The use of expert testimony in litigation is often a minefield of questionable “expertise” and even more questionable methodology. What was originally intended to allow scientists, engineers and doctors to explain complex situations, procedures or concepts has often turned into much more self-serving ammunition for trial. For example, hiring a roofer, or even another attorney, to explain how an insurance company “should” evaluate claims; hiring a professor to expound on what a law enforcement officer faced with quick, life or death decisions “should have done” in that moment; or hiring an economist to extrapolate the concept of a speeding ticket into a clever method of figuring punitive damages in a death case.
In Oklahoma, Senate Bill 453, signed into law this year and effective as of September 1, 2025, is a new, more stringent method for the courts to exercise their gatekeeping function and prevent “junk science” or questionable expertise from influencing a jury improperly. SB453 amends Title 12 § 2702 of the Oklahoma Evidence Code, which governs the use of expert testimony at trial.
The amendment updates the standard for admitting expert testimony, requiring the proponent of the expert witness to show that it is “more likely than not” that the testimony meets four reliability criteria: 1) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; 2) The testimony is based upon sufficient facts or data; 3) The testimony is the product of reliable principles and methods; and 4) The expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
The tightened standard aligns closely with the federal Daubert standard, shifting greater gatekeeping responsibility to judges to ensure that expert witness testimony is a proven application of science or other technical knowledge. The amendment is a subtle change in language that should have a great impact on the ability of the court to restrict such testimony. Effective September 1, the proponent of an expert witness will now need to show that it is more likely than not that their expert is truly an expert, and their testimony will actually assist the trier of fact, not simply provide a cover of expertise on what is essentially simply an argument. The previous version of §2702 did not contain the requirement of a showing that the witness will “more likely than not” be of assistance to the jury for all the above four elements.
It is the function of the jury to determine whether an act or omission is a violation of a standard of care, or to say what is “reasonable,” not a hired expert. Many times, these witnesses have the stamp of “expert” placed on them, which can give them an oversized appearance of importance to a jury, and this needs to be carefully considered by the court before the jury can hear such testimony. Normally in a court proceeding, someone’s opinion is simply that: an opinion. Accordingly, an opinion from a non-expert witness is only admissible in limited instances, as it’s not factual. An expert, however, can give an opinion, but the court needs to make a close and careful consideration if what they are actually allowing at trial is simply a paid opinion with very little specialized knowledge or reliable methodology in arriving at that opinion, and whether this is actually assisting the jury or just allowing one party to pile on with questionable testimony.
Certainly, there are instances where expertise is necessary and helpful, but this tighter standard will hopefully disallow much of the testimony that is generally presented as “trust me, I am an expert.” This newly heightened gatekeeping function is a necessary playing field adjustment to return trial testimony to a more fact-based scenario that allows a jury to make the determinations it needs to make without the undue influence of questionable experts at trial.
This article appeared in the August 14, 2025, issue of The Journal Record. It is reproduced with permission from the publisher.
