Michael J. Zbiegien, Jr. | Taft Law
In 1993, the U.S. Supreme Court established the standard for determining the admissibility of expert testimony in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579. That decision immediately gave rise to a pressing question: How is Daubert pronounced? With a French pronunciation, i.e. “dough bear,” or a more American pronunciation, i.e., “dow (rhymes with cow) burt” or “daw burt”? (Garner’s Dictionary of Legal Usage says the last pronunciation is correct.)
Recently, courts have wrestled with another question: To what extent does the Daubert framework apply to expert testimony offered to support motions for class certification? Last month, the Sixth Circuit weighed in and joined the side of those who hold that district courts must apply a Daubert analysis when challenged expert testimony is relevant to class certification in In re Nissan N. Am., Inc. Litig., No. 23-5950 (6th Cir. Nov. 22, 2024).
In Daubert, the Supreme Court held that Federal Rule of Evidence 702 governs the admissibility of expert testimony and that for an expert’s testimony to be admissible, the court must find (1) the expert to be qualified, (2) the testimony to be relevant, and (3) the testimony to be reliable. 509 U.S. at 589. The Third, Fifth, Seventh, and Eleventh Circuits have held that these same standards apply when analyzing the admissibility of challenged expert testimony that is relevant to class certification. The Eighth and Ninth Circuits, on the other hand, have applied Daubert in a more relaxed manner. The Sixth Circuit cites In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604 (8th Cir. 2011) (using a subset of factors to conduct a “focused Daubert analysis”) and Sali v. Corona Reg’l Med. Ctr., 909 F.3d 996 (9th Cir. 2018) (using Daubert to determine the weight of the expert evidence, not admissibility).
In Nissan, the Sixth Circuit joined the majority and held that “[i]f the challenged expert testimony is material to a class certification motion, the district court must demonstrate the expert’s credibility under Daubert.” The court noted that the Supreme Court’s class-certification jurisprudence requires plaintiffs to “‘satisfy through evidentiary proof’ that they ‘in fact’ meet the elements in Civil Rule 23.” Nissan (quoting Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)). The court then reasoned that “[i]f expert testimony is insufficiently reliable to satisfy Daubert, it cannot prove that the Rule 23(a) requirements have been met in fact through acceptable evidentiary proof.” Nissan (internal quotations omitted).
TAKEAWAY: The Nissan case sets the standard for analyzing challenged expert testimony at the class-certification stage, but questions about the use of expert testimony to support a motion for class certification remain to be resolved.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.