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ARTICLE · 21 AUGUST 2018

The Ninth Circuit's Inadvertent Case For Imposing Daubert At Class Certification

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Defense challenges to plaintiffs' expert witnesses under Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993), are an important tool for defeating class certification,

United StatesLitigation, Mediation & Arbitration
Neal Marder
Neal Marder
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Defense challenges to plaintiffs' expert witnesses under Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993), are an important tool for defeating class certification, but some courts are reluctant to perform a full Daubert analysis at the class certification stage. See, e.g., In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, 612-13 (8th Cir. 2011) (adopting a more lenient ''focused Daubert'' inquiry at the class certification stage because ''a court's inquiry on a motion for class certification is tentative, preliminary, and limited'') (internal quotation marks omitted); Beltran v. InterExchange Inc., No. 1:14-cv-03074, 2018 BL 108181 (D. Colo. March 27, 2018) (same); In re Scotts EZ Seed Litig., 304 F.R.D. 397, 412 n.8 (S.D.N.Y. 2015) (analyzing ''whether each of [the expert's] proposed methodologies satisfy Comcast'' rather than conducting a full Daubert analysis).

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