[DISCLOSURE: Although I do not represent the defendant hospital in Jabbi v. Adventist Healthcare, Inc. No. 2071 (Sept. Term, 2023) (March 5, 2025) (reported), I often represent Maryland hospitals seeking to exclude causation experts favored by the Plaintiffs’ Bar. That said, I have devoted more of my professional life to the admissibility of causation-expert testimony under Rule 5-702 and the impact of Maryland’s adoption of the Daubert standard in 2020 than to any other subject. The Appellate Court’s reported Jabbi opinion merits not only commentary but also certiorari.]
Maryland cannot simultaneously adopt Daubert, as the Supreme Court of Maryland expressly did in its 2020 Rochkind v. Stevenson decision, but subsequently reject General Electric Co. v. Joiner’s bright-lineabuse-of-discretion standard—as the Appellate Court apparently did in the recent reported decision Jabbi v. Adventist Healthcare, Inc., No. 2071 (Sept. Term, 2023) (March 5, 2025) (reported).Because the defendant would have been entitled to summary judgment if the expert was excluded, the Jabbi court viewed the challenged expert testimony in the “light most favorable” to the expert. Allowing Jabbi to stand as a precedential opinion would destroy the clarity that adopting Daubert provided and open a second era of “jurisprudential drift” for Maryland’s expert-testimony case law.
Recent History of Rule 5-702 and Daubert
Since 2020, when the Supreme Court of Maryland handed down the landmark Rochkind v. Stevenson opinion, adopting the Daubert standard and holding that “all expert testimony is reviewed under the abuse of discretion standard,”much ink has been spilled on exactly what that means. 471 Md. 1, 37 (2020)(emphasis added) (citing Gen’l Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997)).
Despite Daubert’s adoption, the path for reliable review of 5-702 rulings to admit or exclude expert testimony has not been smooth. The Supreme Court has reversed the Appellate Court’s post-Rochkind 5-702 rulings in State v. Matthews, 479 Md. 278 (2022), Oglesby v. Baltimore School Associates, 484 Md. 296 (2023), and Katz, Abosch, Windesheim, Gershman & Freedman, P.A. v. Parkway Neuroscience and Spine Institute, LLC, 485 Md. 335 (2023).In Abruquah v. State, 483 Md. 637 (2023), on a bypass petition, the Supreme Court split 4-3 and reversed the trial court’s admission of expert testimony. The Supreme Court also addressed Rule 5-702’s proper application in Frankel v. Deane, 480 Md. 682 (2022), vacating the Appellate Court’s application of the Daubert standard. Id. at 714-15.
This jurisprudential turbulence prompted Justice Booth to write a lengthy separate concurrence in Katz, Abosch, in which she proposed a closer embrace of the standards that various federal appellate courts use to review Daubert rulings for abuse of discretion. See 485 Md. at 399-407 (J. Booth, concurring). For my part, I have been commenting on the evolution of Maryland Rule 5-702 almost every step of the way.[1]
When Rule 5-702 Meets 2-501, Each Rule Must Stay In Its Lane.
A fundamental point that trial and appellate judges continue to struggle with is the relationship between Rule 5-702 (admissibility of expert testimony) and Rule 2-501 (summary judgment). When applying only one of these rules, courts rarely struggle to articulate the correct standard.
Experts are evaluated under Rule 5-702’s three elements (qualifications, fit, and sufficient factual basis), each of which must be satisfied by the proponent of the testimony and by a preponderance of the evidence. The FRE 702 Rules Committee even amended the rule in December 2023 to clarify and emphasize that judges, as “gatekeepers,” must ensure that each required element is met by a preponderance of the evidence. FRE 702, Notes of Advisory Committee on 2023 Amendments. There is no presumption in favor of admitting expert testimony or rejecting Daubert challenges to the sufficiency of the opinion’s factual basis as “going to the weight of the evidence” and letting the jury sort it out. See id. Although Daubert inquiries can be a heavy lift, courts generally know what the rules are and try to apply them correctly. Under both Daubert and Rochkind, reviewing courts apply deferential abuse-of-discretion review to all trial-court 5-702 rulings.
Courts are generally even more reliable when applying the well-settled Rule 2-501 standard for summary-judgment motions, where the rules clearly favor the non-movant. A movant is entitled to summary judgment only if a non-movant cannot prove its prima facie case with all disputed facts and reasonable inferences drawn in its favor (i.e., when evidence is viewed in the light most favorable to the non-movant). Reviewing courts apply non-deferential de novo review to all 2-501 rulings.
The judicial wires often get crossed when a Rule 5-702 motion, if granted, would prompt an immediate, undeniable motion for summary judgment under Rule 2-501. Confusion is even more likely when a single motion is filed under both Rules 5-702 and 2-501 on the basis that summary judgment would be required if the motion to exclude the expert is granted.
Although Rule 5-702’s standards DO NOT CHANGE when the plaintiff’s case collapses without the expert’s testimony, some courts still think that they do. The proximity of the expert challenge and often-immediate request for summary judgment too often prompts judges to believe that the admissibility of the testimony must be viewed in the light most favorable to the expert’s admission. That is fundamentally wrong. Yet even the Supreme Court of Maryland—before it adopted Daubert—slipped into this error in a 2014 footnote in Hamilton v. Kirson, 439 Md. 501, 521 n.11 (2014), and a year later in Roy v. Dackman, 445 Md. 23, 38-40 (2015), stating in both opinions that expert admissibility standards are lowered when excluding the expert would end the case.
