So you've read Wal-Mart v. Dukes, right? Then riddle me this, Batman: Does Daubert apply at the class certification stage? Or not?
The Dukes opinion -- with less than optimal sentence structure -- "doubted" that Daubert did not apply at the class certification stage of the proceedings. 131 S. Ct. at 2554. (I guess that means that the majority did not doubt that Daubert DOES apply at the class cert stage, right?)
As has been widely reported, the Eighth Circuit and the Third Circuit have been less than enthusiastic, however, about applying that dictum. In In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011), the Eighth Circuit nonetheless held that an "exhaustive and conclusive Daubert inquiry before the completion of merits discovery" was inappropriate because of the "inherently preliminary nature of pretrial evidentiary and class certification rulings." Similarly, the Third Circuit in Behrend v. Comcast Corp., 655 F.3d 182, 204 n.13 (3d Cir. 2011) suggested that the Dukes dictum merely required "a district court to evaluate whether an expert is presenting a model which could evolve to become admissible evidence," and did not require it "to determine if a model is perfect at the certification stage."
Yesterday Law360 reported that just last week, U.S. District Court Judge Christina Snyder of the Central District of California was faced with the question of what kind of scrutiny to give proposed expert testimony at the class certification stage. Looking at Dukes, Zurn, and Behrend, she concluded that Zurn embodied the proper analysis for expert testimony at the class certification stage. But having done so, she excluded the plaintiff's expert testimony and denied class certification. Bruce v. Harley-Davidson Motor Co., No. CV-09-6588 CAS (RZx), Slip op. (C.D. Cal. Jan. 26, 2012).
In Bruce, plaintiffs sued on behalf of a multistate and a California statewide class under a variety of consumer protection statutes and warranty theories. They alleged that Harley-Davidson's touring motorcycles have an excessively flexible chassis that allows for severe wobbling and instability at speeds above 55 miles per hour. Various third parties had created aftermarket stabilizer kits that fixed the problem for an average price of $400 -- but the installation of these third-party kits allegedly voided Harley-Davidson's warranty.
Plaintiffs put forward an expert who opined that the product defect that was common to the entire class was that the motorcycle did not damp out oscillations to one-half of their original amplitude within two seconds across the motorcycle's operational capacity.
Judge Snyder concluded that the expert's opinion should be evaluated under Zurn's standard. Discovery in the case had been bifurcated, with so-called "class discovery" occurring first, and merits discovery to occur after class certification had been decided. As such, Judge Snyder reasoned, the expert's opinions must be assessed in light of the currently available evidence. If there were gaps in the analysis that could be filled in using merits discovery, the court should not attempt to exclude the testimony at the class certification stage. Bruce, Slip op. at 9.
Despite using this standard -- which is clearly more liberal than an ordinary Daubert standard -- the court held that the plaintiff's expert's opinion must be excluded. The reason was simple: the gaps in his opinion had nothing to do with unavailable merits discovery. Rather, they were the result of him simply not having yet done the work to establish the scientific veracity of his core opinion: "Dr. Limebeer has not adequately explained the scientific basis for his proposed standard, which has not been accepted in the field of motorcycle dynamics." Id. Indeed, the court observed that Harley-Davidson itself used a four-second standard, while the authors that plaintiff's expert cited used a 2.78-second standard. Establishing the reliability of his two-second standard was something that was within the expert's control and did not hinge on the results of any merits discovery. Accordingly, the court saw no reason to hold off on applying the Daubert criteria.
The court rejected plaintiffs' argument that the expert's opinion had been accepted in state court without objection. "[T]his fact does not compel the admission of testimony in federal court," the court observed. Moreover, the court was clearly bothered that the expert's opinion had been formed exclusively for litigation purposes, and had not been published in a peer-reviewed journal. Id. at 10 (quoting Daubert).
Finally, the court held that an independent basis for excluding the expert's testimony was his failure to test for and eliminate other possible causes of instability. Slip op. at 11.
Because the plaintiffs' expert testimony was inadmissible, plaintiffs failed to establish that common questions of fact and law predominated over individual inquiries. Id. at 12 ("plaintiffs have failed to show that they have the ability to use common evidence by which they can demonstrate the defective nature of the Class Vehicles."). As such, no class could be certified.
Surprisingly, the court both granted the motion to exclude the expert's testimony and denied the plaintiffs' motion for class certification without prejudice. Ordinarily, plaintiffs get only one opportunity to move for class certification; they are not afforded multiple bites at the apple. Thus, absence of any explanation for the court's "without prejudice" rulings -- which would seem to allow the plaintiffs to try yet again -- is strange indeed.
Ultimately, however, Bruce is an excellent example of the fact that even where a court uses a "less stringent" (i.e., Zurn) standard for evaluating the admissibility of expert testimony on class certification, expert opinions that fail to establish the basic indicia of scientific reliability should be stricken where that failure cannot be blamed on the unavailability of certain merits discovery. At the class certification stage, experts are still expected to give a fully-justified opinion based on what is available at that time.