The Supreme Court’s Dukes Decision and Expert Evidence

By now everyone has read about the Supreme Court’s decision yesterday in Wal-Mart Stores, Inc. V. Dukes, et al, No. 10-277, and we and others will no doubt write much about the decision.  One quick note about the decision is its impact on expert evidence at the class certification stage.  For followers of the Product Liability Monitor, you will know that is a subject we have written about in the past  (here and here and here) and one we believe is of critical importance given the impact that certifying a class has on a litigation. 

Although the Dukes decision did not decide specifically whether a full Daubert analysis of a challenged expert is required prior  to certifying a class, the Court’s statements regarding a rigorous analysis of the requirements for class cert, as well as its comments regarding Daubert, strongly suggest that the Daubert analysis is one that must be done.  With respect to the merits, the Court held that “[f]requently that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff’s underlying claim.  That cannot be helped.”  Decision at 10.  It is therefore clear that far from being off-limits, a merits analysis must be done when the merits overlap with one of the class-certification requirements.  In Dukes, that requirement was commonality.

Similarly, it logically follows, that if one of the class requirements depends on expert testimony, the rigorous analysis must apply to the expert as well.  And, rigorous analysis of an expert means ensuring that the expert’s testimony meets the requirements set out in Rule 702 of the Fed. R. Evid and in Daubert and its progeny.  Indeed, the following statement by the Court on this topic, while dictum, is telling:

“The District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings.  222 F.R.D. at 191.  We doubt that is so,…”  Decision at 14.  The Court went on to completely dismiss and reject the testimony of plaintiffs’ expert in Dukes upon which plaintiffs had based their efforts to prove commonality.

No doubt expert challenges will likely increase following this decision, which will have a significant impact on class action litigation.  Stay tuned.