The Supreme Court of Oklahoma recently reviewed a breach of contract case, in which the Plaintiffs seek compensation for an expert’s failure to provide competent expert witness services.  Do you need an expert to prove that an expert witness’ work is substandard? Supreme Court says no, but only if a reasonable layperson can determine that the expert witness did not prepare an accurate and veritable opinion.


In the underlying case, the Plaintiffs sued an oilfield waste disposal facility alleging that it polluted the groundwater on their property and caused the deaths of their cattle. They hired a hydrogeologist expert witness to conduct tests and gather empirical data.  The expert’s role was to render a scientifically supportable expert opinion.

The defense attorney grilled the expert witness over a three-day period in his deposition. The expert testified that he did not know whether certain protocols were followed in sample testing and pointed out errors in his report. When asked about verifying calculations on the second morning of his deposition, the expert told counsel that he “was too tired” to go over his report and that he was “a busy person.” The expert knew his report contained misplaced bars on graphs and questionable numbers. The expert also testified he was not certain that the wells complied with the Environmental Protection Agency because he had not read them and that the agency would not accept his data as reliable.  Shortly after the expert’s deposition concluded, he discontinued his assistance in the litigation. While the expert insisted that he was fired, the Plaintiffs said he quit, which was supported by trial testimony.

The Plaintiffs settled the pollution case, but sued the expert witness alleging negligence and breach of contract for his failure to provide scientifically supportable information for the suit. At trial, the jury awarded the Plaintiffs more than $400,000. The expert filed a motion for a new trial or, in the alternative, a motion for judgment notwithstanding the verdict, claiming that the Plaintiffs’ did not present an expert in hydrogeology to counter his scientific conclusions. The trial court denied these motions.

The expert, appealed and the Court of Civil Appeals reversed the decision.  The Court of Appeal held that the trial court erred by failing to require the Plaintiffs to present an expert witness to refute the expert’s testimony for the purpose of establishing that his actions amounted to a breach of contract in the underlying case.

When reviewed by the Supreme Court, Justice White wrote that, although expert testimony is ordinarily necessary to establish causation in professional negligence cases, one was not required if the element of damage lies within the common knowledge of lay persons. The expert’s admissions were sufficient to demonstrate his substandard performance in preparing expert materials.  Additional testimony confirmed that the expert did not prepare accurate reports, which could be empirically supported or shown to comply with governmental standards. The expert’s contradictory statements were sufficient to cause a reasonable juror to question his veracity. As a result, Justice White stated that it was unnecessary to present an expert witness because the average layperson could conclude that the expert had not performed the preparations necessary to produce a viable opinion.

Even though the Plaintiffs did not call an expert to testify concerning the opinions offered by the hydrogeologist in the underlying case, Justice White said the jury heard plenty of testimony—easily understood by any lay person—that demonstrated the shortcomings in the expert’s work in the litigation. Further, White’s opinion stated that the expert’s testimony presented enough evidence from which the jury could have determined that the report he submitted was subpar. Supreme Court Justice wrote that “under these unique facts,” it was not necessary that the Plaintiffs present expert testimony by another hydrogeologist to counter the expert’s conclusions in the underlying litigation.  The court emphasizes that it does not stand for the proposition that a losing party may recover expert witness fees merely because they did not prevail.

By Kurt Mattson, J.D., LLM

20+ Years of Experience in the Legal Industry