Commercial Litigation and Arbitration

Circuit Split as to Whether Daubert Applies at Class Certification — Supreme Court Has Granted Cert in Case Implicating This Issue and May Resolve It This Term

In re Rail Freight Fuel Surcharge Antitrust Litig., 2012 U.S. Dist. LEXIS 134241 (D.D.C. Sept. 20, 2012):

Defendants correctly identify a circuit split as to whether a district court must address Daubert challenges at the class certification stage. Compare Am. Honda Co. v. Allen, 600 F.3d 813, 816 (7th Cir. 2010) ("[T]he district court must perform a full Daubert analysis before certifying the class if the situation warrants."), with In re Zurn Pex Plumbing Products Liability Litig., 644 F.3d 604, 612-14 (8th Cir. 2011) (concluding that district court need not assess the admissibility of expert testimony at the class certification stage; "full Daubert hearing" not required so long as court conducts "rigorous analysis" of parties' claims regarding expert testimony as it relates to common proof). Furthermore, defendants note that the Supreme Court recently granted a petition for a writ of certiorari that implicates this question.

Footnote 1. The Supreme Court granted a petition for writ of certiorari on the following question: "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." See Comcast Corp. v. Behrend, S.Ct. , 2012 WL 113090, at *1 (June 25, 2012).

Defendants, however, do not clearly identify how resolution of this legal question would affect the Court's decision here, as defendants never raised a Daubert challenge before this Court decided the class certification issue. Nor is it obvious that a full Daubert analysis would have yielded a different result. See, e.g., Rail Freight III, 2012 WL 2870207, at *18 (finding that plaintiffs' expert's use of regression analysis was a generally accepted basis for certifying a class); id. at *66-67 (observing that multiple regression analysis is particularly useful in antitrust actions); id. at *33, n. 11 (noting credentials of plaintiffs' expert).

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