Rochkind v. Stevenson

CourtCourt of Special Appeals of Maryland
Docket NumberNo. 47,47
Decision Date28 August 2020


No. 47


Argued: February 7, 2020
September Term, 2019
August 28, 2020


Over four decades ago, the Court of Appeals in Reed v. State, 283 Md. 374 (1978), adopted the "general acceptance" test—first espoused in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)—for the admissibility of expert testimony based on new or novel scientific principles. In 1993, the Supreme Court of the United States, in adopting a new "reliability" standard for admissibility of expert testimony in federal courts, endorsed a nonexclusive list of reliability factors. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In that case, the Supreme Court held that Federal Rule of Evidence ("FRE") 702 superseded Frye. The following year, the Court of Appeals adopted Maryland Rule 5-702, a rule modeled after FRE 702, which laid out the elements of admissible expert testimony. Maryland Rule 5-702, however, did not overrule Reed or Frye. Since 1994, the relationship between Frye-Reed and Maryland Rule 5-702 has complicated.

The Court of Appeals adopted the Daubert reliability factors, overruling Frye and Reed. When interpreting Maryland Rule 5-702, 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.

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Circuit Court for Baltimore City
Case No. 24-C-11-008722

McDonald, Watts, Hotten, Getty, Booth, Biran, Greene, Clayton Jr. (Senior Judge, Specially Assigned), JJ.

Opinion by Getty, J.
Watts, Hotten, and Greene, JJ., dissent.

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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, 293 F. 1013, 1014 (D.C. Cir. 1923). 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 this Court in 1978. Reed v. State, 283 Md. 374, 382 (1978). Hence, after noting the majority of courts were in agreement that "'general acceptance' in the [relevant] scientific community ha[d] come to be the standard," Frye-Reed was born in Maryland; as we put it, "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. Id. at 381.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court of the United States upset the applecart of the admissibility of expert scientific testimony. There, the Supreme Court held that Federal Rule of Evidence ("FRE") 702 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. A supermajority of states followed the Supreme Court's lead and replaced their respective Frye standards with Daubert. Maryland, however, did not.

In the forty years that followed Reed, Maryland experienced a jurisprudential drift: the Frye-Reed standard announced in 1978 slowly morphed into a "Frye-Reed Plus" standard, implicitly and explicitly relying on and adopting several Daubert principles. For

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this reason, Appellant/Cross-Petitioner Stanley Rochkind now squarely poses this question: Should the Court adopt the standard for admitting expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc.? This time, for reasons more fully explained below, we answer this question in the affirmative and choose to adopt Daubert as the governing standard by which trial courts admit or exclude expert testimony.


A. Ms. Stevenson's Lead Paint Exposure and Medical History.1

In 1991, a 10-month-old Starlena Stevenson and her mother, Charlena Montgomery, moved to 3823 Fairview Avenue ("Fairview"), where they lived for 15 months. At the time, Fairview was owned in part by Mr. Rochkind. According to Ms. Montgomery, Fairview contained chipping and flaking paint on the windowsills, floors, and front porch. Blood lead level tests taken while Ms. Stevenson was a resident of Fairview revealed that she had a blood lead level of 13 to 14 micrograms per deciliter—a number that dropped to 11 micrograms per deciliter just two months later when she was no longer a resident of that property.

Ms. Stevenson, now 29 years old, has a family history of learning disabilities and has faced numerous medical, psychological, and socioeconomic obstacles. She was born to a single teenage mother and has no relationship with her father. As a child, she was diagnosed with Attention Deficit Hyperactivity Disorder, commonly referred to as ADHD,

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and several major psychological disorders including oppositional defiance disorder, major depressive disorder, anxiety disorder, and parent-child relationship disorder. Her psychological problems were so severe that in 2004 she engaged in self-mutilation and attempted suicide.

Since graduating from high school in 2008, Ms. Stevenson has been sporadically employed, working as a patient transporter for the University of Maryland Medical System, a cashier for Royal Farms, and a babysitter. In each case, Ms. Stevenson struggled to stay employed due to her attentional deficits, hyperactivity, and impulsivity—symptoms which she claims resulted from her exposure to lead paint.

B. The First and Second Trials.

In December 2011, Ms. Stevenson filed suit against Mr. Rochkind in the Circuit Court for Baltimore City for negligence and violations of the Maryland Consumer Protection Act. In July 2012, lead testing conducted at Fairview detected lead-based paint on twenty-two interior surfaces and nine exterior surfaces. In preparation for the litigation, Cecilia Hall-Carrington, M.D., a pediatrician, filed a report concluding to "a reasonable degree of medical probability" that Ms. Stevenson was poisoned by lead at Fairview, and that "her lead poisoning is a significant contributing factor" to her neuropsychological problems, including her ADHD.

Before trial, Mr. Rochkind filed four motions in limine seeking to exclude Dr. Hall-Carrington's testimony. He argued that she should not be permitted to testify that Fairview was a source of Ms. Stevenson's lead exposure or that such exposure caused Ms. Stevenson's "cognitive deficits," including, specifically, ADHD. Mr. Rochkind requested

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a Frye-Reed hearing on each motion. The court denied his requests. After hearing arguments on the motions in limine, the court denied them as well. The jury returned a verdict in favor of Ms. Stevenson, awarding her $829,000 in economic damages and $534,000 in noneconomic damages. Mr. Rochkind filed a motion for a new trial, or, in the alternative, remittitur. The court granted his motion in part and ordered a new trial on the issue of damages alone.

The partial new trial began in October 2014. Before trial, Mr. Rochkind renewed his motions in limine to exclude Dr. Hall-Carrington's ADHD testimony, which were again denied. The court declined to hold a Frye-Reed hearing, explaining that Dr. Hall-Carrington's opinions are "not new science" or "new conclusions." It admitted her testimony under Maryland Rule 5-702 because it found that she drew from "reliable sources."

At trial, Dr. Hall-Carrington testified as to both general and specific ADHD causation. She explained that studies show that lead exposure can cause "attention problems[] or ADHD" generally. She also opined "within a reasonable degree of medical probability" that lead exposure caused Ms. Stevenson's ADHD specifically. To support her testimony, Dr. Hall-Carrington relied on a publication from the Environmental Protection Agency reviewing the most recent studies on the effects of lead exposure in children, titled "Integrated Science Assessment for Lead" (the "EPA-ISA").2 She testified

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that the EPA-ISA concluded that there is a causal relationship between lead exposure and the symptoms of ADHD, such as attention decrements, impulsivity, and hyperactivity. Dr. Hall-Carrington also testified that "some years ago there was a concern with suicide in kids [taking] Adderall." In closing argument, Ms. Stevenson's counsel implied that Ms. Stevenson's depression and hallucinations were side effects of her ADHD medications, including Adderall.

The jury awarded Ms. Stevenson $753,000 in economic damages and $700,000 in noneconomic damages. Due to the statutory cap on noneconomic damages, the court reduced the total judgment to $1,103,000. Mr. Rochkind filed a motion for a new trial, which the...

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