Category Archives Trial-by-Formula

Last week, the Supreme Court issued its opinion in Tyson Foods v. Bouaphakeo, No. 14-1146 (March 22, 2016), a closely watched case out of the 8th Circuit that presented two meaty issues relevant to class action practitioners: 1) whether a plaintiff can use statistical sampling to establish class-wide liability, aka "Trial-by-Formula"; and 2) whether a certified class can include uninjured claimants.  In its opinion affirming both class certification and the trial verdict, the Court did not make any broad pronouncements on the use of statistical evidence in classwide proceedings, but instead took a more measured approach on when such evidence may be used.  Our thoughts on the opinion are below. On the use of statistical evidence, Justice Kennedy, writing for the majority observed that "[a] categorical exclusion of that sort, however, would make little sense. A representative or statistical sample, like all evidence, is a means to establish or defend against liability."  Instead, whether and when…