Presenting a live 90-minute webinar with interactive Q&A Toxic Tort Class Actions: Navigating Removal, Certification, Daubert Challenges and More Pursuing or Defending Class Claims Over Chemical Injuries Amid Evolving Court Standards THURSDAY, SEPTEMBER 11, 2014 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Marc J. Bern, Senior Partner, Napoli Bern Ripka Shkolnik LLP , 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 .
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Toxic Tort Class Certification Post- Dukes Marc J. Bern, Esq. Presented for Strafford Webinars September 11, 2014 5
Plaintiffs’ Guide To The Certification Of Toxic Tort Class Actions Today’s Roadmap FRCP Rule 23 I. II. Wal-Mart Stores, Inc. v. Dukes et al. III. Daubert standard as it applies to the requirements of Rule 23 a) Supreme Court precedent b) Circuit Split IV. State courts’ reactions to Dukes V. Class certification strategies for plaintiffs post- Dukes 6
Plaintiffs’ Guide To The Certification Of Toxic Tort Class Actions FRCP Rule 23: Class Actions a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if all of the following conditions are met: 1) Numerosity – the class is so numerous that joinder of all members is impracticable; 2) Commonality – there are questions of law or fact common to the class; 3) Typicality – the claims or defenses of the representative parties are typical of the claims or defenses of the class; and 4) Adequacy – the representative parties will fairly and adequately protect the interests of the class. 7
Plaintiffs’ Guide To The Certification Of Toxic Tort Class Actions FRCP Rule 23 b) Types of Class Actions : A class action may be maintained if Rule 23(a) is satisfied and if: 1) separate actions would create a risk of: A. inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or B. adjudication with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests; 8
Plaintiffs’ Guide To The Certification Of Toxic Tort Class Actions FRCP Rule 23 2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; 9 9
Plaintiffs’ Guide To The Certification Of Toxic Tort Class Actions FRCP Rule 23 3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: A. the class members’ interests in individually controlling the prosecution or defense of separate actions; B. the extent and nature of any litigation concerning the controversy already begun by or against class members; C. the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and D. the likely difficulties in managing a class action. 10 10
Plaintiffs’ Guide To The Certification Of Toxic Tort Class Actions Wal-Mart Stores, Inc. v. Dukes et al. , 131 S.Ct. 2541 (2011) • In 2001, plaintiffs representing current and former female employees of Wal-Mart Stores, Inc. filed suit pursuant to the Civil Rights Act of 1964 alleging that Wal-Mart maintained a corporate policy that discriminates against women with regard to pay and promotions. • Plaintiffs’ attorneys sought to certify a class of 1.5 million current and former Wal-Mart workers, which at the time would have been the largest class ever certified. • District Court ruled in favor of class certification under FRCP 23(b)(2). • The Ninth Circuit affirmed. 11
Plaintiffs’ Guide To The Certification Of Toxic Tort Class Actions Wal-Mart Stores, Inc. v. Dukes et al. , 131 S.Ct. 2541 (2011) • The Supreme Court found that there was no “common answer” to the various plaintiffs’ various issues. o Plaintiffs had not demonstrated a general corporate policy of discrimination. o Key facts such as the positions of the Plaintiffs, their supervisors and tenure varied from plaintiff to plaintiff. • The Court found that the millions of decisions alleged to be discriminatory were made independently of one another. • The Court also held that claims for monetary relief not incidental to injunctive or declaratory relief cannot be certified under Rule 23(b)(2). 12 12 12
Plaintiffs’ Guide To The Certification Of Toxic Tort Class Actions Wal-Mart Stores, Inc. v. Dukes et al . , 131 S.Ct. 2541 (2011) • Certiorari was neither sought nor granted on the issue of whether the Daubert standard applies to expert testimony offered in support of class certification. • However, the Court stated in dicta in its majority opinion: • 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.... 13 13
Plaintiffs’ Guide To The Certification Of Toxic Tort Class Actions Daubert Standard • Daubert et al. v. Merrell Dow Pharmaceuticals, Inc. addressed the role of the trial court in assessing the admissibility of expert testimony offered at trial. 509 U.S. 579, 592 (1993). • The Supreme Court charged trial courts with the function of gatekeeper , keeping junk science out of the courtroom. See Kumho Tire Co. Ltd. v. Carmichael , 526 U.S. 137, 137, 159 (1999). 14 14 14
Plaintiffs’ Guide To The Certification Of Toxic Tort Class Actions Post- Dukes Circuit Split Daubert -light: In re Zurn Pex Plumbing Prods. Liab. Litig. 644 F.3d 604 (8th Cir. 2011) • After Dukes , without clear direction from the Supreme Court, courts continued to take different approaches to the application of Daubert at the class certification stage. • The Eighth Circuit, for example, rejected the Defendant’s argument for a “full and conclusive” Daubert review in In re Zurn . • Instead, the Court affirmed the District Court’s “focused” Daubert review that examined the reliability of the expert evidence “in light of the existing state of the evidence and with Rule 23 ’s requirements in mind . ” In re Zurn, 644 F.3d at 613. 15 15 15 15
Plaintiffs’ Guide To The Certification Of Toxic Tort Class Actions Post- Dukes Circuit Split – 8th Circuit Daubert -light: In re Zurn Pex Plumbing Prods. Liab. Litig. , 644 F.3d 604 (8th Cir. 2011) • The Court noted that “the main purpose of Daubert exclusion is to protect juries from being swayed by dubious scientific testimony, an interest not implicated at the class certification stage where the judge is the decision maker. ” Id. at 613. • The Court’s decision was impacted by: • the preliminary nature of the motion, and • the fact that the Defendant had sought bifurcated discovery, which lead to a limited record at class certification. 16 16 16 16 16
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