In 1993, the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.,1 shed the austere Frye2 “general acceptance in the scientific community” standard for admitting expert testimony, ruling that the Federal Rules of Evidence (specifically FRE 702) “occupied the field.”3Daubert arose from a suit against the manufacturers of Bendectin, an anti-nausea medication prescribed to the pregnant mothers of two plaintiffs who alleged the medication caused their children to have birth defects.

The Daubert court created an evidentiary “gatekeeper” role for trial court judges, requiring them to perform a two-pronged analysis when considering expert testimony: first asking is the evidence reliable, and second, is it relevant? Regarding reliability, the court reasoned that FRE 702 requires “the subject of an expert’s testimony be ‘scientific knowledge,’” scientific meaning having a “grounding in the methods and procedures of science.” Similarly, the “knowledge” must not be speculation but “derived by the scientific method” and “supported by appropriate validation – i.e.‘good grounds,’ based on what is known.”4 For the relevance prong, the trier of fact must ask whether expert testimony offered is “fit,” meaning it is “sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.”5

The Daubert court provided a set of general and nondefinitive observations to aid federal judges in their inquiries, sometimes referred to as the “Daubert factors:” 1) whether the theory or technique has been tested; 2) whether it has been subjected to peer review and publication; 3) what is the known or potential rate of error and the standards governing the technique; and 4) is there a scientific community in which the technique or theory is generally accepted.6 The Daubertframework through federal courts and Oklahoma state courts took unique paths but in time have grown increasingly in sync. The following article will discuss a brief history of Daubert and its progeny as well as developments in Daubert’s line in the Court of Appeals for the 10th Circuit and in Oklahoma.

EARLY DAUBERT 
In two additional cases (also known as the Daubert trilogy), the U.S. Supreme Court provided much-needed guidance to trial court judges on how to conduct its newly defined gatekeeping duty.7In 1997, in General Electric v. Joiner,8 the court held that abuse of discretion is the standard applicable to review of a district court’s decision to admit or exclude expert scientific evidence under Daubert. In Joiner, a city utility employee sued the manufacturers of electrical transformers and their fluid after he developed small cell lung cancer from exposure to polychlorinated biphenyls (PCBs) found inside the transformers. The Supreme Court reversed the 11th Circuit and found that plaintiff Joiner’s proffered experts relied on animal studies “so dissimilar to the facts presented in this litigation that it was not an abuse of discretion for the district court to have rejected the experts’ reliance on them.”9 Daubert and FRE 702 did not require “a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert,” and noted that a “court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.”10

Kumho Tire Company, Ltd. v. Carmichael11 extended Daubert’s general holding setting forth the trial judge’s “gatekeeping” obligation to expert testimony based not only on science, but also on “‘technical’ and ‘other specialized’ knowledge.” The Daubert factors were clarified as intended to be “flexible, neither necessary nor exclusive in all cases.”12 Kumho reiterated abuse of discretion as the standard of review for assessing 1) whether testimony should have been admitted or excluded by the trial court and 2) the procedure used by the trial court in making the reliability determination. A federal trial judge possessed the authority “to avoid unnecessary ‘reliability’ proceedings in ordinary cases where the reliability of an expert’s methods is properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert’s reliability arises.”13

The 2000 amendment to FRE 702 codified the Supreme Court’s decisions in Daubert and Kumhoand provided the standards for admissibility of expert opinion testimony: 1) the testimony is based upon sufficient facts or data, 2) the testimony is the product of reliable principles and methods and 3) the witness has applied the principles and methods reliably to the facts of the case.14

DAUBERT APPLICATION IN OKLAHOMA
In Taylor v. State, the Oklahoma Court of Criminal Appeals adopted Daubert and rejected the Frye“general acceptance test” for novel scientific evidence in state criminal proceedings.15 Most importantly, the court declined to retroactively apply Daubert to non-novel scientific subjects previously accepted as valid for expert testimony, effectively creating a list of sanctioned expert subjects where Daubert analysis was not required.16 After Kumho, the Oklahoma Court of Criminal Appeals held that Daubert should be applied to all novel expert testimony (including technical and specialized knowledge).17

