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Practice Tip: The Scope of Daubert in Product Liability Class Actions

By Elizabeth A. Latif and James H. Rotondo
February 27, 2013

A court's decision to certify a class often constitutes the end of the litigation because of the increased settlement pressure faced by defendants. Apparently recognizing that trend, federal courts have applied increasingly rigorous standards of proof at the class certification stage. The Supreme Court has granted certiorari in Comcast Corp. v. Behrend 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 class is susceptible to awarding damages on a class-wide basis?”

There, the petitioners are arguing that the plaintiffs' expert's damages model does not have the requisite Daubert “fit” with the plaintiffs' theory of antitrust impact. Nevertheless, the case may answer whether a district court must engage in a full Daubert inquiry before utilizing an expert's testimony at the class certification stage under Federal Rule of Civil Procedure 23. Accordingly, the decision could have far-reaching implications for all class actions.

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