By Alice Kelley Scanlon and Philip Wright
The intersection of law and science can have many layers, like stacked overpass cloverleafs where several highways merge. Some statutes operate as amazingly consistent diagnosticians which unerringly find that incidents of high blood pressure or cancer of any type are caused by certain occupations with no inquiry into what the job requirements were, contra-indications, or alternate possible causes.[1] However, where science and the law mainly meet is in the courtroom. And, it is in the courtroom where judges are charged with the duty of determining whether a proffered scientific theory may be heard by a fact finder, or if found deficient in some respect, then stricken.
Identifying Experts
At the outset of litigation, parties will identify both fact and expert witness through the discovery process. Maryland Rule 2-402(g) requires that parties disclose expected testimony of expert witnesses including the subject matter, the substance of the opinions and a summary of the grounds for each opinion. The Rules recognize two categories of experts expected to be called at trial: those retained in anticipation of trial and other experts including hybrid fact/expert witnesses. The hybrid fact/expert has first-hand knowledge of the relevant facts, but would also qualify as an expert based upon training, skill, experience, education and background. A typical example of such a witness would be a treating physician in a personal injury case.
The hybrid fact/expert witness must be disclosed under Rule 2-402(g) and the party only needs to disclose the information set forth in Rule 2-402(g)(1)(A). However, for those experts retained in anticipation of litigation, the disclosure must also include a summary of the qualifications, a list of publications authored by the expert and the terms of the witnesses’ compensation. Rule 2-402(g)(1)(B).
When dealing with expert testimony it is also prudent to be mindful of Maryland Rule 2-401(e) which requires the supplementation of previously disclosed information, including expert opinions.
Expert Witness Admissibility
Once the expert witnesses have been identified, the appropriate information disclosed and supplemented, if necessary, Maryland Rule 5-702 governs the admission of such expert testimony at trial. The Rule essentially states the court is to determine (1) whether the witness is qualified as an expert, (2) the appropriateness of the proffered testimony to the particular issue at hand, and (3) whether a sufficient factual basis exists to support the expert testimony.
In Rochkind v. Stevenson, 471 Md 1 (2020), the Maryland Court of Appeals has now joined the majority of jurisdictions in adopting the so-called Daubert [2] rule for what a practitioner or judge ought to look for when being called upon to determine the admissibility of an expert scientific opinion. That guidance is crucial because the stakes can be so high. Once a proffered theory is allowed, the fact finder may, for example, break new ground by finding causation in something previously not widely accepted. Does baby powder cause cancer? Yes, according to Ingham v. Johnson & Johnson, 608 S.W.3d 663 (Mo. App. E.D. 2020) [$4B+ award recently presented to the Supreme Court]. Do cell phones cause cancer? No, according to Newman v. Motorola, Inc., 78 Fed. Appx. 292 (4th Cir. 2003). So how is a judge to decide in our adversarial system where parties bring opposite expert opinions and claims to any given scientific theory?
The Court has now laid down some more principles to follow when deciding the admissibility/sufficiency and reliability of expert testimony:
(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.
(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.
This list is by no means exhaustive, no factor is dispositive, and it is not necessary to have all ten factors in all cases, as the approach is to be flexible. It all boils down to determining if the testimony is reliable. It is worth noting that this standard is applicable to all expert testimony not merely scientific and therefore extends to technical or other specialized knowledge. Finally, it is all discretionary, so if you do not win your arguments concerning admissibility at the trial level, it is not likely to be overturned on appeal.
Conclusion
When any practitioner or judge is confronted with the issue of expert testimony, one must first confirm whether appropriate disclosures have been made, and then also read over the Rochkind decision’s analysis of applying Daubert. Much of the decision is the history of Maryland’s prior jurisprudence. It is best to start thinking and speaking in the language of Daubert and its progeny, now that the standards of expert testimony analysis have changed.
Anderson & Quinn, LLC is a law firm based in Rockville, Maryland, providing individuals, businesses, corporations, and healthcare institutions with the legal and litigation support they need to protect revenues.
Alice Kelley Scanlon is a Member of the firm and is licensed to practice law in Virginia, Maryland, and the District of Columbia. Email: ascanlon@andersonquinn.com.
Philip M. Wright is a Senior Associate of the firm and is licensed to practice law in Maryland and the District of Columbia. Email: pwright@andersonquinn.com.
In addition to email, Ms. Scanlon and Mr. Wright may be reached at Anderson & Quinn, LLC, 25 Wood Lane, Rockville, MD, 20850. Tel: 301-762-3303.
The information contained in this article is general in nature and is not offered as legal advice for any particular situation. The opinions and conclusions in this blog post are solely those of the authors. Any links provided by the authors in this article are for informational purposes only and by doing so the authors do not adopt or incorporate their contents. See our Disclaimer for additional details.
[1] Labor & Employment Article §9-503 [Presuming heart disease, high blood pressure, cancer, and lung disease all are related to certain ‘first responder’ occupations].
[2] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
