February 20, 2013 Articles

Navigating the Daubert Landscape

By Marjorie A. Farris and Kristen K. Orr

It might be a bit of an understatement to say that expert testimony is often critical to the success of a plaintiff's product-liability claim. Accordingly, most practitioners are intimately familiar with the requirements of Daubert and its progeny in order to get their expert before a jury. Yet, even at the class-certification stage, expert testimony is often key to satisfying the Rule 23 requirements to show the product class action can proceed. This article explores how lawyers must navigate the Daubert landscape when those rules are applied to the certification of product- liability class actions. 

Certification of Product-Liability Class Actions

Class actions asserting product-liability claims are usually filed under Federal Rule of Civil Procedure (FRCP) 23(b)(3), which requires plaintiffs to show that questions of law or fact common to the members of the class predominate over any questions affecting only individual members. In addition to that threshold showing, plaintiffs must also satisfy the four prerequisites of FRCP 23(a): (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. 

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