factors to help courts determine the reliability of expert testimony. A supermajority of states followed the Supreme Court’s lead and replaced their respective Frye standards with Daubert. Maryland, however, did not. In the forty years that followed Reed, Maryland experienced a jurisprudential drift: the Frye-Reed standard announced in 1978 slowly morphed into a “Frye-Reed Plus” standard, implicitly and explicitly relying on and adopting several Daubert principles.

For this reason, Appellant/Cross-Petitioner Stanley Rochkind now squarely poses this question: Should the Court adopt the standard for admitting expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc.? This time, for reasons more fully explained below, we answer this question in the affirmative and choose to adopt Daubert as the governing standard by which trial courts admit or exclude expert testimony. BACKGROUND A. Ms. Stevenson’s Lead Paint Exposure and Medical History.1 In 1991, a 10-month-old Starlena Stevenson and her mother, Charlena Montgomery, moved to 3823 Fairview Avenue (“Fairview”), where they lived for 15 months. At the time, Fairview was owned in part by Mr. Rochkind.

According to Ms. Montgomery, Fairview contained chipping and flaking paint on the windowsills, floors, and front porch. Blood lead level tests taken while Ms. Stevenson was a resident of Fairview revealed that she had a blood lead level of 13 to 14 micrograms per deciliter—a number that dropped to 11 micrograms per deciliter just two months later when she was no longer a resident of that property. Ms. Stevenson, now 29 years old, has a family history of learning disabilities and has faced numerous medical, psychological, and socioeconomic obstacles. She was born to a single teenage mother and has no relationship with her father.

As a child, she was diagnosed with Attention Deficit Hyperactivity Disorder, commonly referred to as ADHD, 1 For a comprehensive background to this case, refer to the Court’s opinion in Rochkind v. Stevenson, 454 Md. 277 , 281–84 (2017) (“Stevenson I”). 2 and several major psychological disorders including oppositional defiance disorder, major depressive disorder, anxiety disorder, and parent-child relationship disorder. Her psychological problems were so severe that in 2004 she engaged in self-mutilation and attempted suicide. Since graduating from high school in 2008, Ms. Stevenson has been sporadically employed, working as a patient transporter for the University of Maryland Medical System, a cashier for Royal Farms, and a babysitter. In each case, Ms. Stevenson struggled to stay employed due to her attentional deficits, hyperactivity, and impulsivity—symptoms which she claims resulted from her exposure to lead paint.

B. The First and Second Trials. In December 2011, Ms. Stevenson filed suit against Mr. Rochkind in the Circuit Court for Baltimore City for negligence and violations of the Maryland Consumer Protection Act. In July 2012, lead testing conducted at Fairview detected lead-based paint on twenty-two interior surfaces and nine exterior surfaces. In preparation for the litigation, Cecilia Hall-Carrington, M.D., a pediatrician, filed a report concluding to “a reasonable degree of medical probability” that Ms. 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, Mr. 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 Ms. Stevenson’s lead exposure or that such exposure caused Ms. Stevenson’s “cognitive deficits,” including, specifically, ADHD. Mr. Rochkind requested 3 a Frye-Reed hearing on each motion. The court denied his requests.

After hearing arguments on the motions in limine, the court denied them as well. The jury returned a verdict in favor of Ms. Stevenson, awarding her $829,000 in economic damages and $534,000 in noneconomic damages. Mr. Rochkind filed a motion for a new trial, or, in the alternative, 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, Mr. 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.” At 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 Ms. 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”).2 She testified 2 U.S. Envtl. Prot. Agency, EPA/600/R–10/075F, Integrated Science Assessment for Lead (2013), https://www.epa.gov/isa/integrated-science-assessment-isa-lead (follow “PDF” hyperlink), archived at https://perma.cc/K28Z-F58P. 4 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, Ms. Stevenson’s counsel implied that Ms. Stevenson’s depression and hallucinations were side effects of her ADHD medications, including Adderall. The jury awarded Ms. 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. Mr. Rochkind filed a motion for a new trial, which the court denied.

On appeal, the Court of Special Appeals held, among other things, that the circuit 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 (2016). The intermediate appellate court also held that the circuit 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 Ms. Stevenson’s ADHD.” Id. at 465 . Mr. Rochkind appealed.

C. Stevenson I. In his first appeal to this Court, Mr. Rochkind argued that Dr. Hall-Carrington’s testimony should have been excluded because it failed to meet the requirements of both 5 Rule 5-702 and Frye-Reed. Rochkind v. Stevenson, 454 Md. 277, 285 (2017) (“Stevenson I”). The Court agreed. Applying a Rule 5-702 analysis, the Court held that “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.” Id. at 290 .

The Court concluded that because “Dr. Hall-Carrington did not cite to any other studies to support her opinion that lead exposure can cause ADHD,” she “cannot be permitted to testify that such a causal connection exists generally, or that lead exposure caused [Ms.] Stevenson’s ADHD specifically.” Id. at 293–94 (footnote omitted). In light of its Rule 5-702 conclusion, the Court declined to address Mr. Rochkind’s argument that the circuit court should have held a Frye-Reed hearing on Dr. Hall-Carrington’s general causation testimony. Id. at 295 . Because the Court found that the circuit court abused its discretion in permitting Dr. Hall-Carrington to opine on the effects of lead exposure based on the EPA-ISA, the Court remanded the case to the circuit court for a new trial on the issue of damages.

Id. at 295–96. D. The Third and Fourth Trials. Before the third trial, Mr. Rochkind filed a motion, once again attempting to exclude Dr. Hall-Carrington’s specific causation opinions. The circuit court denied the motion and request for a pre-trial Rule 5-702 and/or Frye-Reed hearing based on its reading of the opinion in Stevenson I. According to the circuit court, so long as Dr. Hall-Carrington did not actually use the word “ADHD,” she could opine that Ms. Stevenson’s attentional 6 deficits, hyperactivity, and impulsivity problems were caused by lead exposure. 3 Despite the ruling, Dr. Hall-Carrington testified that lead exposure can cause “ADHD,” causing the circuit court to declare a mistrial.

Not to be deterred, in trial number four, Dr. Hall-Carrington testified that lead exposure caused Ms. Stevenson’s attentional deficits, hyperactivity, and impulsivity problems, once again relying solely on the epidemiological studies cited in the EPA-ISA. This time, however, Dr. Hall-Carrington did not mention “ADHD,” specifically. The jury awarded Ms. Stevenson $1 million in economic damages and $2 million in non-economic damages. E. Post-Trial Motions and Appeal.

Mr. Rochkind filed a Motion for New Trial, Judgment Notwithstanding the Verdict (“JNOV”), and Remittitur. The circuit court denied Mr. Rochkind’s motion for a new trial and JNOV but reduced damages pursuant to the statutory cap. Mr. Rochkind appealed to the Court of Special Appeals. While that appeal was pending, Ms. Stevenson filed a Petition for Writ of Certiorari and Mr. Rochkind filed a Cross-Petition.

