In 2020 when science and politics appear to have collided in a car wreck, confidence of the public in scientists is at an all time low. That observed, the public does not often think about the role courts have in accepting scientific theories. Last week Maryland’s highest court drew attention to this vital unsettled matter nationwide when it adopted a new evidentiary standard for scientific testimony.
While the case before the Court involved the harm caused by lead paint exposure and many think of expert scientific testimony about medical malpractice, and cases of those types that appear on court dockets in large numbers, there are also other overarching public policy cases that involve science, for example lawsuits over damages for climate change and banning pesticides; that all will be impacted by this Court opinion.
The Court said, “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,” but some background is necessary, ..
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. 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 Maryland held, “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.
In 1993 the Supreme Court of the United States upset the applecart of the admissibility of expert scientific testimony. In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court held that Federal Rule of Evidence superseded Frye’s general acceptance test.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.
All these years later, Maryland now joins a majority of other states and adopted the Daubert reliability factors, overruling Frye. Many trial lawyers believe what the high court has done is a good thing:
When interpreting considering the admissibility of scientific evidence, now 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.
But, it is not that simple, a three judge dissenting opinion, questioning in part the high court making this change in an opinion in a case as opposed to in a public process,
At a minimum, before any decision to adopt the Daubert standard, I would recommend that the Standing Committee on Rules of Practice and Procedure undertake a study of the impact of Daubert and make a determination as to whether adoption of Daubert in Maryland will negatively affect African American people, people of color, or people of limited financial means as potential litigants.”
The majority replies in a footnote, “We do not reject the seriousness of this contention.” And curiously goes on to quote parenthetical in a law review article, .. (“[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.”)
The dissenting opinion goes on, “The Majority does not advise that the article, like other sources, likens Daubert to tort reform, stating: .. The resulting effects of Daubert have been decidedly pro-defendant.” Be assured with the courts as a coequal branch of government, keeping science out of cases because it may be unpopular or worse, not only puts a thumb on the scales of justice in civil cases, but also criminal prosecutions.
The public is increasingly sophisticated and understands that all science is bought and paid for, whether by a police department crime lab or an industry trade group, and many believe all science is junk science carrying with it that pejorative connotation that the science is untowardly driven. Allowing more scientific evidence into a case rather than excluding some, and allowing a jury to evaluate it all may restore trust.
There is no question the Court had the authority to make this change when Maryland Constitution provides, 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 ..”
But the broader question may be the far reaching consequences of a nearly two decades old (.. are you using the same phone you used in 1993?) new, but dated, evidentiary standard now used by a supermajority of courts across the country for the admission of scientific evidence in future cases that will emanate from coronavirus disease 2019 to CRISPR gene editing, and much more.
Science by consensus is at best not reliable and at worst junk science. Simply because there is a general agreement upon something does not actually make it true. If courts exclude scientific evidence from a jury only because people generally agree some other way, .. think for example excluding evidence in the pending lawsuit for damages from climate change brought by Baltimore City pending in the Maryland courts because one side’s scientific experts are called “climate change deniers,” offering junk science counterposed to “sound science,” .. courts risk being the next vehicle in the car wreck of confidence the public has in scientists.
The case is Stanley Rochkind v. Starlena Stevenson.