Apparently, after 2015, no reported decision has cited Hamilton or Roy for this proposition. And the 2020 Rochkind holding simply cannot be reconciled with either case’s view of Rule 5-702 because Joiner v. General Electric, 522 U.S. 136 (1997), squarely addressed what standards of review apply to a case-dispositive exclusion of expert testimony. Joiner held that, when reviewing a decision to preclude expert testimony, the abuse-of-discretion standard remains controlling—regardless of the consequences of the expert’s preclusion. Joiner, 522 U.S. at 142-43. Holding otherwise would ironically create a safe haven for unreliable expert opinions when they are crucial to a case—when even-handed application of the Daubert standards is most important to a fair trial.
The federal Eleventh Circuit had wrongly held that a case-dispositive ruling that found expert testimony inadmissible should have a “particularly stringent” review on appeal because it resulted in summary judgment. Joiner v. General Electric Co., 78 F.3d 524, 529 (11th Cir. 1996). The Supreme Court’s Joiner decision promptly corrected the error because it saw that “particularly stringent” review conflicted with an abuse-of-discretion standard. Its holding clarified that, on “a motion for summary judgment, disputed issues of fact are resolved against the moving party,” but “the question of admissibility of expert testimony is not such an issue of fact, and is reviewable under the abuse of discretion standard.” 522 U.S. at 142-43 (emphasis added). That holding settled the matter for all jurisdictions thatuse the Daubert standard. And, after Rochkind, Maryland is one of those jurisdictions.
Following the Supreme Court of Maryland’s adoption of the Daubert standard, the Appellate Court cannot carve out a special, more stringent standard of review for Rule 5-702 rulings that preclude expert testimony essential to a party’s case. After Daubert, the Fourth Circuit has consistently applied abuse-of-discretion review to decisions on the admissibility of expert testimony—even if case-dispositive—because “the trial judge must have considerable leeway in deciding” whether a particular expert’s testimony is reliable. Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 200 (4th Cir. 2001) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1998)). This is true even when the “question of admission is close” and preclusion ends the case. See Cavallo v. Star Enterprise, 100 F.3d 1150, 1159 (4th Cir. 1996).
The Jabbi Decision Gets 5-702 Review Wrong
In Jabbi, we see the Appellate Court conflating expert admissibility and summary judgment almost from the outset of its opinion. Although the appellant framed her issues presented as questions of expert admissibility, the Appellate Court’s opinion re-framed them into one issue presented that conflates—or at least crowds—the Rule 5-702 and summary-judgment inquiries: “Did the Circuit Court abuse its discretion in precluding appellants’ expert witness testimony, which in turn formed the basis for its grant of summary judgment?” Slip op. at 1 & n.2 (emphasis added). Admissibility under Rule 5-702 and summary judgment are separate, sequential inquiries. The standards for the subsequent summary-judgment inquiry cannot bleed into the threshold inquiry of expert admissibility.
After Rochkind and Joiner, the impact of a 5-702 ruling on summary judgment is simply not relevant to the 5-702 ruling. The inquiries proceed sequentially—but separately. The expert testimony is either admissible or inadmissible under 5-702. The trial court’s decision to admit or exclude is reviewed for abuse of discretion. If inadmissible, the trial court is often left with a simple legal question: Can this case proceed without admissible expert testimony that is required to prove the case? Of course, as a matter of law, it cannot.
Conflating expert admissibility with summary judgment, the Jabbi court’s reported opinion repeatedly makes the fundamental error of reviewing the evidence supporting the trial court’s decision to exclude expert testimony “in the light most favorable to appellants,” while incorrectly stating that the trial court, which must apply a preponderance-of-the-evidence test when making its 5-702 ruling, “must not weigh the evidence” when doing so:
- “The only evidence before the court was the extensive deposition testimony of appellants’ experts (and the literature they relied on), and it is pellucid that on summary judgment the court must view all inferences from the underlying facts in the light most favorable to the nonmoving party. In evaluating a motion for summary judgment, the court must not weigh the evidence or make credibility determinations.” Slip op. at 22 (emphasis added).
- “Based on the evidence in this record, and viewing all inferences in a light most favorable to appellants, the court’s conclusion that the experts’ testimony relied ‘on speculation and assumptions that are not supported by the literature or the facts presented’ is demonstrably incorrect.” Id. at 23 (emphasis added).
- “Again, viewing this evidence in a light most favorable to appellants, the court abused its discretion in perfunctorily concluding that the appellants’ experts’ testimony was speculative and ‘not supported by the literature or the facts presented.’” Id. at 24 (emphasis added).
The Jabbi Appellate Court ultimately returned to the abuse-of-discretion standard only after first reviewing the admissibility ruling in the light most favorable to the excluded expert. It found abuse of discretion because it found the testimony admissible if viewed in the light most favorable to the excluded expert. See slip op. at 25. That is the antithesis of abuse-of-discretion review and plain error under Joiner and Rochkind.
Given these errors in a reported opinion, and the importance of the standard of review for Rule 5-702 rulings, a petition for certiorari seems very likely to be filed. Left as-is, the Jabbi opinion would leave trial courts and practitioners guessing on the proper standards for Rule 5-702 challenges. More guidance is desperately needed.
[1] See also Derek Stikeleather, Abuse of Discretion Under Rule 5-702, 55 U. Balt. L.F. (2025) (forthcoming July 2025); Maryland Appellate Practice treatise, Ch. 21, Applying the Standard of Appellate Review in Civil Cases, Rule 702 Preclusion of Expert Witness at 364-65.
This post originally appeared on the Maryland Appellate Blog, the blog of the Maryland State Bar Association Litigation Section.
