thereby failing a traditional Frye-Reed analysis. He then went on to do an analysis under FRE 702 and Daubert, concluding that under either Frye-Reed or Daubert, the exclusion was not an abuse of discretion. More recently, in 2007, in Montgomery Mutual Insurance the Court of Appeals reversed a trial court


Co. v. Chesson,18


ruling holding that a Frye-Reed hearing was not necessary when it was the opinion of the expert on cause or origin of a condition which was being challenged. Te Court found that the physician’s diagnosis and causation conclusions, while based upon tests which were generally accepted in the medical community, were based upon use of those tests in a new and untested way. Te Court noted that the subject of the causal connection between mold exposure and illness has been the subject of analysis under both Frye-Reed and Daubert where the courts are seeking to ensure a reliable basis for opinion testimony. Most recently, in 2009, in Blackwell v. Wyeth,19


the Court


of Appeals addressed whether “thimerosal” in child vaccines causes neurological defects such as autism. In approving the trial court’s exclusion of expert opinion affirming such a causal relationship, the Court performed a traditional Frye-Reed analysis and came to the conclusion that the methodologies and opinions were not generally accepted in the scientific community. It did so while acknowledging the reliability of the underlying data upon which the opinions were based, but finding that the use of the data in a new and untested way precluded a finding of reliability. Te Court also considered the Daubert factors, although


not by name. It noted there was no testing to support the conclusions reached, there were no published peer reviewed studies which supported the opinion, the studies done by Dr. Grier had significant methodological limitations which rendered them unreliable, and that his studies did not constitute a generally accepted basis for his causation opinions. Finally, in 2009, in State v. Blackwell,20


In each instance, the trial judge, as gatekeeper, must determine the relevance and reliability of the information or principles used to support an expert opinion. Both Daubert and Frye- Reed use the same criteria in their analysis. Te practitioner who intends to present expert testimony should ask the following questions in preparing the case and the expert for trial: 1. Is the opinion I seek to introduce relevant? 2. Will the opinion help the trier of fact determine a necessary issue or fact or to better understand other evidence?


3. Is my expert qualified by education, experience or otherwise to render the opinion?


4.


Is the data or principle upon which the opinion is based generally accepted in the scientific or technical community?


5. Is my expert using the data or principles in an accepted manner or method?


6. All things considered, is it reliable? If you can answer affirmatively to all of the above, you have


a strong and sound foundation for the admission of the desired testimony.


Biography


James L. Otway (Otway Russo, LLP, Salisbury) is a partner with his firm. Mr. Otway has practiced law in Salisbury, Maryland for over 25 years. He received his law degree from Potomac School of Law (JD, 1978). He is admitted to the bar of Maryland. He is a member of the Million Dollar Advocates, an organization which is comprised of attorneys who have achieved verdicts and/or settlements in excess of $1 million in cases involving personal injury or death. His practice concentrates on personal injury, medical malpractice and wrongful-death cases, and business disputes.


the Court of Appeals,


relying upon Maryland Rule 5-702, excluded the testimony of a police officer regarding the defendant’s performance on the horizontal gaze nystagmus test. It did not question the science underlying the test or its general acceptance; but rather, the officer’s qualifications to administer and interpret the test results. In doing so, it relied upon a 1997 Tennessee case. Tennessee’s rule 702 is identical to FRE 702 and it employs a Daubert analysis in determining the admissibility of expert testimony.


Conclusion Maryland state courts continue to require a Frye-Reed


analysis for determining the admission of expert opinion which may not be based upon generally accepted scientific or technical information or principles. Tat opinion evidence must be both relevant and reliable and also be of assistance to the trier of fact in determining the issues before it. Frye-Reed determines reliability by assuring that the methods used to reach the opinion and the basis which supports it are generally accepted in the particular scientific or technical community. In the United States District Court for the District of analysis


Maryland, a Daubert for reliability requires the


application of the five criteria referenced above. While some may argue that the Frye-Reed and Daubert


standards are technically different, an analysis of their application by the Courts makes them substantively the same.


18 Montgomery Mutual Insurance Co. v. Chesson, 399 Md. 314, 923 A2d 939 (2007). 19 Blackwell v. Wyeth, No. 112, September Term 2008, May 7, 2009. 20 State v. Blackwell, No 45, September Term, 2008, (May 14, 2009) the Court of Appeals looked at the other end of the expert opinion equation and excluded the testimony of a police officer regarding the defendant’s performance on the horizontal gaze nystagmus test. It did not question the science underlying the test or its general acceptance; but rather, the officer’s qualifications to administer and interpret the test results.


Trial Reporter / Summer 2009 35


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