George G. Gordon and Irene Ayzenberg-Lyman · October 2014
82 GEO. WASH. L. REV. ARGUENDO 132 (2014)
Courts have substantially heightened the standard of proof for class certification motions over the last several years. In 2011, the Supreme Court in Wal-Mart Stores, Inc. v. Dukes reaffirmed that Rule 23 requires a “rigorous analysis.” That analysis often requires the resolution of conflicting expert opinions. Accordingly, an increasing number of courts have been applying Daubert v. Merrell Dow Pharmaceuticals, Inc. to test expert opinions at the class certification stage. The Supreme Court in Dukes did not address directly the role of Daubert at class certification, but it suggested that at least some form of Daubert analysis is proper. The Supreme Court’s more recent decision in Comcast Corp. v. Behrend reinforced that view. Lower courts, however, continue to differ regarding how to apply the principles of Daubert at the class certification stage. Although most courts recognize that there is a role for Daubert analysis in assessing expert testimony regarding class certification, they differ regarding the nature and depth of that analysis.
This article argues that, consistent with Supreme Court precedent, district courts should determine whether expert testimony is admissible under Daubert prior to giving that testimony any weight in the class certification analysis. The Daubert analysis may have to be tailored in some cases where discovery is ongoing and the relevant record is incomplete. Some form of Daubert analysis is required, however, even when the defendants have not formally challenged the expert’s opinion under Daubert. Such an outcome would be consistent with the rigorous analysis required at the class certification stage, and would promote predictability and uniformity.