In 2003, in Christian v. Gray,18 the Oklahoma Supreme Court adopted Daubert and Kumho for application in Oklahoma state civil actions. In Christian, the plaintiffs sued the owners and operators of a circus at the Oklahoma State Fair, alleging chemicals kicked into the air during the circus performance had caused them respiratory injuries. The Oklahoma Supreme Court assumed original jurisdiction over plaintiff’s appeal of an interlocutory order denying testimony from the plaintiff’s medical expert on causation. Christian concluded that the trial court had 1) failed to determine that the methods of plaintiffs’ expert were insufficient under the Daubert factors, “or some other factor determined to be appropriate in applying Daubert” and 2) had “challenged the expert’s conclusion,” without specifically linking “a deficient conclusion with either a faulty method or an exercise of ipse dixit by the expert.”19 The Christian court also agreed with the Oklahoma Court of Criminal Appeals’ decision in Taylor v. State to limit a Daubert inquiry to circumstances “where the reliability of an expert’s method cannot be taken for granted” and noted that the first step in a Daubert inquiry would thus include “an initial determination of whether the expert’s method is one where reliability may be taken for granted.”20

PROCEDURAL CONSIDERATIONS 
Mirroring the different approach taken by the state courts in Taylor and Christian, the necessary gatekeeping duties of the court under Daubert are not identical between federal and state proceedings. While a federal district court has discretion in the manner it conducts its Daubertanalysis (hearing, special briefing, etc.), “there is no discretion regarding the actual performance of the gatekeeper function.”21 The most common method to assess a Daubert motion is by conducting a Daubert hearing, but a hearing “is not specifically mandated.”22 First, the court should make a preliminary finding that the expert is qualified to testify (by examination of credentials), then the proponent of expert testimony must establish that the expert used reliable methods to reach his or her conclusions and that the expert’s opinion is based on a reliable factual basis.23

Specific findings on the record supporting its ruling to admit or exclude expert evidence are required by the federal district court so that reviewing courts may “determine whether it applied the relevant law and properly performed its gatekeeping function.”24 In a federal court bench trial, while Daubert’s standards must still be met, the usual concerns regarding unreliable expert testimony reaching a jury do not arise, and the inquiry is more relaxed.25

Practitioners should also keep in mind that the timeliness of objections have an important effect on federal court Daubert proceedings and review. Where a party fails to object to the reliability or relevance of an expert’s testimony at trial, an appellate court will review only for plain error.26 The trial judge must still ensure “that an expert’s testimony rests on a reliable foundation and is relevant, but Daubert does not mandate an inquiry questioning and challenging the scientific proffer absent a timely request by an objecting party.”27

In Weaver v. Blake, the 10th Circuit noted the importance of renewing objections to expert evidence at trial even after a Daubert hearing has taken place at the motion in limine stage.28 In Weaver, the trial court permitted the testimony of a police accident investigator expert over the in limine objection of the defendant but limited his testimony to matters of data and observations only, not analysis of the data. At trial, the judge modified his pretrial order and allowed some testimony as to cause of the accident; defendant moved for a mistrial. The 10th Circuit held there was no abuse of discretion and noted that the requirement for renewing objections at trial emphasized “it is generally not reversible error for a district court to revisit an issue that is the subject of a previous ruling on a motion in limine.”29

In the state court setting, a Daubert inquiry is limited to circumstances where the expert’s evidence is novel or where the reliability of an expert’s method cannot be taken for granted.30 Thus, a Daubert challenge must first include “an initial determination of whether the expert’s method is one where reliability may be taken for granted.”31 Where the topic “involved has ‘long been recognized as the proper subject of expert testimony,’ the testimony is not novel and no Daubert hearing is necessary.”32 The Oklahoma Court of Criminal Appeals, in Romano v. State,33 declined to retroactively apply Daubert to scientific subjects previously accepted as valid for expert testimony. This policy was recently reiterated and approved in Day v. State.34 Similar to federal court, trial court decisions concerning admission of evidence are reviewed on appeal using the abuse of discretion standard.35 Failure to raise a timely Daubert objection to expert testimony during trial will waive the error on appeal, in the absence of fundamental error.36

