MVA Litigation

Does expert evidence that is offered in support of class certification need to be scientifically reliable in order to be admissible at the class certification stage? While the Circuit Courts are reportedly split on the application of Daubert at the class certification stage, a look behind the terminology used by the courts (full vs. limited or tailored Daubert review) reveals that the courts consistently have required that the admissibility, i.e., the scientific reliability and relevance, of the expert evidence offered in support of class certification be determined at the class certification stage. The purpose of a Daubert review is not to determine the weight or persuasiveness of the expert evidence offered with respect to the merits of the case.

This question is apparently a novel one for the appellate courts, having first been directly addressed in 2010 by the Seventh Circuit Court of Appeals in American Honda Motor Co., Inc. v. Allen, 600 F. 3d 813, (7th Cir. 2010) (per curium). Although the Seventh Circuit used the phrase “full Daubert review” to describe the extensiveness of the court’s inquiry at the class certification stage, it expounded upon the depth and focus of such a review by explaining that “[i]f the challenge is to an individual's qualifications, a court must make that determination ‘by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness's testimony.’ The court must also resolve any challenge to the reliability of information provided by an expert if that information is relevant to establishing any of the Rule 23 requirements for class certification.” Id. at 816 (citations omitted). Although explicitly stating that it had doubts as to the reliability of the expert evidence offered to support class certification, and even in the face of a direct challenge by the opposing party to the scientific reliability of the evidence offered, the district court had failed to make a determination in that instance and certified the class anyway. The Seventh Circuit remanded the case and vacated the district court’s denial of Honda’s motion to strike and its order certifying a class. Id. at 819.

Ninth Circuit and Eighth Circuit cases decided since American Honda seemingly would produce the same result, although the courts have used phraseology that suggests a less extensive Daubert review may be required at the class certification stage. The Ninth Circuit in Dukes v. Wal-Mart Stores, Inc., 603 F. 3d 571, 602-03 (9th Cir. 2010) stated that, “[a]t the class certification stage, it is enough that [the expert] presented scientifically reliable evidence tending to show that a common question of fact … exists with respect to all members of the class.” (emphasis added). Notably, the court explicitly stated that the evidence must be scientifically reliable, in line with the Seventh Circuit’s ruling in American Honda.

In Dukes, it does not appear that the court concluded that Daubert does not apply at the class certification stage. Rather, it acknowledged that had the District Court conducted a Daubert analysis it would have been fruitless in that case because Wal-Mart did not challenge the expert’s methodology or argue that his findings were irrelevant. Wal-Mart “challenged only whether certain inferences can be persuasively drawn from his data. But because Daubert does not require a court to admit or exclude evidence based on its persuasiveness, but rather requires a court to admit or exclude evidence based on its scientific reliability and relevance… testing Dr. Bielby's testimony for "Daubert reliability" would not have addressed Wal-Mart's objections.” Id. at 602 (emphasis added)(citations omitted).

The Eight Circuit similarly ruled on a case in which there were no challenges raised to the reliability or relevance of the expert evidence offered to support class certification – which is the focus of a Daubert review. See In re Zurn Pex Plumbing Products Liability Litigation (8th Cir. 2011). The parties “agree[d] that [the experts] are well qualified in their respective fields and that they used generally recognized and reliable methodologies,” but they disagreed as to whether “the district court should determine at the class certification stage, and before merits discovery has even commenced, whether or not the expert opinions will ultimately be admitted at trial.” Id. The Eighth Circuit approved of what it referred to as the District Court’s "’tailored’" Daubert analysis, which “examined the reliability of the expert opinions in light of the available evidence and the purpose for which they were offered.” Id. (emphasis added).

This “tailored” analysis approved by the Eighth Circuit really does sound similar to the “full” review defined by the Seventh Circuit, i.e., that ‘’[t]he court must also resolve any challenge to the reliability of information provided by an expert if that information is relevant to establishing any of the Rule 23 requirements for class certification,” American Honda, 600 F. 3d at 816 (emphasis added). It also sounds similar to the standard set forth by the Ninth Circuit, i.e., “[a]t the class certification stage, it is enough that [the expert] presented scientifically reliable evidence tending to show that a common question of fact … exists with respect to all members of the class,” Dukes, 603 F. 3d 571 at 602 (emphasis added).

In an unpublished opinion, the Eleventh Circuit has agreed with the Seventh Circuit’s standard set forth for determining admissibility of expert evidence at the class certification stage, but it seemingly has gone further to explicitly state that the district court is required to determine the weight of conflicting expert evidence in a “Daubert-like critique” when conflicting expert testimony is offered to challenge the methodology and qualifications of a proffered expert. See Sher v. Raytheon Co., No. 09-15798 (11th Cir. 2011). The Eleventh Circuit acknowledged that the question before it – determination of the weight of expert evidence - was not the same as that before the Seventh Circuit in American Honda – determination of the admissibility of expert evidence. Id.

All-in-all, it seems that in the face of a direct challenge to the scientific reliability of expert evidence proferred in support of class certification, each of these Circuits will require a determination to be made at that point, regardless of whether the determination is coined a full or tailored Daubert review. The Supreme Court’s dictum in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) indicates that the Circuit Courts are on the right track in applying Daubert at the class certification stage, although the extent of the Daubert review required is not clear. The Supreme Court simply stated “[t]he District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings. 222 F.R.D., at 191. We doubt that is so….” Id. at 2553 – 54.