Following Tom Cullen’s oral argument in the Maryland Court of Appeals, the state’s high court has handed down a precedential opinion reasserting that trial judges must ensure that all expert opinions have a sufficient factual basis before they can be shared with a jury. In doing so, it reversed the intermediate Court of Special Appeals, which had affirmed the Baltimore City trial court, holding that both courts erred in their application of Maryland Rule 5-702(3). Rochkind v. Stevenson, No. 76, SEPT. TERM, 2016, 2017 WL 2952984 (Md. July 11, 2017). Plaintiff in Rochkind alleged that childhood exposure to lead had caused her to develop Attention Deficit Hyperactivity Disorder (“ADHD”), a disorder whose cause is unknown but strongly associated with genetics. Although it is undisputed that lead exposure can cause cognitive deficits, no credible research had ever shown that lead specifically causes ADHD, which has been closely studied for decades. Yet, the trial judge allowed Plaintiff to designate a pediatrician to opine that, despite the strong history of ADHD in Plaintiff’s family, lead probably caused her ADHD, and the intermediate appellate court affirmed finding that the medical literature that the pediatrician cited as supportive provided a “sufficient factual basis” for the opinion under Rule 5-702(3).
Working collaboratively among firms, Goodell DeVries (Tom Cullen and Gus Themelis) and its co-counsel prevailed upon the Court of Appeals to see that—despite Plaintiff’s assurance—the literature did not provide a sufficient factual foundation for the conclusion that the expert drew from it. And such unsupported opinions are not left to a jury to sort out in a “battle of the experts.” Instead, it is the trial judge’s non-delegable duty to see that Rule 5-702(3) is truly satisfied. This principle is crucial to defendants in product-liability, medical-malpractice, and any other cases where plaintiffs try to argue that an expert’s credentials and assurance that certain studies support the proffered opinion meets the foundational threshold for Maryland experts. The Rochkind opinion holds that trial judges must probe further and reject speculative opinions that contain an analytical gap or whose conclusions do not logically flow from the data.