DEVELOPMENTS IN EXPERT TESTIMONY IN THE 10TH CIRCUIT AND OKLAHOMA
In 2013, the Oklahoma Legislature amended 21 O.S. §2702 governing expert witnesses to reflect the language in the 2000 FRE 702 (and therefore Daubert).37 Since federal court decisions can have persuasive value “when they construe federal evidence rules with language substantially similar to that in [Oklahoma] evidence statutes,” a sampling of 10th Circuit cases discussing Daubert since the early 2000s is instructive.38

In Champagne Metals v. Ken-Mac Metals, Inc.,39 the court held that the district court correctly excluded testimony from an economic expert who predicated his opinion about the defendant’s strength in one economic market (upstream) by relying on evidence drawn from another market (downstream). Because the expert, notwithstanding the arguments made by counsel on his behalf, failed to personally “provide a ‘plausible explanation based on sound economic theory’ to support substituting one market for the other,” the testimony was inadmissible.

Attorney General of Oklahoma v. Tyson Foods, Inc.40 upheld a district court’s exclusion of expert scientific testimony when the expert used polymerase chain reaction (PCR) analysis, a technique previously approved by federal case law, in a “novel and untested” manner. The court stated that “when experts employ established methods in their usual manner, a district court need not take issue under Daubert; however, where established methods are employed in new ways, a district court may require further indications of reliability.” Where a district court “looked to other indications of reliability, including those enumerated by the Daubert court, but could find none,” there was no abuse of discretion.

The 10th Circuit in United States v. De Lopez,41 upheld the district court’s admission of a border patrol agent as an expert witness testifying concerning the alien smuggling trade. The court reasoned that the agent “provided information about how smuggling operations work, why crossing a border patrol interior checkpoint is important, and the difficulty of apprehending an undocumented alien the further he or she moves away from the border,” all of which “[t]he average juror is unlikely to be aware.” In determining whether expert testimony will assist the trier of fact, district courts must “consider whether the testimony is within the juror’s common knowledge and experience, and whether it will usurp the juror’s role of evaluating a witness’s credibility.”42

Etherton v. Owners Ins. Co.43 provides an example of properly executed medical differential diagnosis testimony. Noting that “[t]his court has recognized that differential diagnosis can reliably determine causation,” the 10th Circuit upheld the district court’s admission of a physician’s testimony where the expert applied a three-step methodology to determine the injury’s cause.

United States v. Tenorio,44 discussed polygraph evidence in federal court and noted that “where polygraph evidence is not offered as scientific evidence, neither FRE 702 nor a per se rule against admissibility applies.”

For state court Daubert developments, in Scruggs v. Edwards,45 the Oklahoma Supreme Court retroactively applied Daubert and its progeny to an Oklahoma workers’ compensation claim that was based upon an injury that occurred prior to July 1, 2005, the effective date of two amendments concerning medical evidence to the Workers’ Compensation Act. The court assumed original jurisdiction as an extraordinary writ and held that Daubert and the updated FRE 702 were procedural legislation (and thus applicable to all actions, even those pending) and did not impact the substantive law required to prove causation in an inhalation workers’ compensation case.

In Collier v. Reese,46 the Oklahoma Supreme Court reaffirmed “that polygraph evidence is inadmissible in criminal and civil proceedings,” though discussion of the issue was limited. In her opinion, Justice Kauger noted the lack of “consensus among the federal courts, the state courts, or the scientific community about the reliability of polygraph techniques” and deferred the issue back to the trial court for Daubert hearing.

The Oklahoma Court of Civil Appeals applied a Daubert analysis to uphold the medical report of a chiropractor in Adecco Inc. v. Dollar.47 When Ms. Dollar re-opened her workers’ compensation claim and alleged further injury of a mental nature (psychological overlay), the trial court accepted the report of her chiropractor over the “employer’s probative value objection that ‘a chiropractor administering a Zung Depression Test’ does not ‘constitute[ ] a medical expert within the meaning of the Dauber[t] cases in Oklahoma.’” The Oklahoma Supreme Court held there was no abuse of discretion in admitting the chiropractor’s assessment for the reasons that: 1) though the Oklahoma Supreme Court has never held chiropractors should be considered equivalent to that of a medical doctors, the Workers’ Compensation Act defines “physician” to include licensed chiropractors; 2) physicians are generally presumed competent to testify as experts on matters “concerning mental condition;” 3) the chiropractor in question had testified on psychological overlay before the Workers’ Compensation Court before; and 4) the chiropractor’s opinions were “formulated in accordance with AMA Guidelines.” Two years after Dollar and on nearly identical facts (including the same chiropractor), the Oklahoma Supreme Court reversed the official position on chiropractors’ mental health opinions in Joe Brown Co. v. Melton.48 The court held that “a chiropractor is not qualified as an expert in diagnosing psychological illnesses such as depression,” and therefore “[t]he report of a chiropractor as an expert in the field of psychology, as to a claimant’s psychological overlay, is inadmissible.”

