By W.J. Kennedy, originally published in Legal Newsline on Oct 8, 2020.

After good news in Maryland, defense lawyers eye the way MDLs handling questionable testimony

ANNAPOLIS, Md. (Legal Newsline) – Courts are giving defendants a few things to cheer about regarding the admissibility of evidence presented by expert witnesses.

Maryland courts will now follow the more rigid, scientific-based standard, the Daubert standard, as a guide for allowing evidence presented by an expert witness, under an Aug. 28 ruling, Rochkind v. Stevenson, by the Maryland Court of Appeals, the state’s highest court. 

And on the federal court level, the Advisory Committee on Evidence Rules is considering an amendment to Rule 702, the Testimony by Expert Witness rule, that would restate that federal judges must follow Daubert in deciding whether to allow certain expert witnesses. The federal courts adopted Daubert in the U.S. Supreme Court’s 1993 ruling Daubert v. Merrell Dow Pharmaceuticals, Inc.

Defense lawyers argue that some federal judges presiding over high stakes multidistrict litigation (MDLs) have drifted away from Daubert and allowed evidence based on unsound science, which has unjustly exposed some businesses to liability. The committee is scheduled to discuss the changes at its Nov. 13 meeting. A final decision is expected at its Spring meeting.

“It could come as an amendment or a statement making it clear what Daubert intends, and for the judge to act as more of a gatekeeper over what testimony is allowed,” Tom Sheehan with New York law firm of Phillips Lytle told Legal Newsline.

Sheehan was one in a group of defense lawyers that in June signed off on a letter to the Advisory Committee after reviewing recent decisions from MDLs.

“Our review of 27 recent decisions from MDLs in the pharmaceutical, medical device and chemical exposure fields demonstrates the need for Advisory Committee action on Rule 702,” the letter stated. “Courts in these cases frequently dismiss problems with an expert’s factual basis or applied methodology as relating to the weight of the evidence rather than its admissibility.”

Their review included decisions in the talcum powder cases against Johnson & Johnson. Those cases often turn on whether plaintiffs experts are allowed to testify that there is asbestos in Baby Powder, and Daubert gives judges greater leeway to keep questionable expert testimony from ever reaching a jury’s ears.

For its part, the Maryland case does more than just decide but it teaches why Daubert is superior to an older standard, Frye, a standard based on “generally accepted” science, according to Victor Schwartz, co-chair of the Public Policy Practice Group at Shook, Hardy & Bacon.

Schwartz said that Frye can be both “over-inclusive” and “under-inclusive.”

“The Frye rule can be over-inclusive in allowing a jury to hear evidence of any ‘generally accepted’ scientific principle or methodology, even if it produces unreliable science,” Schwartz said. 

“For example, it was ‘generally accepted’ for centuries in the scientific community that the Sun rotated around the Earth until Copernicus debunked that fallacy. At the same time, the Frye rule can be under-inclusive in disallowing reliable scientific evidence that has not yet obtained general acceptance in the scientific community. For example, many scientists once believed that the conditions of space precluded sending a person to the moon and back until NASA proved otherwise.”

Schwartz said that the Daubert standard also benefits criminal defense attorneys in instances when a prosecutor presents speculative evidence to gain a conviction.

“The standard helps ensure that no party suffers prejudice from unsound scientific evidence,” he said.

New criteria for Maryland judges to weigh when deciding if an expert can testify include:

-Whether a theory or technique can be and has been tested;

-Whether it has been subjected to peer review and publication;

-Whether it has a known or potential rate of error; and

-Whether a theory or technique is generally accepted.

Daubert is the standard for federal courts and more than 30 states. Two years ago, it was adopted by Missouri after its courts became popular destinations for plaintiffs lawyers with talcum powder/asbestos cases.