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Riding Frye/Reed Continued from page 31


defined and refined the role of the federal trial judge as “gatekeeper” for the introduction of expert testimony. In Cavallo v. Star Enterprises13


the Fourth Circuit discussed


Daubert and viewed it as a liberalization of the “rigid” general acceptance test of Frye. It rejected the general acceptance test, holding “Tat austere standard, absent from and incompatible with the Federal Rules of Evidence, should not be applied in federal trials.”14


Te Cavallo court summarized the transition


from Frye-Reed to Daubert as follows: In lieu of the Frye-Reed test, it decided, the validity of the methodology or reasoning is determined using a flexible inquiry based on five factors: (1) whether the testimony has been tested, (2) whether it has been published or exposed to peer review, (3) its rate of error, (4) whether there are standards and controls over its implementation, and (5) whether it is generally accepted.15 Te Fourth Circuit continues to apply this test to all expert


testimony and although Maryland continues to apply the Frye- Reed test, the considerations espoused in Daubert have begun to filter into and color the Frye-Reed analysis.


Maryland Rule 5-702 and the Blackwell


cases Maryland Rule 5-702 is the counterpart to FRE 702 and


provides as follows:


Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the


13 Cavallo v. Star Enterprises, 100 F. 3d 1150 (1996). 14 Id. at 1158. 15 Id. at 1158.


testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination the court shall determine (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.16


Contrary to its federal counterpart, Maryland Rule 5-702


does not preempt prior case law on the subject of admissibility of expert opinion. Indeed, the committee note to the 1994 rule specifically provides that it was not intended to overrule Reed or Frye, but provides that the admission of novel scientific techniques or principles would be developed through case law. It is apparent that since the adoption of Rule 5-702 in 1994 the Maryland appellate courts have done just that and in doing so have continually adhered to the “generally accepted” standard of Frye-Reed but have also sought support in the broad body of cases decided under Daubert. In 2002 in T-Up, Inc. v. Consumer Protection Division,17


the


Maryland Attorney General took enforcement action against the seller of T-Up, a concentrated aloe vera extract with cesium chloride, a mineral. It was marketed as a cure for cancer, AIDS, HIV, lupus, herpes, rheumatoid arthritis and other conditions. After a finding against it at the administrative level, T-Up appealed, alleging that the administrative law judge erroneously limited the testimony of its expert chemist who would have opined that cesium chloride was, indeed, capable of the wonder cures claimed. Te Court of Special Appeals affirmed the administrative law judge’s exclusion of proffered expert testimony. In doing so, it first noted that the chemist admitted that his opinions did not have general scientific acceptance,


16 Maryland Rule 5-702 – Testimony by Experts. 17 T-Up, Inc. V. Consumer Protection Division, 145 Md. App 27, 801 A. 2d. 173 (2002).


34 Trial Reporter / Summer 2009


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