We granted both petitions to answer the following questions: (1) Should the Court adopt the standard for admitting expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)? (2) Was [Ms. Stevenson’s] medical causation expert’s specific causation opinion admissible in this case under Rule 5-702, applying the standard set forth in Daubert? 3 Mr. Rochkind submitted additional briefing and a formal offer of proof to preserve the issue for appeal. 7 (3) Was it error for the trial court to allow [Ms. Stevenson’s] medical causation expert to testify that [Ms. Stevenson] has attentional and behavioral injuries without providing a reliable method for attributing those injuries to lead exposure when [Ms. Stevenson] had already been diagnosed with ADHD? (4) Was it error for the trial court to allow [Ms. Stevenson’s] medical expert to render specific causation opinions based on general epidemiological studies? STANDARD OF REVIEW “[T]he admissibility of expert testimony is a matter largely within the discretion of the trial court, and its action in admitting or excluding such testimony will seldom constitute ground for reversal.” Roy v. Dackman, 445 Md. 23 , 38–39 (2015).

When the basis of an expert’s opinion is challenged pursuant to Maryland Rule 5-702, the review is abuse of discretion. Blackwell v. Wyeth, 408 Md. 575, 618 (2009). “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 (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.” Garg v. Garg, 393 Md. 225, 238 (2006) (citation omitted). DISCUSSION A. Parties’ Contentions.

In Stevenson I, we held that it was error to allow Dr. Hall-Carrington to testify that lead exposure generally causes ADHD and therefore error to testify that lead exposure specifically caused Ms. Stevenson’s ADHD. 454 Md. at 293–96. On remand, the circuit 8 court ruled that Dr. Hall-Carrington was allowed to testify that Ms. Stevenson’s attentional deficits, hyperactivity, and impulsivity—some of the symptoms of ADHD—were specifically caused by lead exposure as long as she did not use the term “ADHD.” The circuit court did not base its ruling on Rule 5-702 or Frye-Reed. It based its ruling solely on its reading of this Court’s opinion in Stevenson I. As Appellant/Cross-Petitioner, Mr. Rochkind initially argues that the Court should adopt the Daubert standard, apply it to this case, and find that Dr. Hall-Carrington’s specific causation opinion is inadmissible under Rule 5-702. Ms. Stevenson responds that the Court should not adopt Daubert but that even under Daubert, Dr. Hall-Carrington’s specific causation opinion would be admissible.

Understandably, Mr. Rochkind, in support of Daubert, and Ms. Stevenson, in opposition, each list a host of pros and cons to adopting Daubert. As Appellee/Petitioner, Ms. Stevenson argues that under current expert admissibility jurisprudence, it was not error for the circuit court to allow Dr. Hall- Carrington to testify that Ms. Stevenson has a physical brain injury attributable to lead exposure that manifested in symptoms of attentional deficits, hyperactivity and impulsivity. To support this position, Ms. Stevenson maintains that Dr. Hall-Carrington provided a reliable methodology consistent with Maryland tort law’s “substantial factor” causation standard. Ms. Stevenson lastly argues that the circuit court did not err in allowing specific causation opinions based on general epidemiological studies.

Mr. Rochkind responds that even under Frye-Reed, it was error for the circuit court to allow Dr. Hall-Carrington to testify that Ms. Stevenson’s attentional and behavioral 9 problems were caused by lead exposure because (1) Ms. Stevenson had been clinically diagnosed with ADHD and (2) Dr. Hall-Carrington did not have a reliable methodology for attributing those problems to lead exposure as opposed to ADHD. Mr. Rochkind further asserts that it was error for Dr. Hall-Carrington to opine that lead exposure caused Ms. Stevenson’s attentional deficits, hyperactivity, and impulsivity problems based on a document that states it cannot be applied to individuals. In essence, these are the same arguments that Mr. Rochkind brought in Stevenson I, this time in the context of attentional deficits, hyperactivity, and impulsivity as opposed to “ADHD,” specifically. In the lead up to the Daubert debate, we begin with the legal background.

B. Legal Background: Frye-Reed and Maryland Rule 5-702. Maryland courts admit expert testimony through two channels—the Frye-Reed standard and Maryland Rule 5-702. Nominally, the relationship between the channels is simple: to be admissible, expert testimony discussing novel scientific theories must meet both the minimum threshold Frye-Reed standard and the Rule 5-702 requirements, but expert testimony addressing non-novel scientific evidence must only meet the requirements of Rule 5-702. Often, however, the relationship between the tests is not so simple.

For example, what test (or tests) applies when “the underlying data and methods for gathering this data are generally accepted in the scientific community but applied to support a novel theory[?]” Blackwell, 408 Md. at 596 . Despite decades of jurisprudence on the topic, the Frye-Reed standard—and its relationship to Maryland Rule 5-702—holds a confusing grip on Maryland bench and bar. What was originally set out in 1978 as a simple test for admissibility has become 10 increasingly complex with the development of Daubert case law. We begin by chronicling the Frye-Reed “greatest hits.” 1.

From Frye to Daubert. In Reed v. State, 283 Md. 374 (1978), this Court, like most state appellate courts to consider the issue,4 adopted the “general acceptance” test first espoused in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923): for expert testimony predicated on a novel scientific principle or discovery to be admissible, the scientific principles or discoveries must be generally accepted in the relevant scientific community. For decades thereafter, Maryland appellate courts applied Frye-Reed only in novel scientific evidence cases. See, e.g., Kelley v. State, 288 Md. 298, 302 (1980) (polygraph); State v. Collins, 296 Md. 670 , 678–79 (1983) (hypnosis); U.S. Gypsum Co. v. Mayor & City Council of Balt., 336 Md. 145 , 182– 83 (1994) (surface dust sampling in asbestos cases); Schultz v. State, 106 Md. App. 145 , 150–57 (1995) (horizontal gaze nystagmus field sobriety tests); Keene Corp., Inc. v. Hall, 96 Md. App. 644 , 652–60 (1993) (polarized light microscopy in asbestos cases).

Meanwhile, seventy years after Frye, the Supreme Court of the United States adopted a new standard for admissibility of expert testimony in federal courts. In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court held that FRE 702 superseded Frye. 509 U.S. 579 (1993). At the time, FRE 702 provided that “a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify . . . in the form of an opinion or otherwise” about “scientific, technical, or other specialized knowledge 4 See Reed v. State, 283 Md. 374, 382 (1978) (collecting cases). 11 [that] will assist the trier of fact to understand the evidence or to determine a fact in issue.” The Supreme Court read FRE 702 to mandate a threshold determination as to whether the “scientific testimony” at issue is “not only relevant, but reliable.” Id. at 589. On reliability, the Supreme Court provided a non-exclusive list of factors that may be pertinent: (1) “whether a theory or technique . . . can be (and has been) tested”; (2) “whether [it] has been subjected to peer review and publication”; (3) “the known or potential rate of error”; (4) “the existence and maintenance of standards controlling the technique’s operation”; and— harkening back to Frye—(5) whether it is “general[ly] accepted” within the relevant scientific community.

