The Oklahoma Bar Journal January 2024

with the new Rule 702. Such a change would be consistent with Oklahoma’s practice of more or less adopting the Federal Rules of Evidence and Federal Rules of Civil Procedure wholesale. Should this occur, presumably the impact would be similar to that on the federal level, with Oklahoma courts imposing more stringent controls on expert qualification and admissibility of opinions. A second option would be for the Oklahoma Supreme Court to, in an appropriate case, simply adopt the new Rule 702 view absent amendment by the Legislature to Section 2702. After all, Oklahoma’s present expert witness regime is based on federal case law, which itself was at least ostensibly based on Rule 702. At present, Oklahoma courts utilize a framework based on Daubert and its progeny – Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137 (1999) – as first adopted in Christian v. Gray , 2003 OK 10, 65 P.3d 591. Section 2702 is cited only twice in the body of Christian , while Daubert appears dozens of times. Given its reliance on Daubert as opposed to Rule 702 or Section 2702, the court in Christian only addressed the appropriate eviden tiary standard for admitting expert testimony in passing without expressly adopting a standard the proponent of the testimony must meet. 10 Now that the rule on which Daubert was at least in part based is set to change, it would make sense for courts to follow suit and adopt the new Rule 702 standards. Yet another option would be to declare that the new amend ments did not alter the state of Oklahoma law at all. At least one federal appellate circuit has taken the position that Rule 702 always required each element to be met

by a preponderance of the evi dence and that the new revisions simply clear up any judicial mis understanding to the contrary: On April 30, 2021, the Committee unanimously approved a proposal to amend Rule 702, part of which is motivated by its observation that in “a number of federal cases ... judges did not apply the preponderance standard of admissibility to [Rule 702’s] requirements of sufficiency of basis and reliable application of principles and methods, instead holding that such issues were ones of weight for the jury.” In order to address this “pervasive problem” both of the current draft amendments to Rule 702 would contain the following language in the advisory com mittee’s notes:

be established by a preponder ance of proof.” 8 Per the Advisory Committee, the amended Rule 702 is intended to clear up any linger ing confusion and establish that “admissibility requirements are to be determined by the court under the preponderance standard.” 9 The focus of the new rule will require further consideration of litigants selecting experts who they believe will meet the now-clarified preponderance of the evidence standard. The new rule will require litigants to ensure their experts are armed with the appropriate meth odologies and principles in order to meet this threshold or fear the risk of being stricken by the court applying this heightened standard. Similarly, expert conclusions must now also be shown to be reliable. The new Federal Rule of Evidence strengthens and reinforces the court’s gatekeeping role to ensure experts with unreliable methodol ogies and principles and unhelpful or unfounded conclusions never reach a jury. The importance of litigants understanding and con sidering the intricacies of the new rule is vital to the selection and presentation of expert witnesses. The new Federal Rule of Evidence 702 is bound to bring about addi tional challenges in Oklahoma fed eral courts to experts who lack the requisite knowledge and expertise in relation to the facts of the given case or who come to court with unreliable opinions.

[U]nfortunately many courts have held that the critical questions of the sufficiency of an expert’s basis [for his testi mony], and the application of the expert’s methodology, are generally questions of weight and not admissibility. These rulings are an incorrect application of Rules 702 and 104(a) and are rejected by this amendment. 11

Regardless of the path chosen, it seems inevitable that Oklahoma courts will have to eventually acknowledge the revised Rule 702 and respond in some fashion. How and when that occurs are open questions. What is clear though is that the standard for qualification and admissibility of expert wit ness testimony will likely become more stringent as a result.

CHANGES TO OKLAHOMA LAW?

What do the amendments to Rule 702 mean for practice in Oklahoma courts, if anything? The first possibility, of course, is that the Legislature amends Section 2702 to bring it in line

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.

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THE OKLAHOMA BAR JOURNAL