Leveraging Daubert Motions in Class Certification: Using or Challenging Expert Testimony Amid Divergent Court Standards

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Leveraging Daubert Motions in Class Certification: Using or Challenging Expert Testimony Amid Divergent Court Standards THURSDAY, FEBRUARY 16, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Tate J. Kunkle, Esq., Marc J. Bern & Partners, 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 ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 DAUBERT MOTIONS IN CLASS CERTIFICATION: PLAINTIFF S PERSPECTIVE Tate J. Kunkle, Esq. tkunkle@bernllp.com ONE GRAND CENTRAL PLACE 60 E. 42 ND ST., STE 950 NEW YORK, NY TEL: (212) FAX: (212) TOLL FREE: 800-LAW-5432 NEW YORK, NY CONSHOHOCKEN, PA WILMINGTON, DE ENGLEWOOD, NJ Presented for Strafford Publications CLE Webinar 5

6 THE DAUBERT ANALYSIS FRE 702: The proponent of the expert evidence must show: 1) The witness is QUALIFIED 2) The testimony is RELIABLE -based on sufficient facts or data -is the product of reliable principles and methods -the expert has reliably applied the principles and methods to the facts of the case 3) The testimony will assist the trier of fact 6

7 THE DAUBERT ANALYSIS Courts have a gatekeeping obligation with regard to expert testimony: The objective of [the Daubert] requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). 7

8 FRCP 23: CLASS ACTION REQUIREMENTS The Plaintiff must demonstrate: Numerosity: the class is so numerous, joinder of all members is impractical Commonality: there are questions of law or fact common to the class Typicality: the claims or defenses of the representative parties are typical of the claims or defenses of the class Adequacy: the representative parties will fairly and adequately protect the interests of the class Superiority: class action is superior to other methods of adjudication Predominance: there are common questions of law or fact that predominate over any individual class member s questions. 8

9 FRCP 23: CLASS ACTION REQUIREMENTS The party seeking class certification must affirmatively demonstrate his compliance with Rule 23. [C]ertification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). Frequently that rigorous analysis will entail some overlap with the merits of the plaintiff's underlying claim. That cannot be helped. Id. To satisfy this burden: parties often rely on expert evidence/testimony. 9

10 USE OF EXPERTS AT THE CLASS CERTIFICATION STAGE In environmental class actions, experts such as hydrologists, surveyors and remediation experts would be used to show: What chemicals or breakdown products are released; What is the fate and transport of the chemicals; Thresholds and concentration levels; Dispersion and modeling. -These goes to commonality, typicality, predominance. 10

11 USE OF EXPERTS AT THE CLASS CERTIFICATION STAGE establishing a single, indivisible remedy would provide relief to each class member under Rule 23(b)(2); Demonstrating defective design, warranty, etc. in product liability cases. Proving false and misleading labeling in consumer products litigation. 11

12 THE PURPOSE OF DAUBERT Shield the fact finder from flawed evidence in a federal trial 12

13 Why Daubert is Unnecessary and Unfair at Class Certification Stage? Class certification hearings are not trials Class certification hearings are heard before judges, not juries -Judges do not need Daubert protection Class certification hearings are preliminary proceedings before trial Discovery is often very limited at the class certification stage 13

14 THE SUPREME COURT S DICTUM ON THE APPLICATION OF DAUBERT AT THE CLASS Wal-Mart v. Dukes: CERTIFICATION STAGE employment discrimination class action suit Indirectly addressed the issue of whether Daubert should apply at the class certification stage: 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. (emphasis added). Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct (2011). 14

15 AMERICAN HONDA V. ALLEN Plaintiffs alleged defective motorcycle design. To demonstrate the predominance of common issues, they relied heavily on a report prepared by Mark Ezra, a motorcycle engineering expert. Plaintiffs expert s report opined on what constituted normal wobble decay. Defendants argued the report was unreliable: Not supported by empirical testing; Not developed through a recognized standard-setting procedure; Not generally accepted; Not the product of independent research, etc. Am. Honda Motor Co. v. Allen, 600 F.3d 813 (7th Cir. 2010) 15

16 AMERICAN HONDA V. ALLEN 7 th Circuit: Conduct a full Daubert analysis when expert testimony is critical to class certification. We hold that when an expert's report or testimony is critical to class certification, a district court must conclusively rule on any challenge to the expert's qualifications or submissions prior to ruling on a class certification motion. That is, the district court must perform a full Daubert analysis before certifying the class if the situation warrants. Am. Honda Motor Co. v. Allen, 600 F.3d 813, (7th Cir. 2010) 16

