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New Test for Expert Testimony

Physicians are often called upon to give expert testimony. They are asked to give their opinions as to whether a particular course of treatment did or did not meet community standards, or whether a particular course of treatment was an acceptable method, albeit cutting edge, or a little behind the times.

Now, the test for whether specific scientific evidence should or should not be admitted in a case has changed, or at least evolved, in Maryland.


In 1993, in Daubert v. Merrill Dow Pharmaceuticals, the U.S. Supreme Court established standards to evaluate the admissibility of expert testimony. The Supreme Court introduced a five-part test of nonexclusive factors for trial courts to consider when weighing whether scientific expert testimony should be admitted into evidence.

Among other factors, the Daubert test includes whether or not a theory or technique can be tested; and whether the expert testimony is an “unjustifiable extrapolation” from an “accepted premise to an unfounded conclusion.” As a result, a Daubert test often requires a trial judge to have at least a basic understanding of the science at issue to assess the admissibility of opinion testimony.


Until recently, Maryland courts have not formally used the Daubert standard to assess the admissibility of expert witness testimony. Instead, Maryland courts have relied on a test, known as the Frye-Reed test.

The Frye-Reed test originated from a 1923 case in which the District of Columbia Court of Appeals held that the test for determining the admissibility of expert testimony was whether the basis of the scientific opinion offered into evidence was “generally accepted as reliable within the expert’s relevant scientific community.”

Now, in the August 2020 opinion in Rochkind v. Stevenson, Maryland’s highest appellate court has formally retired the Frye-Reed test, and has adopted Daubert as controlling law in Maryland.


Upon reaching the age of 20, Starlena Stevenson filed a negligence lawsuit against her landlord alleging that she suffered from psychological disorders and injuries as a result of her exposure to lead paint as a child. During the litigation, one of Ms. Stevenson’s expert witnesses, Dr. Hall-Carrington, opined in a medical report that her lead poisoning was a significant contributing factor in causing her neuropsychological problems.

The landlord sought to exclude Dr. Hall-Carrington’s opinion under the Frye-Reed test. However, the opinion was admitted into evidence by the trial judge, and the jury subsequently entered a significant verdict in favor of Ms. Stevenson.

In deciding the case, Maryland’s highest appellate court said the Daubert test was generally more flexible than the “general acceptance” test of Frye-Reed, which the court noted was “uncompromising.” Further, the court explained that while Maryland has historically refrained from explicitly adopting the Daubert standard, Maryland courts have been continuously expanding the Frye-Reed test over time, such that the test has “drifted” to very much resemble the Daubert standard.

However, to prevent further confusion, Maryland’s highest appellate court held that it was now time formally to adopt Daubert as the standard to govern the admissibility of expert testimony in Maryland.

More specifically, the court in Rochkind set forth 10 nonexclusive factors that should be considered when assessing the admissibility of expert opinion testimony. These factors include, among other things:

  • Whether or not a theory can be tested;
  • Whether the theory is subject to peer review or publication;
  • Whether the theory or technique is generally accepted; and
  • Whether the expert has accounted for obvious alternative explanations. 

Accordingly, the appellate court in Rochkind sent the case back to the trial court to implement Maryland’s new tests for assessing the admissibility of expert testimony.


Unlike the Frye-Reed test, the Daubert test generally gives trial courts greater discretion to admit novel expert testimony as long as it is based on sound scientific principles.

Indeed, Maryland’s adoption of Daubert might open some doors for those seeking to use cutting-edge science as a factual basis for expert opinion. In such cases, a Daubert analysis will likely shift the focus away from whether a test is generally accepted within a scientific community and focus more squarely on the reliability of the methodology used to arrive at the opinion.

On the other hand, while the Rochkind decision seems intended to bring clarity for those seeking to admit or exclude expert testimony in Maryland, trial judges now have 10 factors to weigh instead of one. Further, while Frye-Reed test did not require a court to wade into a deep understanding of the expert opinion to determine whether it was generally accepted, Rochkind seems to require such a deeper analysis.

Notwithstanding the above, Rochkind may not dramatically change the way Maryland courts assess opinion admissibility. Indeed, as Maryland’s highest appellate court noted in its opinion, implementation of Frye-Reed in Maryland had already “drifted” to very much resemble Daubert.

Many Maryland courts had already been considering various Daubert factors when assessing the admissibility of expert testimony. Therefore, only time will tell if Rochkind will significantly modify the way Maryland courts assess the admissibility of expert testimony.

A version of this article was published in The Daily Record on October 4, 2021.


Justin P. Katz
410-576-4102 • jkatz@gfrlaw.com



March 21, 2021




Katz, Justin P.
Rosen, Barry F.


Personal Injury