Presenting a live 90-minute webinar with interactive Q&A Leveraging Daubert Motions in Class Certification: Using or Challenging Expert Testimony Amid Divergent Court Standards THURSDAY, FEBRUARY 16, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Tate J. Kunkle, Esq., Marc J. Bern & Partners , New York Jennifer Quinn-Barabanov, Partner, Steptoe & Johnson , Washington, D.C. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
Tips for Optimal Quality FOR LIVE EVENT ONLY Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory, you may listen via the phone: dial 1-866-869-6667 and enter your PIN when prompted. Otherwise, please send us a chat or e-mail sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.
Continuing Education Credits FOR LIVE EVENT ONLY In order for us to process your continuing education credit, you must confirm your participation in this webinar by completing and submitting the Attendance Affirmation/Evaluation after the webinar. A link to the Attendance Affirmation/Evaluation will be in the thank you email that you will receive immediately following the program. For additional information about continuing education, call us at 1-800-926-7926 ext. 35.
Program Materials FOR LIVE EVENT ONLY If you have not printed the conference materials for this program, please complete the following steps: Click on the ^ symbol next to “Conference Materials” in the middle of the left - • hand column on your screen. • Click on the tab labeled “Handouts” that appears, and there you will see a PDF of the slides for today's program. • Double click on the PDF and a separate page will open. Print the slides by clicking on the printer icon. •
D AUBERT M OTIONS IN C LASS C ERTIFICATION : P LAINTIFF ’ S P ERSPECTIVE Tate J. Kunkle, Esq. tkunkle@bernllp.com ONE GRAND CENTRAL PLACE • 60 E. 42 ND ST ., STE 950 • NEW YORK, NY 10165 • TEL: (212) 702- 5000 • FAX: (212) 818 - 0164 • TOLL FREE: 800 -LAW-5432 NEW YORK, NY • CONSHOHOCKEN, PA • WILMINGTON, DE • ENGLEWOOD, NJ WWW.BERNLLP .COM Presented for Strafford Publications CLE Webinar 5
T HE D AUBERT A NALYSIS FRE 702: The proponent of the expert evidence must show: The witness is QUALIFIED 1) The testimony is RELIABLE 2) -based on sufficient facts or data -is the product of reliable principles and methods -the expert has reliably applied the principles and methods to the facts of the case The testimony will assist the trier of fact 3) 6
T HE D AUBERT A NALYSIS Courts have a gatekeeping obligation with regard to expert testimony: “The objective of [the Daubert] requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field” Kumho Tire Co. v. Carmichael , 526 U.S. 137 (1999). 7
FRCP 23: C LASS A CTION R EQUIREMENTS The Plaintiff must demonstrate: Numerosity : the class is so numerous, joinder of all members is impractical Commonality : there are questions of law or fact common to the class Typicality : the claims or defenses of the representative parties are typical of the claims or defenses of the class Adequacy : the representative parties will fairly and adequately protect the interests of the class Superiority : class action is superior to other methods of adjudication Predominance: there are common questions of law or fact that predominate over any individual class member’s questions. 8
FRCP 23: C LASS A CTION R EQUIREMENTS The party seeking class certification must affirmatively demonstrate his compliance with Rule 23. “[C] ertification is proper only if ‘the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied’” Wal-Mart Stores, Inc. v. Dukes , 564 U.S. 338 (2011). “Frequently that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff's underlying claim. That cannot be helped.” Id . To satisfy this burden: parties often rely on expert evidence/testimony. 9
U SE OF EXPERTS AT THE CLASS CERTIFICATION S TAGE In environmental class actions, experts such as hydrologists, surveyors and remediation experts would be used to show: What chemicals or breakdown products are released; What is the fate and transport of the chemicals; Thresholds and concentration levels; Dispersion and modeling. -These goes to commonality, typicality, predominance. 10
U SE OF EXPERTS AT THE CLASS CERTIFICATION S TAGE establishing a “single, indivisible remedy would provide relief to each class member” under Rule 23(b)(2); Demonstrating defective design, warranty, etc. in product liability cases. Proving false and misleading labeling in consumer products litigation. 11
T HE P URPOSE OF D AUBERT Shield the fact finder from flawed evidence in a federal trial 12
Why Daubert is Unnecessary and Unfair at Class Certification Stage? Class certification hearings are not trials Class certification hearings are heard before judges, not juries -Judges do not need Daubert protection Class certification hearings are preliminary proceedings before trial Discovery is often very limited at the class certification stage 13
T HE S UPREME C OURT ’ S D ICTUM ON THE A PPLICATION OF D AUBERT AT THE C LASS C ERTIFICATION S TAGE Wal-Mart v. Dukes: employment discrimination class action suit Indirectly addressed the issue of whether Daubert should apply at the class certification stage: “ The District Court concluded that Daubert did not apply to expert testimony at the class certification stage of class-action proceedings. We doubt that this is so . ” (emphasis added). Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011). 14
A MERICAN H ONDA V . A LLEN • Plaintiffs alleged defective motorcycle design. • “To demonstrate the predominance of common issues, they relied heavily on a report prepared by Mark Ezra, a motorcycle engineering expert.” • Plaintiffs’ expert’s report opined on what constituted normal “wobble” decay. • Defendants argued the report was unreliable: • Not supported by empirical testing; • Not developed through a recognized standard-setting procedure; • Not generally accepted; • Not the product of independent research, etc. Am. Honda Motor Co. v. Allen, 600 F.3d 813 (7th Cir. 2010) 15
A MERICAN H ONDA V . A LLEN 7 th Circuit: Conduct a full Daubert analysis when expert testimony is critical to class certification. “ We hold that when an expert's report or testimony is critical to class certification, … a district court must conclusively rule on any challenge to the expert's qualifications or submissions prior to ruling on a class certification motion. That is, the district court must perform a full Daubert analysis before certifying the class if the situation warrants. Am. Honda Motor Co. v. Allen, 600 F .3d 813, 815 – 16 (7th Cir. 2010) 16
A MERICAN H ONDA V . A LLEN 7 th Circuit: American Honda v. Allen: Holding: Under Daubert , plaintiffs’ expert report should have been excluded; Predominance cannot be established; Certification order vacated. 17
I N RE Z URN P EX 8 th Circuit: In re Zurn Pex (2011): Defective plumbing system claim At Issue : Expert testimony regarding the product reliability of brass fittings (warrantee data, failure rates, lifetime performance) In re Zurn Pex, 644 F. 3d 604 (8 th Cir. 2011). 18
I N RE Z URN P EX 8 th Circuit: Conduct a “Focused” Daubert Inquiry: “an exhaustive and conclusive Daubert inquiry before the completion of merits discovery cannot be reconciled with the inherently preliminary nature of pretrial evidentiary and class certification rulings.” In re Zurn Pex, 644 F. 3d 604 (8 th Cir. 2011). 19
I N RE Z URN P EX “Expert disputes ‘concerning the factual setting of the case’ should be resolved at the class certification stage only to the extent “necessary to determine the nature of the evidence that would be sufficient, if the plaintiff's general allegations were true, to make out a prima facie case for the class.” Blades v. Monsanto Co., 400 F.3d 562, 567 (8th Cir.2005). We have never required a district court to decide conclusively at the class certification stage what evidence will ultimately be admissible at trial.” “In this case, the district court followed Blades by applying what it termed a ‘tailored’ Daubert analysis.” In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, 611-612 (8th Cir. 2011) 20
Recommend
More recommend
