Rochkind v. Stevenson

• Citation: 471 Md. 1,236 A.3d 630
• Decision Date: 28 August 2020
• Docket Number: No. 47, Sept. Term, 2019,47, Sept. Term, 2019
• Parties: Stanley ROCHKIND v. Starlena STEVENSON
• Court: Court of Special Appeals of Maryland

471 Md. 1

236 A.3d 630

Stanley ROCHKIND

v.Starlena STEVENSON

No. 47, Sept. Term, 2019

Court of Appeals of Maryland.

August 28, 2020

Reconsideration Denied September 25, 2020

Argued By Thomas J. Cullen, Jr. (Constantine J. Themelis and Derek M. Stikeleather, Goodell, Devries, Leech & Dann, LLP, Baltimore, Md; Ronald D. Getchey and Charles Danaher, Sheppard Mullin Richter & Hampton, LLP, San Diego, CA) on brief, for Appellant.

Argued BY Scott E. Nevin (The Law Offices of Peter T. Nicholl, Baltimore, MD) and Suzanne C. Shapiro (Suzanne C. Shapiro Law, LLC, Baltimore, MD) on brief, for Appellee.

Amici Curiae Medical Mutual Liability Society of Maryland, and Medchi, the Maryland State Medical Society in Support of Appellant, Stanley Rochkind: Mitchell Mirviss, Esquire, Venable LLP, 750 East Pratt Street, Suite 900, Baltimore, Md 21202.

Amicus Curiae Maryland Association for Justice in Support of Appellee: Michael J. Winkelman, Esquire, McCarthy, Winkelman & Mester, L.L.P., 4300 Forbes Boulevard, Suite 205, Lanham, MD 20706 and Ned Miltenberg, Esquire, Managing Partner, National Legal Scholars Law Firm, P.C., 5410 Mohican Road, Suite 200, Bethesda, MD 20816.

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

Getty, J.

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, 391 A.2d 364 (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, 391 A.2d 364.

In Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (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 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.

BACKGROUND

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, 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 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 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 court denied.

On appeal, the Court of Special Appeals held, among other things, that the circuit court did not err in failing to hold a Frye - Reed hearing on Dr. Hall-Carrington's general causation testimony because the studies she relied upon did not reach novel conclusions and "used methodologies that are generally accepted" in the scientific community. Rochkind v. Stevenson , 229 Md. App. 422, 464, 145 A.3d 570 (2016). The intermediate appellate court also held that the circuit court properly admitted Dr. Hall-Carrington's specific causation testimony under Rule 5-702 because her opinion "was supported by an adequate factual basis and was sufficient to allow the jury to decide the causal connection, if any, between lead exposure and Ms. Stevenson's ADHD." Id. at 465, 145 A.3d 570. Mr. Rochkind appealed.

C. Stevenson I.

In his first appeal to this Court, Mr. Rochkind argued that Dr. Hall-Carrington's testimony should have been excluded because it failed to meet the requirements of both Rule 5-702 and Frye - Reed . Rochkind v. Stevenson , 454 Md. 277, 285, 164 A.3d 254 (2017) (" Stevenson I "). The Court agreed. Applying a Rule 5-702 analysis, the Court held that "Dr. Hall-Carrington did not provide a sufficient factual foundation for why she thought the EPA-ISA supported her conclusion that lead exposure can cause ADHD." Id. at 290, 164 A.3d 254. The Court concluded that because "Dr. Hall-Carrington did not cite to any other studies...