Id. at 593–94. 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. Id. at 596. Four years later, in General Electric Co. v. Joiner, the Supreme Court scrutinized epidemiological studies regarding a cause of lung cancer. 522 U.S. 136 , 145–46 (1997).

The Joiner Court held that because none of the studies provided a causal link between the chlorine compound and lung cancer, “there is simply too great an analytical gap between the data and the opinion proffered.” Id. at 146 . The studies therefore did not support the expert testimony in that case. Joiner and the “analytical gap” analysis, as discussed below, is now a critical piece of Maryland’s Frye-Reed analysis. To complete the “Daubert 12 trilogy,”5 the Supreme Court held in Kumho Tire Co. v. Carmichael, that “Daubert’s general holding . . . applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.” 526 U.S. 137, 141 (1999).6 A supermajority of jurisdictions have departed from Frye in favor of the flexible Daubert approach.7 Maryland stands strong amongst the minority jurisdictions that adhere to Frye or a modified Frye test.8 Maryland’s Frye-Reed standard, as it currently stands, is 5 See, e.g., Motorola Inc. v. Murray, 147 A.3d 751 , 753–56 (D.C. 2016) (describing—as others have before it—Daubert, Joiner, and Kumho Tire, as the “Daubert Trilogy”). 6 In 2000, the FRE were amended (in response to Daubert and its progeny, see Fed. R. Evid. 702 advisory committee’s note) to include language requiring expert testimony to be based on “sufficient facts or data.” The FRE were restyled in 2011 without substantive changes.

FRE 702 now reads: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. 7 See Savage v. State, 455 Md. 138 , 178 n.3 (2017) (Adkins, J., concurring) (listing 38 jurisdictions that “have either explicitly adopted Daubert or held that its factors are persuasive in evaluating expert witness testimony”). One additional state, Florida, adopted Daubert by court order in 2019. In re: Amendments to Fla. Evidence Code, 278 So.3d 551 (Fla. 2019). 8 See id. at 179 n.4 (listing jurisdictions that apply a traditional or modified Frye analysis). 13 broader than it used to be.

Some Maryland courts have suggested that Frye-Reed has “drift[ed]” toward Daubert in two ways: first, that courts have used Frye-Reed “not only to evaluate scientific methods, but also to assess scientific conclusions”; and second, that courts have applied Frye-Reed to established, as well as novel, scientific methods. Savage v. State, 455 Md. 138 , 180–81 (2017) (Adkins, J., concurring); see Burks v. Allen, 238 Md. App. 418 , 454–59 (2018); Sissoko v. State, 236 Md. App. 676 , 708–09 (2018). 2. The First “Drift”: Scientific Conclusions. This Court has modified the reach of Frye-Reed to include not only scientific methods, but also scientific conclusions.

First indicated in Wilson v. State, 370 Md. 191 (2002) (holding that an expert’s conclusion that SIDS deaths in a single family are genetically related was inadmissible even when based on a reliable statistical method—the “product rule”—because there was not general agreement in the medical community for such a conclusion), the Court expanded Frye-Reed in a trio of cases. Montgomery Mut. Ins. Co. v. Chesson, 399 Md. 314 (2007) (“Chesson I”); Blackwell, 408 Md. at 575 ; Chesson v. Montgomery Mut.

Ins. Co., 434 Md. 346 (2013) (“Chesson II”). In Chesson I, the Court analyzed the admissibility of an expert medical opinion that exposure to mold causes “sick building syndrome.” 399 Md. at 317 . Petitioners argued that the circuit court erred when it refused to hold a Frye-Reed hearing on the admissibility of the expert testimony.

Respondents countered that expert opinions concerning the cause or origin of a person’s condition are not subject to Frye-Reed. In essence, because the 14 methods of the expert were not novel, respondents believed that a Frye-Reed analysis was unnecessary. We disagreed, noting that in cases in which the proper choice of [scientific] techniques was dependent on an underlying scientific phenomenon or principle, a court must engage in Frye-Reed analysis to determine whether that phenomenon or principle is generally accepted in the scientific community and whether the proper scientific tests were used to reach the expert’s conclusions. Id. at 329–30 (citing Wilson, 370 Md. at 203 ).

We held that the expert, offering a novel medical conclusion based on underlying generally accepted medical principles, was therefore subject to a Frye-Reed hearing. To reach that conclusion, we distinguished CSX Transportation, Inc. v. Miller, 159 Md. App. 123 (2004) and Myers v. Celotex Corp., 88 Md. App. 442 (1991). In those cases, the Court of Special Appeals held that a Frye-Reed hearing was unnecessary to admit a medical expert opinion regarding the origin of a patient’s illness. See CSX, 159 Md. App. at 187 (etiology of arthritis); Myers, 88 Md. App. at 458–59 (asbestos causing cancer).

The difference between those cases and Chesson I, we noted, was that CSX and Myers involved generally accepted medical conclusions based on generally accepted medical principles. Chesson I, 399 Md. at 331–32. The “drift” continued in Blackwell, 408 Md. at 575 , when we adopted the “analytical gap” concept discussed by the Supreme Court in Joiner, 522 U.S. at 146 . There, we conducted a Frye-Reed analysis of the supposed causal relationship between childhood vaccines and autism.

The “essence” of the issue before us was whether the Frye-Reed test applied “to the analysis undertaken by an expert where the underlying data and methods for gathering this data are generally accepted in the scientific community but applied to 15 support a novel theory” of medical causation. Blackwell, 408 Md. at 596 . We drew from federal Daubert decisions because we never “had occasion to scrutinize the analytical phase of a scientific process underlying a novel scientific opinion, where the underlying data may otherwise be generally accepted in the scientific community.” Id. at 604–05. Because generally accepted methodology “must be coupled with generally accepted analysis in order to avoid the pitfalls of an ‘analytical gap,’” we concluded that the medical expert opinion was not generally accepted in the scientific community notwithstanding a basis in generally accepted methods.

Id. at 608–09. We reaffirmed the “analytical gap” concept in Chesson II, noting that although “[g]eneral acceptance does not equate to unanimity of opinion within a scientific community . . . [a] trial judge [] cannot admit expert testimony based on scientific methodology without consideration of whether the analysis itself is flawed and posits an ‘analytical gap.’” 434 Md. at 356–57 (quoting Blackwell, 408 Md. at 608 ). On appeal from the remand in Chesson I, we held that the “differential diagnosis”9 process—a 9 See Chesson I, 434 Md. at 350 n.2 (“Differential diagnosis, a process critiqued in Blackwell[] to prove that thimersol caused autism, was characterized in that case as ‘a process of elimination, [and] defined as, “[t]he process of weighing the probability of one disease versus that of other diseases possibly accounting for a patient’s illness. The differential diagnosis of rhinitis (a runny nose) includes allergic rhinitis (hayfever), the abuse of nasal decongestants and, of course, the common cold.”’”). 16 generally accepted diagnostic method—the expert used to reach his causation conclusion, was a distortion of that methodology.

