Foundations General Counsel Makes Presentation to Maryland Judicial Institute on Science in the Courtroom


On September 23, 2009, Martin Kaufman, Senior Vice President and General Counsel of the Foundation, participated on a panel discussing Frye-Reed and Daubert as part of a full-day program of the Maryland Judicial Institute on ‘Sound Science in the Courtroom for Maryland state court judges. The panel also included Judge Joseph F. Murphy, Jr. of the Maryland Court of Appeals (the states highest court), Professor Lynn McLain, University of Baltimore School of Law, and Robert S. Peck, President of the Center for Constitutional Litigation.

The panel discussed Maryland law on the admissibility of expert evidence under the Frye/Reed standard and the Daubert standard adopted by federal courts and many states for admissibility of expert evidence.

Reed v. State is the landmark case in Maryland which adopted the rule of Frye v. United States, the 1923 federal case in which the general acceptance standard for the admissibility of expert testimony was articulated. Frye was substantially modified by the U.S. Supreme Court in 1993, in Daubert v. Merrell Dow Pharmaceuticals, which held that under the Federal Rules of Evidence the judge has an important gatekeeping role to ensure that a jury only considers reliable and relevant expert evidence, and articulated a flexible, multi-part test, including, but not limited to, general acceptance for trial courts to use in determining the reliability of expert evidence. In two later cases, General Electric Co. v. Joiner and Kumho Tire Co. v. Carmichael, the Supreme Court elaborated on its ruling in Daubert. The Daubert Trilogy has become the benchmark for assessing the admissibility of expert evidence in federal court, and also has been adopted by a plurality of states. Many states, however, including Maryland, have continued to use the Frye general acceptance test.

Ensuring the reliability of expert evidence is particularly important in criminal cases, where forensic evidence is often critical, and in many civil cases, especially products liability and toxic tort cases, where the economic stakes to both the litigants and to society at large are extremely high, and where the risk of rejecting a valid plaintiffs claim is problematic, but so also is the risk of allowing junk science to drive safe and useful products and substances off the market.

Although superficially the Daubert standard is more flexible than the Frye test, Daubert, particularly as extended by Joiner and Kumho Tire, has become a far broader and stricter test than Frye ever was, primarily because Daubert courts usually engage in a much more intense inquiry into the basis of expert testimony.

The theme of Mr. Kaufmans remarks was the convergence of Daubert analysis and the application of the Frye test. State courts that nominally adhere to the Frye test are nevertheless using elements of Dauberts flexible approach and focusing more on the issue of reliability because that approach is more consistent with the general purpose of rules of evidence than Fryes narrow focus on general acceptance. Frye leads to the admission of evidence that has never been shown to be reliable, but is nevertheless generally accepted by a subgroup of experts who specialize in the forensic field in question. Many forensic tests are generally accepted by those who conduct and interpret the tests, but have never been subject to independent verification.

In criminal law, a recent important example in Maryland is Clemons v. State, 392 Md. 339, 896 A.2d 1059 (2006), in which the Maryland Court of Appeals overturned decades of prior case law admitting into evidence Comparative Bullet Lead Analysis (CBLA). On the civil side, the recent decision of the Maryland Court of Appeals in Blackwell v. Wyeth, 408 Md. 575, 971 A.2d 235 (2009) (involving a claim that thimerosal, a chemical used in vaccines, caused the plaintiffs son to develop autism), exemplifies convergence because although overtly stating that Maryland is a Frye state, the opinion extensively discusses the Daubert-Joiner-Kumho cases and their progeny, and adopts much of the reasoning of those cases. Both decisions were written by Judge Lynne A. Battaglia, who participated in one of the programs panels.

The Foundations participation in the Maryland Judicial Institute seminar is part of our efforts to educate the judiciary, the bar and the public about the importance of sound science in the law.