The Oklahoma Bar Journal January 2024

to not only examine whether the principles and methods employed were reliable but to go a step further and evaluate whether the expert’s opinion itself is also reli able. As the Advisory Committee noted, the change seeks to ensure an expert “stays within the bounds of what can be concluded by a reli able application of the expert’s basis and methodology.” 5 Therefore, a proponent of expert testimony needs to now show that both the means and conclusion reached by the expert are reliable. Taken together, these amend ments further empower the court and will necessarily make it more difficult to admit expert testimony than under the prior version of the rule. The new Federal Rule of Evidence 702 places a heavier burden on litigants to demonstrate the reliability of expert testimony. prompted in part by the perceived misapplication of the rule fueled by the Supreme Court’s seminal decision in Daubert v. Merrill Dow Pharmaceuticals , 509 U.S. 579 (1993), and its progeny. Daubert was largely silent on the topic of the appropriate standard to apply to the Rule 702 elements: “And while Daubert mentions the standard, Daubert does so only in a footnote in the midst of much discussion about the liberal standards of the Federal Rules of Evidence.” 6 The footnote in question consists largely of a quotation to Rule 104(a) that addresses preliminary ques tions governing privileges, witness qualification and admissibility of evidence, and it counsels that such threshold determinations are gen erally to be made by the court. 7 The footnote concludes with the vague proviso that “[t]hese matters should As the Advisory Committee eluded, these changes were

of a preponderance of the evidence standard, applicable to all four elements of the rule, by adding that the court must find “it is more likely than not that” the proponent of the evidence has satisfied Rule 702’s requirements. According to a memorandum prepared by the Advisory Committee on Evidence Rules, this change was prompted by the perceived misapplication of Rule 702 by a substantial num ber of courts: “[T]he Committee resolved to respond to the fact that many courts have declared that the reliability requirements set forth in Rule 702(b) and (d)—that the expert has relied on sufficient facts or data and has reliably applied a reliable methodology— are questions of weight rather than admissibility, and more broadly that expert testimony is presumed to be admissible.” 4 Finally, the amendment’s emphasis on greater judicial scru tiny of expert witness testimony continues with additional lan guage in 702(d). That change adds a requirement that “the expert’s opinion reflects a reliable appli cation of the principles and meth ods to the facts of the case.” This change appears to empower courts

(a) the expert’s scientific, tech nical, or other specialized knowledge will help the trier of fact to understand the evidence or to deter mine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert’s opinion reflects The changes, while somewhat subtle, serve a number of pur poses. First, the new Rule 702 cements the court’s “gatekeeper” function of keeping unhelpful and unreliable expert testimony from the jury. This change makes clear that it is the judge, not the jury, who determines Rule 702’s elements have been met. 3 Once the determination has been made to admit expert testimony, mat ters of weight are left to the jury and remain proper subjects for cross-examination. Second, the amended Rule 702 provides further clarity through the express inclusion a reliable application of the principles and methods to the facts of the case.

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

38 | JANUARY 2024

THE OKLAHOMA BAR JOURNAL