November 12, 2012 Articles

Expert Testimony Admissibility after Wal-Mart v. Dukes

Counsel should be mindful of the Supreme Court's comments in Dukes, and be prepared to respond to a full Daubert challenge at the class-certification stage.

By Dennis S. Ellis, Katherine F. Murray, and Nicholas J. Begakis

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the U.S. Supreme Court ushered in a wave of uncertainty regarding the standard for admissibility of expert testimony at the class certification stage. The Court in Dukes provided significant guidance regarding the requirements of Federal Rule of Civil Procedure 23 and, specifically, the need for a district court to conduct a “rigorous analysis” in deciding class certification issues. Quoting General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 161 (1982), the Supreme Court noted that Rule 23 may require analysis of the merits of a claim insofar as the merits support or deny the existence of a class, as certification is proper only if “‘the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.’” Dukes, 131 S. Ct. at 2551. However, the Court did not address whether this “rigorous analysis” requires a district court to apply the traditional expert admissibility standards established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), at the class certification stage. In the wake of Dukes, federal courts vary in their application of Daubert at the class certification stage and disagree about the force with which Daubert applies pre-certification.

The Supreme Court is expected to clarify the evidentiary standard to be applied to expert opinion at the class certification stage. See Behrend v. Comcast Corp., 655 F.3d 182 (3d Cir. 2011), cert. granted, 80 U.S.L.W. 3707 (2012) (No. 11-864). In the interim, this article presents the current state of the law in this regard and advises practitioners that, to the extent they intend to rely on expert opinion at class certification, they should be prepared to respond to a full Daubert challenge, even at this early stage of the case.

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