DOUBT NO MORE FINDING A HOME FOR DAUBERT IN CLASS CERTIFICATION

• Published in: Columbia law review Vol. 121; no. 4; pp. 1289 - 1326
• Main Author: Levitin, Tzvi
• Format: Journal Article
• Language: English
• Published: New York Columbia Law Review Association, Inc 01.05.2021; Columbia Law Review
• Subjects: Admissibility; Certification; Civil procedure; Class action lawsuits; CLASS ACTIONS; Class actions (Civil procedure); District courts; Efficiency; Evidence; Evidence (Law); Evidence, Expert; EXPERT EVIDENCE; Fairness; Federal court decisions; Federal Rules of Civil Procedure; Federal Rules of Evidence; Gatekeeping; Judicial discretion; JUDICIAL PROCESS; JURISPRUDENCE; Laws, regulations and rules; Litigation; Pharmaceuticals; Prescription drugs; Rules; Scrutiny; Social classes; Supreme courts; Testimony; Trials; U.S. states; UNITED STATES
• ISSN: 0010-1958; 1945-2268

The Supreme Court has made clear that a district court may grant class action certification only after conducting a rigorous analysis to ensure that the requirements of Rule 23 of the Federal Rules of Civil Procedure have been met. Less clear, however, is what exactly a rigorous analysis entails. As precertification scrutiny has become more robust, reliance on expert testimony has become nearly indispensable for obtaining class certification. This Note addresses the circuit split surrounding whether expert testimony submitted during the class certification process should be subject to the gatekeeping standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. This Note argues that the two main approaches, each calling for some form of exclusionary Daubert analysis, give rise to concerns relating to efficiency and fairness, thus hindering the purposes of the class action mechanism. Moreover, the two approaches subject expert testimony to admissibility standards unsuitable for a preliminary stage of litigation and rely on a critical misconstruction of the Supreme Court’s rigorous analysis requirement as a gatekeeping standard rather than a fact-finding standard. This Note proposes that courts should instead adopt the approach put forth by the Ninth Circuit and consider the Daubert factors as part of an overall assessment of the probative value, rather than the admissibility, of expert testimony.