The “analytical gap” concept was on display recently in Savage, 455 Md. at 138 . In that murder case, the defendant sought to bolster his theory of self-defense by expert testimony. The expert would have testified that prior traumatic brain injuries could have caused the defendant to perceive non-threatening actions as threatening. After a Frye-Reed hearing, the circuit court excluded the testimony.

On appeal, we affirmed, holding that the expert’s “analysis did not bridge the ‘analytical gap’ between the data available to him and his ultimate conclusions.” Id. at 158 . We concluded that the expert’s ultimate opinions, that “under such conditions of chaos and stress” [the defendant] “would be more likely to perceive himself to be facing an imminent threat and have greater difficulty controlling his reactions[,]” and that “[defendant] views the world through an untrusting and suspicious perspective, and often is hyper-vigilant to possible threats[,]” are conclusory. *** [W]e are unable to conclude that [the expert] adequately “connected the dots” between the empirical foundation from his study of [defendant] and the [expert’s] ultimate opinions. We emphasize that, in passing on whether there exists an “analytical gap” between the data and the expert’s conclusions, we may take as given the general acceptance of the expert’s methods. Id. at 164, 170 .

Judge Sally D. Adkins, concurring in Savage, argued that the Court should adopt the Daubert standard because the “check for an ‘analytical gap’ has muddied our approach to expert testimony.” Id. at 186 (Adkins, J., concurring). In her view, Maryland Rule 5- 17 702 “serves as a sufficient bulwark for preventing shoddy scientific testimony.” We discuss Rule 5-702 in greater detail below. 3. The Second “Drift”: New and Old Methods. In Reed, we adopted the Frye standard, stating that “if a new scientific technique’s validity is in controversy in the relevant scientific community, or if it is generally regarded as an experimental technique, then expert testimony based upon its validity cannot be admitted into evidence.” 283 Md. at 381 (emphasis added).

In practice, however, Maryland courts have liberalized the standard, applying Frye-Reed “to testimony based on any scientific principle—new or old.” Savage, 455 Md. at 180 (Adkins, J., concurring). For example, in Clemons v. State, we defined a Frye-Reed standard that “makes evidence emanating from a novel scientific process inadmissible absent a finding that the process is generally accepted by the relevant scientific community.” 392 Md. 339, 344, 365 (2006) (emphasis added). Despite purportedly limiting the standard to “novel scientific process[es],” we applied Frye-Reed to comparative bullet lead analysis10—a forty-year-old and widely used scientific process. We concluded that the timeworn process did not satisfy Frye-Reed “because several fundamental assumptions underlying the process are not generally accepted by the scientific community.” Id. at 372 .

Similarly, in State v. Baby, we held that expert testimony regarding rape trauma syndrome was subject to Frye-Reed despite acknowledging that the syndrome was first recognized in 1974. 404 10 Comparative bullet lead analysis is “a three-step process that involves the comparison of the elemental composition of bullets in an effort to determine whether different bullets originated from the same vat of lead.” Clemons v. State, 392 Md. 339, 347 (2006). 18 Md. 220, 271 (2008). “Thus, like Daubert, we have implicitly recognized that a trial judge’s gatekeeping function should not be limited to new scientific theories—old ‘junk science’ should be kept out of our courts as well.” Savage, 455 Md. at 180 (Adkins, J., concurring). Still, “[d]espite our repeated assertions that Frye-Reed applies only to new scientific methods, we have never defined what constitutes a new or novel scientific method. We have never held that a scientific method is not subject to Frye-Reed because it is not new.” Id. at 181 n.5 (citations omitted) (citing Chesson I, 399 Md. at 327 (explaining that Frye- Reed requires a party to “establish first that any novel scientific method is reliable and accepted generally in the scientific community before the court will admit expert testimony based upon [it]” (citation omitted)); Clemons, 392 Md. at 363 (explaining that Reed adopted a standard for the admission of “novel scientific techniques”); Wilson, 370 Md. at 201 (“[P]rior to the admission of expert testimony based on the application of new scientific techniques, it must be first established that the particular scientific method is itself reliable.” (citation omitted))). It is also well established that trial courts may take judicial notice when a scientific method is broadly and generally accepted.

Chesson I, 399 Md. at 327 ; Wilson, 370 Md. at 201 (“Where the validity and reliability of a scientific technique is so broadly and generally accepted within the scientific community, as is the case of ballistic tests, blood tests, and the like, a trial court may take judicial notice of its reliability.” (citation omitted)). Given that “general acceptance” is the hallmark of Frye-Reed, our suggestion that trial courts take judicial notice of generally accepted methods implies that all scientific testimony is, in 19 some sense, subject to Frye-Reed. In Dixon v. Ford Motor Co., for example, we stated that a Frye-Reed analysis is required “only when the proposed expert testimony involves a ‘novel scientific method,’” yet we took judicial notice of the scientific method’s general acceptance: We may take judicial notice from our own decisions that the scientific community accepts the proposition that exposure to asbestos may cause mesothelioma. That is not a novel scientific principle.

More than 20 years ago . . . we flatly rejected the assertion that mesothelioma cannot be caused by exposure to chrysotile asbestos. Thus, [the expert’s] opinion that exposure to chrysotile asbestos in Ford brakes may cause mesothelioma also is not a novel scientific principle. 433 Md. 137 , 149–50 (2013) (footnote omitted). We acknowledge, as we have done on several occasions, that the modern Frye-Reed standard is not what it was when we adopted the test in 1978. 4. Maryland Rule 5-702.

Upon recommendation of the Rules Committee, this Court adopted Rule 5-702 in 1994, a year after the Supreme Court issued the opinion in Daubert: Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (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. In adopting our counterpart to FRE 702, we blessed a Committee Note that stated that Rule 5-702 was not intended to overrule Reed or other cases adopting the Frye standard, and that “[t]he required scientific foundation for the admission of novel scientific techniques 20 or principles is left to development through case law.” Comm. Note to Md. Rule 5-702; see Burral v. State, 352 Md. 707, 738 (1999).

In Stevenson I, we closely examined the third prong of Rule 5-70211—sufficient factual basis. 454 Md. at 286 . Judge Adkins, writing for the Court, noted that “sufficient factual basis” includes two sub-elements: (1) an adequate supply of data; and (2) a reliable methodology. Id. (citing Roy v. Dackman, 445 Md. 23 , 42–43 (2015); Exxon Mobil Corp. v. Ford, 433 Md. 426, 478 (2013)).