17 AMERICAN HONDA V. ALLEN 7 th Circuit: American Honda v. Allen: Holding: Under Daubert, plaintiffs expert report should have been excluded; Predominance cannot be established; Certification order vacated. 17

18 IN RE ZURN PEX 8 th Circuit: In re Zurn Pex (2011): Defective plumbing system claim At Issue: Expert testimony regarding the product reliability of brass fittings (warrantee data, failure rates, lifetime performance) In re Zurn Pex, 644 F. 3d 604 (8 th Cir. 2011). 18

19 IN RE ZURN PEX 8 th Circuit: Conduct a Focused Daubert Inquiry: an exhaustive and conclusive Daubert inquiry before the completion of merits discovery cannot be reconciled with the inherently preliminary nature of pretrial evidentiary and class certification rulings. In re Zurn Pex, 644 F. 3d 604 (8 th Cir. 2011). 19

20 IN RE ZURN PEX Expert disputes concerning the factual setting of the case should be resolved at the class certification stage only to the extent necessary to determine the nature of the evidence that would be sufficient, if the plaintiff's general allegations were true, to make out a prima facie case for the class. Blades v. Monsanto Co., 400 F.3d 562, 567 (8th Cir.2005). We have never required a district court to decide conclusively at the class certification stage what evidence will ultimately be admissible at trial. In this case, the district court followed Blades by applying what it termed a tailored Daubert analysis. In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, (8th Cir. 2011) 20

21 IN RE ZURN PEX The record in this case illustrates why that approach was appropriate and why requiring an even more conclusive Daubert inquiry at the class certification stage would have been impractical. As the district court noted []: Dr. Blischke's analysis was circumscribed by the availability of warranty claims data. However, as merits discovery unfolds and more information becomes available, Dr. Blischke's 40 year estimate for the mean time to failure may or may not be admissible. It was after all Zurn which sought bifurcated discovery which resulted in a limited record at the class certification stage, preventing the kind of full and conclusive Daubert inquiry Zurn later requested. (emphasis added) In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, (8th Cir. 2011) 21

22 IN RE ZURN PEX The main purpose of Daubert exclusion is to protect juries from being swayed by dubious scientific testimony. That interest is not implicated at the class certification stage where the judge is the decision maker. The district court's gatekeeping function under Daubert ensures that expert evidence submitted to the jury is sufficiently relevant and reliable, Bonner v. ISP Technologies, Inc., 259 F.3d 924, 929 (8th Cir.2001) (emphasis added), but [t]here is less need for the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself, United States v. Brown, 415 F.3d 1257, 1269 (11th Cir.2005). (emphasis added) In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011) 22

23 IN RE ZURN PEX In light of the record and the district court's predominance analysis, we discern no abuse of discretion in its decision to grant class certification as to the warranty and negligence classes. Merits discovery remains to be undertaken in the district court and as it continues, the bases for the district court's necessarily prospective rulings may change. The rules of civil procedure allow for flexibility if such changes are needed. (emphaisis added). In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, (8th Cir. 2011) 23

24 DEVELOPMENT OF DISCOVERY AND THE ROLE OF DAUBERT Even if a jurisdiction appreciates the In re Zurn approach of a limited Daubert inquiry these jurisdictions may be compelled to conduct a full Daubert analysis at the class certification stage if there has been advanced discovery. The Zurn court was compelled to apply a limited Daubert analysis at least in part because of the bifurcated discovery in that case (separating discovery for purposes of class certification from merit discovery). Where bifurcated discovery is absent, or parties have conducted advanced discovery, defendant friendly courts may be inclined to conduct a full Daubert examination. 24

25 DEVELOPMENT OF DISCOVERY AND THE ROLE OF DAUBERT Unlike the typical case when a motion to certify a class is filed early in the proceedings, this case is at an advanced stage. The parties have completed discovery, exchanged expert reports, and the pretrial conference is imminent. The Court conducts a full Daubert analysis now to avoid a duplicative motion in limine. Stone v. Advance Am., 278 F.R.D. 562, 566 (S.D. Cal. 2011) 25

