Class action litigation

When the Supreme Court heard arguments in Comcast Corp. v. Behrend last week, there was a great deal of talk about the Daubert test for admissibility. Because the Court’s ruling could have enormous impact on how expert witnesses are evaluated for class action litigation, it is worth reviewing what really Daubert requires, especially as it relates to the landmark Wal-Mart Stores v. Dukes case from last year.

It issue involving the Comcast Corp. v. Behrend case is whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.  Assessing evidence at the district court level has become a recent trend in litigation. The Wal-Mart ruling allowed courts to review evidence of merits when it overlaps with a requirement for class certification.

The question left unanswered by Wal-Mart is whether low level courts must determine if expert witness testimony passes the Daubert test before a class can be certified.  Daubert v. Merrell Dow Pharmaceuticals in 1993 established new criteria for the admissibility of expert testimony for the first time since the 1920’s. Daubert required expert testimony to pass Federal Rule of Evidence 702, which states:  “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (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.” To be considered reliable and valid, Daubert requires evidence to be have undergone testing, peer review, an evaluation of error rates, and to be generally accepted within the scientific community.

In the case of Wal-Mart, the Court ruled that the defendants lacked sufficient evidence to establish questions of law or fact. They failed to meet class certification requirements under Federal Law so the evidence question didn’t matter. If a plaintiff must convince a district court judge that expert testimony passes Daubert before it can be certified for class action, it could significantly decrease the pressure for out of court settlements and frontload the research on evidence from expert witnesses.

University of San Francisco School of Law professor Joshua P. Davis put Comcast into perspective this way: “The Supreme Court has made class certification progressively more difficult and expensive.  Raising the bar for expert testimony at the certification stage would increase litigation costs for plaintiffs and defendants.”