Absent either element, the opinion is “mere speculation or conjecture.” Id. (quoting Exxon, 433 Md. at 478 ). Because we held that Dr. Hall- Carrington’s causation opinion lacked an adequate supply of data, we did not reach the reliable methodology element. We also declined to address the second question on certiorari—whether the circuit court should have held a Frye-Reed hearing—because our Rule 5-702 conclusion was dispositive.

See Sissoko, 236 Md. App. at 713 (discussing Stevenson I and noting that “expert opinion testimony that does not satisfy the criteria for admissibility under Rule 5-702 is not admissible even if it satisfies the Frye-Reed general acceptance test”). One month later, Judge Adkins issued her concurrence in Savage. On Rule 5-702, Judge Adkins pointed to Blackwell to describe the duplicity of applying Frye-Reed to Rule 5-702: In Blackwell’s Frye-Reed discussion, we acknowledged that “reliability . . . affect[s] whether a scientific theory is accepted in the field in which it is offered.” 408 Md. at 584 , 971 A.2d 235 . We turned to federal 11 Like the present case, the first two prongs of the Rule 5-702 analysis—witness qualification and appropriateness—were not at issue in that appeal. 21 case law to define the contours of this term because of Daubert’s emphasis on reliable expert testimony.

Id. at 604–07, 971 A.2d 235, 260 . We concluded that the expert’s testimony was inadmissible under Frye-Reed, in part, because his research was not “based upon sound methodology.” Id. at 609 , 971 A.2d 235, 260 . Thus, our evaluation of whether a conclusion was generally accepted included inquiry as to whether the methodology used was reliable—one of the 5-702(3) subfactors. See Roy, 445 Md. at 42–43, 124 A.3d 169 .

Accordingly, to determine the admissibility of expert testimony under our direction in Blackwell, a trial court may have to analyze the reliability of an expert’s methodology twice—once under Frye-Reed and again under Rule 5-702(3). Adopting the Daubert approach and confining our evaluation of scientific expert testimony to the requirements of Rule 5- 702 would eliminate this repetition. Savage, 455 Md. at 184 (Adkins, J., concurring) (omissions and alterations in original). Thus, according to the concurrence, “[t]he evolution of our Frye-Reed doctrine to both maintain the general acceptance test and include a check for an “analytical gap” has muddied our approach to expert testimony.” Id. at 186 .

Judge Adkins suggested that the Court use its discretion under Rule 8-131(a)12 to adopt Daubert. In doing so, she distinguished Savage from the majority opinion in Stevenson I: Acknowledging our implicit adoption of Daubert would not only be “desirable to guide the trial court” in this case but would also provide clarity to Maryland courts. See Md. Rule 8-131(a). Furthermore, unlike [Stevenson I], our most recent case addressing the admissibility of scientific expert testimony, we can only dispose of the case at hand by applying Frye-Reed.

In [Stevenson I], we declined to address the parties’ arguments regarding Frye-Reed and instead held that the expert testimony was inadmissible under Rule 5-702 because the petitioner had appealed the trial court’s determination as to both standards. Here, Savage only challenges the exclusion of [the expert’s] testimony under Frye-Reed. 12 “Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.” Md. Rule 8-131(a). 22 Savage, 455 Md. at 175 n.1 (Adkins, J., concurring) (citation omitted). Most recently, in Sugarman v. Liles, another opinion authored by Judge Adkins, we revisited the same EPA-ISA papers at issue in Stevenson I and the present case. 460 Md. 396 (2018). Unlike Stevenson I, we held that the EPA-ISA supplied a sufficient factual basis under Rule 5-702(3) for a pediatrician’s general causation opinion that elevated blood lead levels can cause deficits in auditory encoding and processing speed.

In so holding, we discussed extrajurisdictional cases that address the “analytical gap” concept, including King v. Burlington North Santa Fe Railroad Co., 762 N.W.2d 24 (Neb. 2009). In that case, the Supreme Court of Nebraska reversed a trial court order excluding an expert’s opinion that exposure to diesel exhaust fumes had caused the plaintiff’s late husband to develop a blood cancer, because the expert relied upon epidemiological studies that did not “draw definitive conclusions on causation.” King, 762 N.W.2d at 48 . In Sugarman, we cited King with approval, explaining that an expert may rely on scientific studies that do not make “definite conclusions of a causal relationship,” so long as they are “qualified to interpret and extrapolate from the relevant studies.” Sugarman, 460 Md. at 427 . Thus, the pediatrician expert witness was permitted to extrapolate from the EPA-ISA that exposure to lead can cause attention decrements to opine that it also could cause slower processing speed and auditory encoding deficits, which were “factors of attention.” Id. at 428 .

Once again, we distinguished that case from Stevenson I: There, the expert lacked “epidemiological studies—or other reliable evidence—demonstrating a causal link between lead exposure and ADHD” but nonetheless offered a causation opinion. A causal relationship between 23 lead exposure and some symptoms of ADHD did not warrant testimony linking the two. The symptoms, we observed, were present in a “variety of other disorders and learning disabilities.” ADHD, however, has precise diagnostic criteria and requires ruling out other behavioral disorders. Further, the EPA-ISA emphasized other potential confounding factors that undermined Dr. Hall-Carrington’s opinion.

The EPA-ISA could not support her opinion because the studies discussed therein “only reveal an association between lead exposure and ADHD.” Her opinion lacked an adequate factual basis because the source did not logically support her conclusion. Here, by contrast, the EPA-ISA identified a causal relationship between attention decrements and exposure to lead. Unlike in [Stevenson I], none of the experts opined that Liles has a diagnosable learning disability or behavioral disorder. [The pediatrician] explained lead’s impact on a developing brain, including the way it affects attention. She offered the opinion that Liles suffered from the kind of generalized attention deficits the EPA-ISA identified as being caused by lead exposure.

Because [the pediatrician’s] opinion testimony does not suffer the same defects as were present in [Stevenson I], we hold that she had a sufficient factual basis to offer an opinion regarding general causation. Id. at 428–29 (emphasis and citations omitted). The dissent in Sugarman disagreed, instead suggesting that “this case suffers a somewhat distinct, but nonetheless significant, analytical gap as was present in” Stevenson I. Id. at 450 (Getty, J., concurring in part and dissenting in part). We have therefore held, under our Frye-Reed jurisprudence, that the EPA-ISA epidemiological studies can provide a sufficient factual basis to offer an expert opinion as to general causation of attention decrements.

Regardless of whether we apply Daubert or the modern Frye-Reed standard, the question then becomes: is this specific causation case a Stevenson I case, where the analytical gap was too vast, or a Sugarman case where the analytical gap was sufficiently bridged? We do not answer that question, but remand the case for a hearing on the subject applying the Daubert standard we adopt today. 24 C. We Adopt Daubert. Maryland’s “jurisprudential drift” has led to a duplicative analytical process and “muddied” the waters of our approach to expert testimony. Savage, 455 Md. at 186, 187 (Adkins, J., concurring).

