Part of our goal here at the Monitor is to bring to the attention of our readers articles that may be relevant to product liability issues even if the article is not strictly about a product. Attached is an article written by our colleagues in Weil’s employment group addressing a recent decision from the Eighth Circuit in In re Zurn Pex Plumbing Products, 644 F.3d 604 (8th Cir. 2011), concerning the application of Daubert in a putative class action involving pipe fittings. As our readers will know, expert evidence in the class certification context is an area we have covered on several occasions. See e.g., here and here.
In the attached article, our colleagues discuss the impact of Justice Scalia’s recent opinion in Wal-Mart v. Dukes, that the Supreme Court “doubted” Daubert was inapplicable to a court’s consideration of a class certification motion. This comment has added fuel to the debate over whether courts should consider only admissible expert testimony in deciding a class certification motion. Although most courts now agree that a Daubert inquiry is required if necessary to resolve class certification issues, a divided panel in Zurn recently held that such a Daubert inquiry does not need to be conclusive, and that a court could consider even inadmissible expert opinions at the class certification stage of a case.
Given the profound impact expert evidence can have on whether a class is certified, how courts handle the admissibility and use of such evidence in the class context is undeniably critical and can, and often does, make the difference between multi-million (or billion) dollar settlements and cases that go away or get resolved individually. This is an area that litigants ignore at their peril and one that must be followed closely.