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Maryland and D.C. Adopt Daubert Standard for Admissibility of Expert Testimony

Terrence M. McShane

Spencer D. O’Dwyer

McShane, P.C.


Friday, December 18, 2020


            The Maryland Court of Appeals has joined the majority of states (and the District of Columbia) by adopting the Daubert framework for determining the admissibility of expert testimony in a recent decision set forth in Rochkind v. Stevenson (August 28, 2020).  This decision is effective immediately and applies to cases that are pending on direct appeal, assuming the relevant question has been preserved for appellate review.


            The Rochkind decision replaces the Frye-Reed standard previously utilized in evaluating the admissibility of expert testimony, which provided that expert opinions may be received as evidence only when the basis of the expert’s opinion is “generally accepted” as reliable within the scientific community.  Following Rochkind, Maryland courts will now determine admissibility of expert testimony under Maryland Rule 5-703 by applying the Daubert standard and additional factors derived from federal case law, including:


  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.


           The District of Columbia Court of Appeals adopted the Daubert framework for admissibility of expert testimony in D.C. in the case of Motorola, Inc. v. Murray (October 20, 2016).  Since then, D.C. has applied the standards set forth in Federal Rule of Evidence 702, and the factors listed above, which were enumerated in Daubert and its progeny, when determining whether an expert opinion may be introduced as evidence in civil and criminal cases.  These decisions will provide greater certainty and guidance to practitioners and judges alike in arguing for, and ruling upon, the admissibility of expert testimony in Maryland and D.C.

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