Expert Testimony on Class Certification - Joseph Hage Aaronson

Commercial Litigation and Arbitration

Commercial Litigation and Arbitration

Expert Testimony on Class Certification

We have previously noted the apparently differing standards used in applying Daubert at the class certification stage. See our post of February 11, 2007, contrasting opinions of the Second and Ninth Circuits. The question in In re Katrina Canal Breaches Consol. Litig., 2007 U.S. Dist. LEXIS 82887 (E.D. La. Nov. 1, 2007), was whether expert testimony at a class certification hearing ‛meet the standard of a full Daubert challenge — that is one equal to a Daubert challenge brought on at the time of hearing on the merits.“ After a lengthy review of the authorities, District Judge Stanwood R. Duval, Jr., concluded that ‛its Rule 702 review of the expert report of Dr. Kilpatrick will be vigorous but limited to the opinion's reliability and relevance to the requirements of class certification under Rule 23.“ He added that:

Clearly, comprehensive expert reports as will be required on the merits are not feasible at the Rule 23 stage. If the class is certified a detailed report will be necessary and required at the trial on the merits. The court's inquiry here is to determine if the expert testimony has sufficient reliability to be presented at the class certification hearing. Is the approach used by the experts sufficiently trust-worthy to assist the Court in determining the requirements of commonality with respect to damages? In essence, the Court must determine if the expert's testimony may reliably establish that a class action should or not be certified.

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