Maryland: The Latest to Abandon Frye Standard for Expert Admissibility


By: Brittany Kurtz and Joshua Ferguson

The Maryland Court of Appeals closed out the summer with a big splash. In Rochkind v. Stevenson II, the Court left the dwindling number of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) followers and joined the supermajority of jurisdictions utilizing the factor analysis approach of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) to determine the admissibility of expert testimony. After nearly a decade of Maryland testing the water of the factor-based standard, they took the plunge into the Daubert pool.

In Rochkind v. Stevenson II, the plaintiff’s alleged exposure to lead based paint as a young child at an apartment rented by her mother from the defendant contributed to several major psychological disorders and Attention Deficit Hyperactivity Disorder (ADHD). Plaintiff’s expert concluded lead poisoning was a significant contributing factor to plaintiff’s ADHD and other neuropsychological problems. Defendant filed multiple motions in limine to exclude the expert’s testimony and was denied a Frye-Reed hearing as the expert’s opinions were “generally accepted” and not “new science” or “new conclusions,” and the testimony was drawn from “reliable sources.”

An established science is required to pass the Rule 5-702 standards for admissibility, where the court determines (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony. This rule was adopted following the Supreme Court’s holding in Daubert. The Court outlined the following Daubert factors:

  • Whether a theory or technique can be (and has been) tested;
  • Whether a theory or technique has been subjected to peer review and publication;
  • Whether a particular scientific technique has a known or potential rate of error;
  • The existence and maintenance of standards and controls; and
  • Whether a theory or technique is generally accepted.

In addition to these factors, the Court adopted five additional factors to evaluate whether expert testimony is sufficiently reliable, which includes:

  • 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;
  • Whether the expert has unjustifiability extrapolated from an accepted premise to an unfounded conclusion;
  • Whether the expert has adequately accounted for obvious alternative explanations;
  • 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
  • Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.

Rochkind v. Stephenson II. Fed. R. Evid. 702 Advisory Committee Note.

The Court remanded this matter to the circuit court, so it could conduct a Rule 5-702 hearing and will now consider the Daubert factors to determine reliability of the expert testimony. The adoption of Daubert and elimination of Frye-Reed creates a streamlined approach for expert testimony admissibility.

As Maryland demonstrated their slow drift from the Frye standard to the eventual Daubert factor analysis, it raises the question of whether the remaining Frye jurisdictions will hold out as the minority. Some states are inching closer to following Maryland’s lead in adopting Daubert as they already follow some factors included in their analysis. The states to keep an eye on include: Pennsylvania (Pa.R.E. 702), New York (People v. Wesley, 83 N.Y.2d 417 (1994) followed by Cornell v. 360 W.51st St. Realty, LLC, 22 N.Y.3d 762 (2014)), California (People v. Leahy, 8 Cal.4th 587 (1994) followed by People v. Cowan, 50 Cal.4th 401 (2010)), New Jersey (N.J.R.Evid. 702), Illinois (Ill. R. Evid. 702), Washington (State v. Riker, 123 Wn.2d 351 (1994) followed by State v. W.R., 181 Wn2d 757 (2014)).

If you have questions or would like more information, please contact Brittany Kurtz at or Joshua Ferguson at