Defeating Class Certification With Expert Witnesses

The use of experts by plaintiffs and defendants at the class certification stage has become commonplace. Experts can help evaluate, opine, and often influence, among other things, whether the alleged injury is common (or not) to all putative class members—a mandatory prerequisite under Federal Rule of Civil Procedure 23. Class action lawsuits continue to rise and class certification is often the most significant stage of a potential class action. Therefore understanding how experts play a role at this early stage and how courts will weigh these opinions may ultimately help defeat certification.

The use of experts has increased in the early stages of class actions in the wake of the Supreme Court’s decision, Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011). In Dukes, the Supreme Court charged lower courts to perform a “rigorous analysis” that the prerequisites for class actions set forth in Rule 23 are met. Those four prerequisites are “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a).

The Supreme Court did not define the analysis that should be conducted. However, many lower courts require expert testimony at the certification stage. This is to establish that the alleged injury is common to all members of the putative class. Consequently, damages can be measured on a class wide basis. See Fed. R. Civ. P. 23(a)(1) & (2). The prerequisites of Rule 23 are now more than simply a pleading standard and “[a] party seeking class certification . . . must be prepared to prove” that the requirements are satisfied. Dukes, 131 S. Ct. at 2551.

The ever-increasing use of experts on the plaintiff’s side at the class certification stage opens up the opportunity for the defense to use experts in several different ways. Prior to class certification, it is essential that the defense consider the use of experts. This can be either to help with analyzing plaintiff’s expert’s opinions, draft a report, or to provide testimony. Experts may be necessary for the potential class to meet their burden that their claims satisfy the prerequisites of Rule 23 (or its analogous state rule). They can also be necessary for defendants to avoid class certification.

Using defense experts at the class certification stage may be the difference between subjecting a defendant to exposure of thousands of claims or ending a case before it is certified. Which makes the chances of being pursed substantially decreased.

1. Admissibility of Expert Evidence

Even at the class certification stage, the admissibility of expert evidence must withstand the requirements of the jurisdiction. The Supreme Court and many Federal Circuit Courts have noted that some level of a Daubert analysis be performed at the certification stage. However, courts are split on the exact analysis that should be conducted. See, e.g. Dukes, 131 S. Ct. at 2553-2554 (“The District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings. We doubt that is so.”

The Third, Seventh, and Ninth Circuits appear to require a full Daubert analysis before certifying the class, if the situation warrants such analysis. See In re Blood Reagents Antitrust Litig., 783 F.3d 183 (3d Cir. 2015); Am. Honda Motor Co. v. Allen, 600 F.3d 813 (7th Cir. 2010); Messner v. NorthShore Univ. Health Sys., 669 F.3d 802 (7th Cir. 2012) (reaffirming its holding in Allen); Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011). The Eighth Circuit on the other hand has held that “an exhaustive and conclusive Daubert inquiry” at the class-certification stage is not necessarily appropriate. See In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604 (8th Cir. 2011).

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No matter in what jurisdiction the potential class action is pending, ensuring that the expert’s opinion will be admissible under the applicable standards will likely be crucial. This is especially true as the case law develops. Thus, both the lawyer and expert should understand the standard for admissibility in the jurisdiction in which class certification is being attempted.

Consulting with experts should occur as early as possible. It should especially cover what discovery the expert may need to perform their analysis. The expert should be fully qualified and have a full knowledge of all the documents and other evidence in the record. This is including any reports or testimony prepared by plaintiff’s expert. Ensuring that an expert’s opinions can withstand a Daubert analysis even at this earliest stage will likely prevent the expert’s opinions from being stricken or excluded. The more reliable the defense expert’s opinions, the more likely the chances the court will favorably weight his/her testimony. Investing in a credible expert that can withstand cross-examination is more important than ever at the certification stage, since it is likely that the expert may be the only defense witness testifying at a certification hearing.

2. Using Experts to Understand the Opposing Expert’s Opinions

Defense experts at any stage of litigation can be useful to understand the themes of the opposing party and the opinions of their experts. However, it is especially useful at the certification phase where the opposing party’s expert may be opining on issues which lack a factual basis. As it is likely that little merit based discovery would have taken place at this juncture.

In many cases, plaintiff’s expert will opine that the purported class members—many of who are absent at this point—have suffered the same injury. Plaintiff’s expert may make certain assumptions or speculations to form these opinions. A defense expert may be able to spot this and it can be used as grounds for exclusion on admissibility. Even if class certification is granted, the plaintiff’s expert’s opinions will likely overlap with the merits of the underlying claims. So understanding the opinions early will help throughout the life of the case.

3. Battle of the Experts

Defense experts help lawyers understand the issues in the case and the flaws in the opposing party’s expert’s opinions. They can also help the court understand these issues. Having an expert draft and issue a report that offers contrary opinions may help weaken the certification. This is because it could point out the problems in plaintiff’s attempt to “prove” the Rule 23 prerequisites.

For example, if plaintiff’s expert opines that all members have suffered the same injury. Then a defense expert could issue a report opining that the purported class’ claims would depend on individual proofs specific to each plaintiff’s case. This may help defeat certification. On damages, plaintiff’s expert may develop a formula that would apply to all damages claimed by the members. A defense expert may then issue a report pointing out the flaws in the expert’s formula or the facts the expert did not take into account related to the individual differences between the members.

At this stage, the plaintiff and their experts may not need to prove their entire case. However, it is their burden to prove that they have a reliable basis for their opinions relating to commonality and the other prerequisites of Rule 23. Moreover, as the burden increases for the plaintiff to prove the prerequisites, the chances that a court may discount both side’s expert reports, simply because they are “dueling,” decreases. Even if the expert’s opinions survive Daubert or another admissibility challenge, establishing the weaknesses in the opinions may help persuade a court that certification should be denied.

4. Using Experts to Help Prepare for Cross-Examination

As in any litigation, effective cross-examination can be the key to excluding plaintiff’s expert. Specifically, at the class certification stage, cross-examination of the plaintiff’s expert witness can be effective to establish that the Rule 23 requirements are not met. The expert may not be qualified, the methodology may be flawed, or he/she may not be relying on facts in evidence, but rather only on speculation or his/her ipse dixit. Exposing these flaws at the certification stage may help in the certification being denied. Retaining an expert to help understand the opposing side’s expert’s opinions is helpful, so that an effective cross-examination can be conducted. Especially at the class certification stage where the case may involve technical or specialized facts. Using an expert to identity and expose the flaws in the opposing expert’s opinions, will allow for an effective cross-examination.

5. Investing in Experts

While using experts at the class certification stage is similar to such usage in other stages of litigation, its value can be more significant, especially if it can end the class before it starts. As with using any experts, a thorough analysis on the part of the lawyer and client is needed. This will determine the best strategy and use of expert witnesses. This article touches on some of the practical considerations to determine where experts may be beneficial at the certification stage. However, it is only a starting point. No doubt as the law develops and the use of experts at this early stage becomes even more routine these considerations will become increasingly more important.