Instead of perpetuating a process wherein expert testimony must pass through Frye-Reed and Rule 5-702, we implement a single standard by which courts evaluate all expert testimony: Daubert. Courts, practitioners, and scholars alike have grappled with the advantages and disadvantages of the Daubert standard over the decades since the Supreme Court first articulated the factored test. Because our decision today is a substantial departure from our Frye-Reed jurisprudence, we explain the reasons that guide us. 1. The Circuit Court Abused Its Discretion.

The circuit court did not contemplate any of the above legal considerations. Instead, the court relied solely on the opinion in Stevenson I. The determination in Stevenson I that Dr. Hall-Carrington could not testify that lead generally or specifically caused ADHD— and the analysis thereto—led the circuit court to properly conclude that Dr. Hall-Carrington could testify that lead can cause attention decrements, hyperactivity, and impulsivity in the general population. But it does not follow, merely based on the Stevenson I opinion, that the EPA-ISA supports a finding that lead specifically caused Ms. Stevenson’s attention decrements, hyperactivity, and impulsivity. As a practical matter, the circuit court erred by refusing to hold a Rule 5-702 hearing at which Dr. Hall-Carrington could explain, and Mr. Rochkind could cross-examine, the specific causation methodology that is the subject of this appeal.

Rather than conduct an 25 evidentiary hearing to analyze the methodology employed by Dr. Hall-Carrington, the circuit court stated that based on its reading of the opinion in Stevenson I that Dr. Hall- Carrington could render the same opinions, as in Stevenson I, so long as she did not use the term “ADHD.” Mr. Rochkind objected, noting that (1) the Court never reached the specific causation issue in Stevenson I; and (2) Dr. Hall-Carrington had no methodology to render such an opinion. Mr. Rochkind thereafter filed additional briefing and an extensive written offer of proof in support of his objection. When the court denied the motion for a pretrial hearing, Mr. Rochkind was compelled to challenge Dr. Hall-Carrington’s methodology in front of the jury. This placed Mr. Rochkind in exactly the situation a pretrial hearing is designed to prevent.

See Blackwell, 408 Md. at 591 , 594 n. 13 (describing pre-trial evidentiary hearing contemplated under Maryland law to challenge expert testimony and reasons therefor); Savage, 455 Md. at 170 (noting that experts should not be connecting the dots in front of jury). The circuit court abused its discretion by not holding a Rule 5-702 hearing. Given that we are remanding the case so that the circuit court can conduct a hearing pursuant to Maryland Rule 5-702, as part of the remand, the circuit court should consider the Daubert standard adopted herein. 26 2. The “Right” Case.

Ms. Stevenson maintains that the instant case is not the “appropriate catalyst” for this Court to abandon the Frye-Reed standard in favor of the Daubert standard. We disagree.13 The standard by which expert testimony is evaluated is judicially determined by this Court. Within our purview, as charged by the Maryland Constitution, is our duty to “adopt rules and regulations concerning the practice and procedure” in Maryland courts. 14 With this duty, we have adopted Maryland Rule 5-702. When this Court effects a change to the common law, as it does today, the Maryland Rules undergo revision to reflect such change.

We are not bound to the Rules when the need to alter common law arises. Indeed, the 1994 13 Notwithstanding the fact that this Court granted certiorari to answer the very question of whether to adopt Daubert, the Dissent also argues that “[t]his case is plainly not the case in which to entertain” adopting Daubert. Dissenting Slip Op. at 14. The Dissent relies on an interaction between the circuit court and Mr. Rochkind’s counsel to conclude that “Rochkind’s counsel explicitly agreed with the circuit court that a Frye-Reed hearing was not appropriate under the[se] circumstances.” Id.

After a full reading of the record, however, we are satisfied that up until that point, Mr. Rochkind sufficiently pursued a Frye- Reed hearing. Mr. Rochkind presented his Frye-Reed arguments several times over. Prior to the interaction quoted by the Dissent, Mr. Rochkind’s counsel filed a motion and argued several times at the motions hearing that a Frye-Reed hearing was needed. Only at a later hearing did counsel for Mr. Rochkind concede that a Rule 5-702 hearing would be sufficient.

We therefore find unavailing the Dissent’s argument that the principles of Frye- Reed were not before the circuit court because “it was clear that [the] case was decided under Maryland Rule 5-702, not under Frye-Reed.” Id. at 15. A “Frye-Reed hearing was not appropriate” only because the circuit said so, not for lack of preservation. See id. at 14; see also Md. Rule 8-131(a). 14 Md. Const., Art. IV, Section 18(a) (“The Court of Appeals from time to time shall adopt rules and regulations concerning the practice and procedure in and the administration of the appellate courts and in the other courts of this State, which shall have the force of law until rescinded, changed or modified by the Court of Appeals or otherwise by law.”). 27 Committee Note accompanying Rule 5-702 confirms as much: “[t]he required scientific foundation for the admission of novel scientific techniques or principles is left to development through case law.” The time has now come to plot a new course, overruling our Frye-Reed jurisprudence and finding Daubert factors persuasive, with regard to the analysis of expert testimony. Surely, our decision today implicates the doctrine of stare decisis. “Latin for ‘to stand by things [that are] decided,’” stare decisis ordinarily requires that a court “follow earlier judicial decisions when the same points arise again in litigation.” Kazadi v. State, 467 Md. 1, 27 (2020) (quoting Black’s Law Dictionary (11th ed. 2019)).

However, the doctrine “is not an inexorable command.” Savage, 455 Md. at 186 (Adkins, J., concurring) (quoting Conover v. Conover, 450 Md. 51, 65 (2016)). This Court has articulated two circumstances where a departure from the doctrine of stare decisis is permissible: “(1) when the prior decision is clearly wrong and contrary to established principles[;] or (2) when the precedent has been superseded by significant changes in the law or facts.” Id. (internal quotation marks omitted) (quoting Conover, 450 Md. at 65 ). Over the last forty years, Maryland’s appellate courts have considerably modified the Frye-Reed standard.

The Frye-Reed of 1978 is markedly different than the “Frye-Reed Plus” of 2020. With Daubert, and eventually Joiner and Kumho Tire, the Supreme Court disavowed the Frye standard for the more flexible Daubert approach. A supermajority of our sister 28 jurisdictions followed suit. Clearly, a significant change in the law has occurred, permitting us to depart from stare decisis and adopt the Daubert standard in this instance.15 15 The Dissent and Ms. Stevenson argue that if Maryland is to adopt Daubert, the Rules Committee, rather than this Court, should be the body to do so.

Yet, we resist the call to refer this matter to the Rules Committee for several reasons. As discussed above and noted by the 1994 Committee Note to Rule 5-702, “[t]he required scientific foundation for the admission of novel scientific techniques or principles is left to development through case law.” Of course, at that time, the Rules Committee was referring to the Frye- Reed standard. Yet, in the same Committee Note, the Rules Committee explicitly acknowledged Daubert, and made sure to indicate that Rule 5-702 is not intended to overrule Frye-Reed. We glean from the Note that the Rules Committee considered Daubert in 1994, but left it to this Court to change the standard applied to scientific testimony.