In Moore v. Robert Blackwell & Farmers Ins. Co.,49 the Oklahoma Court of Civil Appeals opined at length on the relevance prong of Daubert. Plaintiff Terry Moore appealed his negligence action against Robert Blackwell after the jury returned a verdict in favor of Blackwell. Moore’s 12-year-old son had been walking along an I-35 service road in Norman, at night and crossed the center line when Robert Blackwell’s vehicle approached in the dark, striking the boy. At trial, Blackwell introduced testimony of two expert witnesses, an accident reconstructionist and the investigating officer. Defendants objected at trial alleging the experts would not assist the trier of fact, should not be allowed “to testify on issues that should have been reserved for the jury,” and that no scientific evidence is necessary for a jury to make a determination of whether a driver negligently operated a vehicle. In agreement with its previous findings in Gabus v. Harvey, the court ultimately held that the opinion of an investigating police officer or an accident reconstructionist as to whose fault caused the accident was prejudicial and not helpful to a jury “as it told the jury which conclusion to draw.”

In Carnahan v. Chesapeake Operating, Inc.,50 the Oklahoma Court of Civil Appeals conducted an in-depth Daubert analysis of the credentials and methodologies of three oil field experts, finding that all experts were properly admitted to testify at the trial. Expert Keen used a differential analysis methodology for determining the cause of contamination to the plaintiff’s land, considering possible sources of contamination like “the Bettye # 1-2 Well, other wells, pipelines, surface spills, and leaks from pits during drilling” and ruling out “illegal dumping.” He also “checked records, eliminated other well sources, and checked for but found no documentation for onsite spills.” Similarly, expert Black visited the site multiple times, conducted tests and took samples. Artman’s opinion were “based upon common and customary measures used by appraisers applying relevant industry guides,” and he had “sufficient and relevant experience and education to form his conclusions.”

CONCLUSION
It has been 24 years since Daubert v. Merrell Dow Pharmaceuticals, Inc. established the key principles of relevance and reliability and the gatekeeping role for trial courts. A legion of federal case law, shaping both the court’s duty and expectations for expert witnesses has resulted. Though Oklahoma state courts applying Daubert diverged to an extent, emphasizing the application of Daubert to novel evidence, they are quickly laying a foundation as solid as that of the federal circuits in procedure and judicial examination.

ABOUT THE AUTHOR
Wendi Kotal is a former staff attorney for Legal Aid Services of Oklahoma Inc. – Ardmore Law Office, currently stationed in Germany with her active duty Air Force husband. Native to Texas, Mrs. Kotal is a graduate of Florida Coastal School of Law and Stephen F. Austin State University.

