George G. Gordon
Philadelphia +1 215 994 2382
Courts have substantially heightened the standard of proof for class certification motions over the last several years. In 2011, the Supreme Court in Wal-Mart Stores, Inc. v. Dukes reaffirmed that Rule 23 requires a “rigorous analysis.” That analysis often requires the resolution of conflicting expert opinions. Accordingly, an increasing number of courts have been applying Daubert v. Merrell Dow Pharmaceuticals, Inc. to test expert opinions at the class certification stage. The Supreme Court in Dukes did not address directly the role of Daubert at class certification, but it suggested that at least some form of Daubert analysis is proper. The Supreme Court’s more recent decision in Comcast Corp. v. Behrend reinforced that view. Lower courts, however, continue to differ regarding how to apply the principles of Daubert at the class certification stage. Although most courts recognize that there is a role for Daubert analysis in assessing expert testimony regarding class certification, they differ regarding the nature and depth of that analysis.