Adopting Daubert is in line with our longstanding view that Maryland’s courts look to federal cases when interpreting analogous federal rules. See Bartell v. Bartell, 278 Md. 12, 18 (1976). Rule 5-702 was adopted in 1994 to track FRE 702. See Hutton v. State, 339 Md. 480 , 494 n.10 (1995); see also Wood v. Toyota Motor Corp., 134 Md. App. 512 , 523 n.13 (2000) (observing that Maryland’s “case law is consistent with the [2000] amendments to Rule 702 of the Federal Rules of Evidence,” which expressly adopted Daubert).

In part, the Dissent suggests that the Rules Committee is the more appropriate forum to study the potential impact the Daubert standard will have on “African American people, people of color, or people of limited financial means.” Dissenting Slip Op. at 18; see 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). We do not reject the seriousness of this contention. We do, however, note other scholarly research coming to the opposite conclusion. See Edward K. Cheng & Albert H. Yoon, Does Frye or Daubert Matter?

A Study of Scientific Admissibility Standards, 91 Va. L. Rev. 471 , 503 (2005) (“[A] state’s choice of scientific admissibility standard does not have a statistically significant effect . . . [and] a state’s adoption of Frye or Daubert makes no difference in practice.”). This Court is well suited to weigh the advantages and disadvantages of modifying our approach to any area of the law—as we often do. That this change implicates our interpretation of the Maryland Rules does not necessitate a referral to the Rules Committee. 29 3.

Daubert: Generally Accepted by the Supermajority of Jurisdictions. Judge Adkins’ concurring opinion in Savage blazed the trail for this Court’s adoption of the Daubert standard. Considering the breadth of scholarly arguments supporting and discounting the Daubert standard, and Maryland’s prolonged—albeit nominal at times—adherence to the Frye-Reed standard, we now explain our decision to join the supermajority of sister states and the federal courts on this issue. We recognize that this Court’s jurisprudence has implicitly embraced portions of the Daubert standard in the Frye-Reed analysis without expressly stating that fact.

See supra at 14–20. Recognizing our “drift,” we agree with Mr. Rochkind that retaining a Frye-Reed standard, yet encouraging trial courts to seek guidance from federal cases applying the Daubert standard, may generate some confusion. The impetus behind our decision to adopt Daubert is our desire to refine the analytical focus when a court is faced with admitting or excluding expert testimony. This becomes especially important in modern society, which routinely confronts emerging technologies that challenge the efficacy of Frye.

Frye centered on whether scientific principles or discoveries were generally accepted in a relevant scientific community. Yet, using acceptance as the only measure of reliability presents a conundrum: a generally accepted methodology may produce “bad science” and be admitted, while a methodology not yet accepted may be excluded, even if it produces “good science.” See Motorola Inc. v. Murray, 147 A.3d 751, 756 (D.C. 2016). General acceptance remains an important consideration in the reliability analysis, but it cannot remain the sole consideration. See Libas, Ltd. v. United States, 193 F.3d 1361, 1368 (Fed. Cir. 1999) (“While ‘[w]idespread 30 acceptance can be an important factor’ in an assessment of reliability . . . after Daubert and Kumho [Tire], the inquiry does not necessarily end there.

The lesson of the Supreme Court’s rejection of ‘general acceptance’ as the sole standard for expert testimony, in favor of the Daubert-Kumho reliability standard is that ‘widespread use’ or ‘general acceptance’ is an imperfect proxy for reliability.” (internal citation omitted)). Daubert, by contrast, refocuses the attention away from acceptance of a given methodology—although that is not totally removed from the calculus—and centers on the reliability of the methodology used to reach a particular result. “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.” Motorola, 147 A.3d at 757 . In this regard, the analysis by the Honorable Paul W. Grimm in United States v. Horn is enlightening. There, Judge Grimm explained: Under Daubert, the parties and the trial court are forced to reckon with the factors that really do determine whether the evidence is reliable, relevant and “fits” the case at issue.

Focusing on the tests used to develop the evidence, the error rates involved, what the learned publications in the field have said when evaluating it critically, and then, finally, whether it has come be generally accepted, is a difficult task. But, if undertaken as intended, it does expose evidentiary weaknesses that otherwise would be overlooked if, following the dictates of Frye, all that is needed to admit the evidence is the testimony of one or more experts in the field that the evidence at issue derives from methods or procedures that have become generally accepted. 185 F. Supp. 2d 530, 553 (D. Md. 2002) (emphasis added). “The principle shortcoming of Frye,” Judge Grimm continued, “was that it excused the court from even having to try to understand the evidence at issue.” Id. (citation omitted). Instead, a Frye court “only had to assure itself that among the people involved in the field, the technique was acceptable 31 as reliable.” Id.

(quoting 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence, § 702.05[1] (2d ed. 1997)). This rationale leads to a troubling result: given the impact of the stare decisis doctrine, once a court, relying on Frye, had ruled that a doctrine or principle had attained general acceptance, it was all to[o] easy for subsequent courts simply to follow suit. Before long, a body of case law could develop stating that a methodology had achieved general acceptance without there ever having been a contested, detailed examination of the underpinnings of that methodology. Id.; see supra at 19 (discussing this phenomenon in Maryland).

Other courts applying a variant of Frye have observed different flaws. The D.C. Court of Appeals noted that Frye “is not a good gatekeeper for inductive sciences such as epidemiology or psychology.” Motorola, 147 A.3d at 756 . The Supreme Court of Alaska, in adopting the Daubert standard, concluded that the Frye standard “is both unduly restrictive and unduly permissive.” State v. Coon, 974 P.2d 386, 394 (Alaska 1999). The Frye standard “excludes scientifically reliable evidence which is not yet generally accepted, and admits scientifically unreliable evidence which although generally accepted, cannot meet rigorous scientific scrutiny.” Id. at 393–94.

For this reason, we tend to agree with the Supreme Court of Connecticut: “an admissibility test for scientific evidence premised solely on its ‘general acceptance’ is conceptually flawed and therefore must be rejected.” State v. Porter, 698 A.2d 739, 750 (Conn. 1997) (emphasis in original). Our Frye-Reed jurisprudence gave trial courts a stated “end”—reliable methodology—without providing the “means” to achieve it. In Exxon, we observed that “[t]o constitute reliable methodology, ‘an expert opinion must provide a sound reasoning process for inducing its conclusion from the factual data’ and must have ‘an adequate 32 theory or rational explanation of how the factual data led to the expert’s conclusion.’” 433 Md. at 481 (citation omitted). The Daubert factors provide guidance on how to determine if scientific reasoning is, indeed, sound, or a scientific theory adequately justifies an expert’s conclusion.

