Over the past decade, the Supreme Court has engaged in an internal game of tug-of-war over the proper scope of a district court’s scrutiny during class certification proceedings. The contest kicked off in 2011 with Wal-Mart Stores, Inc. v. Dukes, in which the Court required inquiry into the merits of a putative class’s underlying claims to the extent necessary to determine satisfaction of Rule 23 requirements.
Two years later, the match flipped when the Court, in Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, limited the proper scope of precertification scrutiny in securities fraud class actions.
This apparent retreat from Wal-Mart, however, was short-lived. Just a month later, in Comcast Corp. v. Behrend, the Court doubled down on its Wal-Mart holding, requiring district courts to entertain arguments against the propriety of class certification even when doing so would touch on the merits of class claims.
Finally, in 2016, the tide shifted once more, with the Court lowering the bar for the kind of evidence that can be sufficiently probative to support class certification.
Thus far, the Court’s key decisions in this class certification skirmish have pertained to a district court’s fact-finding role in determining whether Rule 23 requirements have been satisfied.
The battle may soon shift, however, into new territory: judicial gatekeeping of expert testimony intended to support or oppose certification. As reliance on expert opinions during class certification proceedings has increased,
a circuit split has developed surrounding whether expert testimony at this stage of litigation should be subject to the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., which requires judges to screen out unreliable expert testimony at trial.
The two most established sides of the split apply differing levels of Daubert scrutiny prior to a district court’s consideration of expert testimony for the class certification inquiry. On one side, four circuits require that expert testimony pass muster under the full Daubert scrutiny typically applied at trial.
On the other, the Eighth Circuit employs a “tailored” Daubert analysis, which limits the admissibility evaluation to the reliability of the evidence for the purpose of class certification.
Meanwhile, in what this Note proposes comprises an entirely distinct third side of the split, the Ninth Circuit recently held that inadmissibility under Daubert, while relevant for assessing the probative value of expert testimony for the certification inquiry, should not bar evidence from consideration.
While the Supreme Court has danced around the split on two occasions, the Daubert issue remains unresolved.
Significant issues arise from each of the two predominant approaches. The full Daubert approach diminishes the efficiency of the precertification discovery process and disproportionately harms plaintiffs.
The tailored Daubert approach, meanwhile, is rife with procedural ambiguity, which creates doubts as to its workability and efficiency.
Perhaps most significantly, however, each side employs a version of Daubert wherein the results of the analysis determine whether or not a judge may consider the evidence at all in their certification inquiry. This imposition of an exclusionary rule improperly subjects the class certification proceeding to admissibility standards unsuitable for a preliminary stage of litigation and unduly limits judicial discretion. Furthermore, applying an exclusionary rule here fundamentally misconstrues the Supreme Court’s directive that district courts should conduct a rigorous analysis at the certification stage as a gatekeeping standard rather than as a fact-finding standard.
This Note analyzes the problems arising from the use of exclusionary standards to bar expert testimony from judicial consideration during class certification proceedings. Part I provides an overview of class certification, the Daubert standard, and the circuit split. Part II considers the problems posed by the full Daubert approach and the tailored Daubert approach and further considers the impropriety of engaging in either exclusionary analysis. Finally, Part III proposes that, in engaging in a rigorous analysis of expert testimony at the class certification stage, courts should adopt the recent guidance of the Ninth Circuit and consider the factors of reliability and relevance espoused by Daubert without adopting the exclusionary consequences linked to the standard’s application to trial evidence.