Daubert at Class Certification

From Rhodes v E.I. DuPont de Nemours & Co., 2008 U.S. Dist. LEXIS 46159 (S.D. W.Va. June 11, 2008):

• “This court finds the Second Circuit's review of the recent development of the law and its reasoning to be helpful in determining this matter. [In re Visa Check/MasterMoney Antitrust Lit., 192 F.R.D. 68 (E.D.N.Y. 2000) ("Visa Check I"), aff'd, 280 F.3d 124, 135 (2d Cir. 2001) ("Visa Check II").] Like the district court in Visa Check I, I agree that "there is a role for a Daubert inquiry at the class certification stage." Visa Check I, 192 F.R.D. at 76. Daubert and Kumho Tire teach us that testing the reliability of expert opinions before consideration of those opinions is an important function for the court. When expert evidence is offered at trial, the trial court must serve as a gatekeeper to "ensure that any and all scientific testimony . . . is not only relevant, but reliable." Kumho Tire Co., v. Carmichael, 526 U.S. 137, 147 (1999) (citing Daubert, 509 U.S. at 589). Here, the court must satisfy itself that the facts, data, principles, and methods undergirding the expert opinions offered in support of class certification are similarly reliable prior to relying on those opinions during class certification. Failure to make this inquiry prior to certification would result in this court's failure to conduct the "rigorous analysis" required by the Supreme Court.”

• [Footnote 10:] Use of the Daubert analysis during class certification is inconsistent. Some federal district courts apply either a full Daubert analysis or a limited Daubert analysis, while other courts have rejected the applicability of Daubert at the class certification stage. See generally Steven Glickstein, Melissa C. Morrow, & Julie K. du Pont, Does Daubert Apply to Class Certification Hearings? , 695 PLI /Lit 423 (2003) (collecting cases that have applied varying Daubert standards during class certification); Joseph T. McLaughlin, Heather L. Dietrick, & Todd M. Beaton, Jr., Expert Testimony and Class Certification: The Outcome Determinative Role of Daubert, SN058 ALI-ABA 507 (2008) (same).”

• “Certification without adequate review of the parties' experts may substantially impair or foreclose the rights of absent class members if later review results in exclusion of the parties' experts. Given the high percentage of class actions which settle as a result of class certification, 11 failure to conduct a Daubert analysis might invite plaintiffs to seek class status for settlement purposes, and essentially amounts to a "delegation of judicial power to the plaintiffs, who can obtain class certification just by hiring a competent expert." West v. Prudential Sec., 282 F.3d 935, 938 (7th Cir. 2002).

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