26 DEVELOPMENT OF DISCOVERY AND THE ROLE OF DAUBERT The Court believes that the approach adopted by the district court and affirmed by the Eighth Circuit in In re Zurn is the appropriate application of Daubert at the class certification stage... As noted above, in affirming the district court's use of this approach, the Eighth Circuit highlighted the preliminary nature of class certification proceedings. In re Zurn, 644 F.3d at 613. The court explained that especially where discovery has been bifurcated into a class phase and a merits phase, an expert's analysis may have to adapt as gaps in the available evidence are filled in by merits discovery. Bruce v. Harley-Davidson Motor Co., No. CV CAS RZX, 2012 WL , at *4 (C.D. Cal. Jan. 23, 2012) 26

27 THE CIRCUIT BREAKDOWN Full Daubert Analysis: 7 th Circuit: American Honda Motor Co. v. Allen, 600 F.3d 813 (7th Cir. 2010). 3 rd Circuit: See In re Blood Reagents Antitrust Litigation, 783 F.3d 183 (3d Cir. 2015) 6 th Circuit: See In re Carpenter, No , 2014 U.S. App. LEXIS (6th Cir. Sept. 29, 2014), 9 th Circuit: See Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011). 11 th Circuit: See Sher v. Raytheon Co., 419 F. App'x 887, 889 (11th Cir. 2011) 27

28 THE CIRCUIT BREAKDOWN Limited Daubert Inquiry: 8 th Circuit: See In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604 (8th Cir. 2011) 2 nd Circuit: See In Re Initial Public Offerings Sec. Litig., 471 F.3d 24 (2d Cir. 2006); In re U.S. Foodservice Inc. Pricing Litigation, 729 F.3d 108 (2d Cir. 2013) 28

29 IS FULL DAUBERT SCRUTINY REALLY THAT BAD? Pros Less worry of decertification Potential for early settlement Focused case prior to filing class actions Ensure meritorious class actions Protect the class members with stronger litigation focus and strategy Cons Early costs could be prohibitive Expert may be hamstrung without full discovery Daubert motions are expensive May be less willing to file a class action Finite number of experts willing to testify 29

30 Strategies for Successful Daubert Challenges at the Class Certification Stage: A Defense Perspective Jennifer Quinn-Barabanov Partner, Steptoe & Johnson LLP. jquinnba@steptoe.com

31 Impact of Different Standards Obviously essential to understand the governing legal standard in the court where you are litigating Practical impact of the difference between more and less rigorous standards: 31

32 Impact of Different Standards Many courts hedge their bets, holding that the expert s testimony would not pass muster even under the less rigorous Zurn standard Fosmire v. Progressive Max Ins. Co., 277 F.R.D. 625, 629 (W.D. Wash. 2011). Cholakyan v. Mercedes-Benz USA, LLC, 281 F.R.D. 534, 543 n. 72 (C.D. Cal. 2012). Many courts acknowledge Zurn, but distinguish it based on the stage of the proceedings Stone v. Advance Am., 278 F.R.D. 562, 566 (S.D. Cal. 2011) ( [T]his case is at an advanced stage... the pretrial conference is imminent. The court conducts a full Daubert analysis now to avoid a duplicative motion in limine. ) Cholakyan, 281 F.R.D. at 543 n

33 Effective Strategies for Challenging Plaintiffs Experts 33

34 Legal Standard FRE 702 Is proffered expert testimony based upon: reliable facts or data reliable principles and methods reliable application of principles and methods to the facts of the case. 34

35 Working with Defense Experts Step # 1 in any effort to mount a Daubert challenge to plaintiffs experts: 35

36 Working with Defense Experts Ask whether a plaintiffs certification expert s analysis satisfies each of the Daubert criteria Identify the flaws in the analysis Focus on mistakes that matter Pointing out obvious mistakes (e.g., incorrect, nonmaterial facts) can be fun, but don t let those detract from main message Goal: To show that variation among class members precludes class treatment. Look for errors that relate to whether there is variation among class members re: Elements of cause of action Proof of causation 36

37 Working with Defense Experts 1. Elements: Do the differences prevent or undermine common proof of plaintiffs claims? Differences in the representations made to class members may matter little, for example, in consumer class actions based on state laws that do not require proof of reliance. E.g., Guido v. L Oreal USA, Inc., Nos. 2:11-cv and 2:11-cv-05465, 2014 WL at *18 (July 24, 2014) (variations in class members reliance on alleged misrepresentations were irrelevant where claim turned on objective materiality of alleged misrepresentations under California law). 37

