Category Archives Experts

As we discussed back in 2013, the United States Supreme Court's decision in Comcast left no doubt that any damages model offered up by the proponent of class certification must “be consistent with its liability case.”   This ruling put some teeth into the damages element in the class certification context, and strongly implied that the requirements of Daubert or Frye apply at the class certification stage.  This month, the Third Circuit joined the Seventh, Eighth, and Ninth Circuits have all agreed that the Daubert admissibility standard must be taken into account when assessing admissibility of expert testimony at the class certification stage. Now, of course, this is only useful if one’s jurisdiction actually sets some parameters on the admissibility of expert testimony.  Missouri courts, however, follow Mo. Rev. Stat. 490.065, which is somewhat general in its standards, and does not follow either Daubert or Frye in civil matters, relying instead…

In another closely-watched case, the Supreme Court issued an opinion in Comcast v. Behrend, and reversed certification of a Rule 23(b)(3) antitrust class based on the lower courts' refusal to scrutinize the plaintiffs’ expert proposed damage model because doing so would require an inquiry into the merits.  In a 5-4 decision that split largely among ideological lines, the Court re-emphasized its earlier decision in Wal-Mart Stores, Inc. v. Dukes that courts must conduct a "rigorous analysis" of plaintiffs' damages theories even if that analysis involves an inquiry into overlapping merits issues.  More importantly, the decision potentially undermines the long-standing rule that individualized determinations of damages are not an obstacle to class certification. In Comcast, the Supreme Court reversed a Third Circuit decision upholding class certification in an antitrust action brought on behalf of more than 2 million current and former Comcast cable-television subscribers, claiming the cable company used an anti-competitive “clustering strategy” that drove…

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