Daubert is not beyond reproach. Ms. Stevenson levels several criticisms against Daubert, none of which we find sufficiently persuasive to perpetuate our Frye-Reed jurisprudence. Still, we address Ms. Stevenson’s arguments against adopting Daubert and use the opportunity to provide Maryland trial courts with additional guidance on how to implement this new-to-Maryland standard. Ms. Stevenson contends that the Daubert standard enables judges to become “arbiters of scientific knowledge” and “usurp[] the role of juries.” She argues that the standard “sanction[s] judges to exclude from consideration opposing, yet legitimate opinions of experts, that . . . are for a jury to weigh credibility.” We do not foresee the same gloomy outlook.

Under Daubert, judges are charged with gauging only the threshold reliability—not the ultimate validity—of a particular methodology or theory. Ms. Stevenson appears to believe that the inclusion of expert’s testimony will lead to the exclusion of another; however, this simply is not true. As we shall demonstrate, it is often helpful to turn to FRE 702 and the associated Advisory Committee Note to understand Daubert’s application. “When a trial court, applying [FRE 702], rules that an expert’s testimony is reliable, this does not necessarily mean that contradictory expert testimony is unreliable. [FRE 702] is broad enough to permit testimony that is the product of competing principles or methods in the same field of expertise.” Fed. R. Evid. 702 Advisory 33 Committee Note (emphasis added and citation omitted). Indeed, under this approach to expert testimony, juries will continue to weigh competing, but still reliable, testimony.

Ms. Stevenson relies in part on Chief Justice Rehnquist’s concurring and dissenting opinion in Daubert to argue that adopting this standard requires judges to take on the role of amateur scientists. Like other courts that have considered this argument, however, we reject it in kind. “Under Daubert, trial judges are not required to make a determination of the ultimate scientific validity of any scientific propositions. Instead, they need only make a much more limited inquiry: whether sufficient indicia of legitimacy exist to support the conclusion that evidence derived from the principle may be profitably considered by a fact finder at trial.” Porter, 698 A.2d at 757 ; see also E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995) (emphasis added) (“[A] judge does not have to be trained in science to evaluate the reliability of a theory or technique.”). We are confident that trial judges are duly capable of undertaking the reliability analysis absent scientific training.

Ms. Stevenson further argues that Daubert’s abuse of discretion standard and inherent flexibility of the Daubert factors will lead to inconsistent results. We recognize, like the D.C. Court of Appeals, that with Daubert’s flexibility, “[s]ome inconsistency is inevitable.” Motorola, 147 A.3d at 756 . The Supreme Court of Connecticut described “Daubert’s indefiniteness not as a flaw, but as a necessity” in concluding that “a test embodying a general, overarching approach to the threshold admissibility of scientific evidence . . . giv[es] trial courts a workable principle to follow.” Porter, 698 A.2d at 751– 52. We remain persuaded that a marginal amount of inconsistency is preferable given that 34 this standard will “more accurately distinguish ‘good science’ from ‘bad science’ than Frye’s general acceptance test.” Savage, 455 Md. at 185 (Adkins, J., concurring) (quoting Motorola, 147 A.3d at 756 ).

As delayed as Maryland is in joining the supermajority of states and federal courts to adopt the Daubert standard, we do so now with the added benefit of hindsight. As one court remarked, Daubert’s application in the federal courts did not “work a sea change over federal evidence law.” United States v. 14.38 Acres of Land, More or Less Situated in Leflore Cty., State of Miss., 80 F.3d 1074, 1078 (5th Cir. 1996). Nor are we convinced that adopting this standard in Maryland will upend Maryland evidence law. Instead, Maryland courts will be able to “draw from and contribute to the broad base of case law grappling with scientific testimony.” Savage, 455 Md. at 185 (Adkins, J., concurring).

This will give our courts a decided advantage when faced with emerging technologies we cannot yet foresee. Our adoption of Daubert will streamline the evaluation of scientific expert testimony under Rule 5-702. As Judge Adkins indicated in Savage, our discussion in Blackwell required trial courts “to analyze the reliability of an expert’s methodology twice—once under Frye-Reed and again under Rule 5-702(3).” Savage, 455 Md. at 184 (Adkins, J., concurring). Adopting Daubert eliminates the duplicative analysis and permits trial courts to evaluate all expert testimony—scientific or otherwise—under Rule 5-702. 4.

Applying Daubert. To complete our “jurisprudential drift”—once and for all—we set forth the Daubert factors we find persuasive in interpreting Rule 5-702. They include, but are not limited to: 35 (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; and (5) whether a theory or technique is generally accepted. Daubert, 509 U.S. at 593–94 (cleaned up); Fed. R. Evid. 702 Advisory Committee Note.

In addition to these factors, courts have developed additional factors for determining whether expert testimony is sufficiently reliable. These factors include: (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. Fed. R. Evid. 702 Advisory Committee Note (cleaned up). The Supreme Court’s guidance in Daubert, Joiner, and Kumho Tire is critical to a trial court’s reliability analysis.

Daubert made abundantly clear that the inquiry is “a flexible one.” Daubert, 509 U.S. at 594 . “The focus, of course, must be solely on 36 principles and methodology, not on the conclusions that they generate.” Id. at 595 . Yet, Joiner clarified that “conclusions and methodology are not entirely distinct from one another.” 522 U.S. at 146 . A trial court must also consider the relationship between the methodology applied and conclusion reached. Indeed, “[t]rained experts commonly extrapolate from existing data.

But nothing in either Daubert or the Federal Rules of Evidence requires a [trial] court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” Id. “A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Id. Kumho Tire, as noted above, extended Daubert’s application to all expert testimony. 526 U.S. at 141 (“Daubert’s general holding . . . applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.”). Kumho Tire also made clear that a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony’s reliability. But, as the Court stated in Daubert, the test of reliability is “flexible,” and Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or in every case.

Rather, the law grants a [trial] court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination. Id. at 141–42 (emphasis in original). Simply put, all of the Daubert factors are relevant to determining the reliability of expert testimony, yet no single factor is dispositive in the analysis. A trial court may apply some, all, or none of the factors depending on the particular expert testimony at issue.

Savage, 455 Md. at 184 (Adkins, J., concurring) (“[A] a trial court is not required to consider any or all of the Daubert factors in making its reliability determination.”). 37 Applying Daubert factors to our interpretation of Rule 5-702 and eliminating Frye- Reed provides a simpler, more straightforward analysis of expert testimony. There is no longer a need to distinguish new or novel techniques or determine if testimony embraces a “scientific technique.” Just as this process provides a flexible structure for trial courts, so too does it guide appellate courts reviewing the admission or exclusion of expert testimony. Instead of maintaining two separate, and potentially outcome determinative, standards of review—de novo for Frye-Reed and abuse of discretion for Rule 5-702—all expert testimony is reviewed under the abuse of discretion standard.16 See Joiner, 522 U.S. at 143 (“[T]he question of admissibility of expert testimony is . . . reviewable under the abuse-of- discretion standard.”). 5. Final Thoughts.

In light of our