38 Working with Defense Experts 2.Plaintiffs theory of causation and the scientific information on which it is based: Does it stretch far enough to cover the proposed class or are there gaps suggesting that causation can t be determined on a classwide basis? 38

39 Working with Defense Experts Develop the questions that you want to ask plaintiffs expert at deposition to get the admissions you need to get him/her excluded Explain the flaws plaintiffs expert s analysis in your defense expert reports Prepare your expert to testify about the flaws in plaintiffs expert s analysis If there is a certification hearing with live testimony, the credibility of a defense expert s critique can go a long way to convince a court to exclude plaintiffs expert Your expert can t replicate the same mistakes credibility is key to avoid a duel to a draw 39

40 Recurring Issues in Precertification Daubert Challenges 40

41 Disconnect Between Opinion and Plaintiffs Does plaintiffs expert s opinion overlook/ignore information developed in discovery demonstrating material differences among plaintiffs/putative class members? Cherry picking: Does plaintiffs expert consider only favorable facts and ignore unfavorable ones? Some courts will treat as going to weight; not admissibility Stimeling v. Bd. of Educ. Peoria Pub. Schools Dist., 2010 Dist. LEXIS (C.D. Ill. 2010) (Public school teacher s experts could self-select instances of discrimination; Defendants could cross and call their own experts). 41

42 Disconnect Between Opinion and Plaintiffs Discovery from named plaintiffs Deposition of named plaintiffs Documents from plaintiffs Potential areas of focus: Product purchase (product, timing, location) Chemical/pharmaceutical exposure (e.g., amount, duration)? Product use/misuse patterns? Knowledge/lack of information? Background risk profiles 42

43 Disconnect Between Opinion and Plaintiffs Alleged injury Differences in kind, not just degree? Does class include uninjured? (e.g., never experienced a product defect, exposure below a threshold for risk)? See Kohen v. Pac. Inv. Mgmt. Co., 571 F.3d 672, 677 (7 th Cir. 2009) ( [I[f the [class] definition is so broad that it sweeps within it persons who could not have been injured by the defendant s conduct, it is too broad. ). Affirmative defenses and alternative causes Is the entire class similarly situated vis-à-vis facts? 43

44 Disconnect Between Opinion and Plaintiffs Named plaintiffs are NOT the only sources Other potential sources include: Defendant s records: purchase, warranty and maintenance records or customer complaints; Public records: property appraisal records, public health data, government reports. Public information: Media reports, consumer blogs, chat rooms, reports from consumer ratings organizations Third party information: doctors, pharmacies, dealers, technicians, installers, etc. 44

45 Invalid Assumptions Inconsistent with Facts Plaintiffs incentive to maximize class size can lead their experts to make invalid assumptions about uniformity and consistency of defendant s conduct that are contradicted by the facts. E.g., Coleman v. Union Carbide Corp., No. 2: , 2013 US Dist. LEXIS , at *84 (excluding plaintiffs expert because rather than modeling changes in plant operation over time, he improperly used the far simpler, but inherently unreliable, approach of assuming current day operations existed essentially unchanged historically. ). 45

46 Invalid Assumptions Inconsistent with Facts Defendant s self-knowledge is powerful weapon against such invalid assumptions Potential area of focus: Has the defendant s conduct changed over time? Did the defendant s conduct vary by location? Did the defendant treat proposed class members the same or differently? Did the information provided by the defendant or the mechanism for delivering it vary? Were there differences in product design, components, manufacturing process, etc., among products or over time? Did the marketing and/or distribution process vary among products or over time? 46

47 Causation Opinions: Common Methodological Flaws An allegedly common adverse outcome does not equal common proof of causation. Recent decisions focused on this point, particularly in context of product defect claims. Example: Grodzitsky v. Am. Honda Motor Co., No. 2:12 CV 1142, 2015 WL , at * 6 (C.D. Cal., April 22, 2015). Plaintiffs expert s testimony excluded based on failure to justify implicit assumption that all cars required service of window because of alleged defect, but the data the expert relied upon did not specify the reason service of window was required. 47

48 Causation Opinions: Common Methodological Flaws Failure to rule out alternative causes Has plaintiffs expert considered and ruled out: Other potential sources of the alleged contamination? Other potential causes recognized in the scientific literature for the condition(s) at issue? Other potential sources of the alleged defect through product testing? 48