1. 509 U.S. 579 (1993).
2. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
3. Daubert, 509 U.S. at 587.
4. Id. at 589-90.
5. Id. at 591.
6. Id. at 594.
7. Id. at 598 (Renquist, C.J., concurring in part and dissenting in part).
8. 522 U.S. 136 (1997).
9. Id. at 144.
10. Id. at 146.
11. 526 U.S. 137 (1999)
12. Id. at 143-44. 
13. Id. at 152.
14. Fed. R. Evid. 702; see also 702 Committee Notes. 
15. Taylor v. State, 889 P.2d 319, 328 (Okla. Crim. App. 1995).
16. Id. at 339; see Day v. State, 303 P.3d 291 (Okla. Crim. App. 2013) (Shaken Baby Syndrome evidence did not require Dauberthearing); Webster v. State, 252 P.3d 259 (Okla. Crim. App. 2011) (latent fingerprint individualization testimony permitted);Simpson v. State, 230 P.3d 888, 901 (Okla. Crim. App. 2010) (police officers allowed to give opinion testimony based on training and experience); Anderson v. State, 252 P.3d 211, 213 (Okla. Crim. App. 2010) (Daubert scientific foundation not applicable to field sobriety tests such as HGN); Jones v. State, 128 P.3d 521, 547 (Okla. Crim. App. 2006) (declining to rule on admissibility of chemical composition comparison of lead bullets but finding no error); Stouffer v. State, 147 P.3d 245, 266 (Okla. Crim. App. 2006) (blood spatter and crime scene reconstruction testimony admissible under Daubert); Wood v. State, 959 P.2d 1 (Okla. Crim. App. 1998) (PCR method of DNA testing satisfied Daubert); Bryan v. State, 935 P.2d 338 (Okla. Crim. App. 1997) (materials analysis of lead composition was non-novel); Romano v. State, 909 P.2d 92 (Okla. Crim. App. 1995) (approving blood spatter analysis without Daubert analysis).
17. Harris v. State, 13 P.3d 489, 492-493 (Okla. Crim. App. 2001).
18. 65 P.3d 591 (Okla. 2003).
19. Id. at 612.
20. Id. at 599-600.
21. Goebel v. Denver & Rio Grande Western Railroad, 215 F.3d 1083 (10th Cir. 2000) (citing Kumho Tire, 526 U.S. at 158-59 (Scalia, J., concurring)). 
22. Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000).
23. Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232-33 (10th Cir. 2005); see United States v. Nacchio, 555 F.3d 1234, 1258 (10th Cir. 2009) (en banc) (expert witness’ testimony can be based on experience if it is the right type of experience and supports a conclusion that an expert’s opinion on a subject is reliable).
24. Burlington Northern and Santa Fe Ry. Co. v. Grant, 505 F.3d 1013 (10th Cir. 2007); The Procter & Gamble Co. v. Haugen, 427 F.3d 727 (10th Cir. 2005).
25. Seaboard Lumber Co. v. United States, 308 F.3d 1283, 1302 (Fed.Cir.2002).
26. McKenzie v. Benton, 388 F.3d 1342, 1350 (10th Cir. 2004) (reviewing for plain error where party objected to expert testimony on qualifications, but then argued relevance on appeal).
27. Macsenti v. Becker, 237 F.3d 1223, 1230 (10th Cir. 2001).
28. Weaver v. Blake, 454 F.3d 1087, 1092 (10th Cir. 2006).
29. Id.
30. Christian v. Gray, supra at 599.
31. Day v. State, 303 P.3d 291, 295 (Okla. Crim. App. 2013). 
32. Harris v. State, supra at 493.
33. 909 P.2d 92, 112 (Okla. Crim. App. 1995).
34. 303 P.3d 291 (Okla. Crim. App. 2013).
35. Myers v. Missouri Pac. R. Co., 52 P.3d 1014, 1033 (Okla., 2002).
36. Covel v. Rodriguez, 272 P.3d 705, 709 (Okla., 2012).
37. 2013 O.S.L. 15.
38. Christian, supra at 597.
39. 458 F.3d 1073, 1079 (10th Cir. 2006).
40. 565 F.3d 769 (10th Cir. 2009).
41. 761 F.3d 1123, 1137-38 (10th Cir. 2014).
42. Id. (quoting United States v. Garcia, 635 F.3d 472, 476-477 (10th Cir. 2011)).
43. 829 F.3d 1209, 1221-22 (10th Cir. 2016).
44. 809 F.3d 1126 (10th Cir. 2015).
45. 154 P.3d 1257, 1262 (Okla. 2007).
46. 223 P.3d 966, 973-74 (Okla. 2009).
47. 254 P.3d 729, 733-34 (Okla. Civ. App., 2011).
48. 307 P.3d 342, 346 (Okla. 2013).
49. 325 P.3d 4, 11 (Okla. Civ. App. 2014); Gabus v. Harvey, 678 P.2d 253 (Okla. 1984).
50. 347 P.3d 753, 762-64 (Okla. Civ. App. 2014).

Originally published in the Oklahoma Bar Journal -- OBJ 89 pg. 26 (May 2018)