49 Causation Opinions: Common Methodological Flaws Unsupported extrapolation Has the expert reached broad conclusions based on only a few data points? E.g., Coleman, 2013 US Dist. LEXIS at *92-93 (experts opinion about scope of alleged contamination excluded as based on insufficient sampling data) Has the expert extrapolated beyond what the literature supports for cause/effect? E.g., expert opines that class members are at risk for a wide range of adverse health effects, where the scientific literature finds an association with only one adverse end point (typically at a much higher dose)? 49

50 Causation Opinions: Common Methodological Flaws Unsupported extrapolation Unsupported extrapolation is properly excluded as impermissible ipse dixit of the expert. See Gen. Elec. Co., 522 U.S. at 146 ( A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. ). 50

51 Causation Opinions: Common Methodological Flaws Opinions about hypothetical or composite plaintiffs Plaintiffs expert conflates or cherry-picks facts to offer an opinion about a hypothetical class member, rather than the named plaintiffs 51

52 Causation Opinions: Common Methodological Flaws Opinions about hypothetical or composite plaintiffs -- examples Cherry picking highest data points See e.g., Coleman, at *68-69 (excluding air modeler who used highest recorded exposure levels, which court characterized as a regulatory-based approach... designed to produce a hypothetical and prospective worst case scenario for the purpose of protecting public safety, rather than to estimate the actual exposure allegedly experienced by the proposed class. 52

53 Causation Opinions: Common Methodological Flaws Opinions about hypothetical or composite plaintiffs -- examples Use of averaged data E.g., Gates v. Rohm and Haas Co., 655 F.3d 255, 266 (3d Cir. 2011) ( Plaintiffs cannot substitute evidence of exposure of actual class members with evidence of hypothetical, composite persons... Averages or community-wide estimations would not be probative of any individual s claim because any one class member may have an exposure level well above or below the average. ). 53

54 Causation Opinions: Common Methodological Flaws Surveys Plaintiffs experts often rely upon survey data to support their opinions about value, either qualitative (e.g., the importance of product representations) or quantitative (e.g., the reduction in property value attributable to the stigma associated with a contaminated property). Survey data is appealing, because it seems easily translatable to a class of plaintiffs. Rife with potential methodological errors. 54

55 Causation Opinions: Common Methodological Flaws Surveys Survey data and related expert testimony can be excluded if survey questions don t accurately reflect factual circumstances of class members. E.g., Cannon v. BP Prods. N. Am., Inc., No. 3:10-cv , 2013 WL at *13-14 (S.D. Tex., Sept. 30, 2013) (excluding expert s contingent valuation analysis where: (a) survey participants were not informed that their communities had comparable or worse levels of contamination than those in the hypothetical scenarios they were asked to evaluate; and (b) hypothetical scenarios in survey included facts (e.g., distance from the refinery) which differed from the factual circumstances of many class members). 55

56 Causation Opinions: Common Methodological Flaws Regression analyses Regression analysis: a statistical tool designed to express the relationship between one variable, such as price, and explanatory variables that may affect the first variable. In re Aftermarket Auto. Lighting Prods. Antitrust Litig., 276 F.R.D. 364, 371 (C.D. Cal. 2011). Plaintiffs often use in class actions to attempt to isolate the impact of a defendant s conduct or an event on price or value. 56

57 Causation Opinions: Common Methodological Flaws Regression analyses Frequent sources of error include: Invalid assumptions, particularly related to continuity over time or the factual circumstances of class members. E.g., Cannon, 2013 WL , at *8-9 (excluding expert where regression analysis failed to: (a) make the appropriate comparison between the change in values in the class and control areas area before and after allegedly significant emissions events; and (b) control for other variables (e.g., effects of a hurricane)). While any single defect in a regression analysis may not be sufficient grounds for exclusion, if the errors add up, the plaintiffs experts opinion may be excluded. 57

58 Causation Opinions: Common Methodological Flaws Comcast Problem Plaintiffs expert s testimony does not track/support theory of liability Refers to Comcast v. Behrend, 133 S. Ct (2013) Certiorari granted to address: Whether a district court may certify a class action without resolving whether the plaintiff class had introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis. Plaintiffs originally alleged 4 theories of antitrust impact; district court rejected 3 out of 4 Class could not be certified because Plaintiffs expert failed to differentiate among the damages attributable to different theories of antitrust impact, all but one of which had been rejected Not a Daubert issue, but a relevance issue 58

59 Causation Opinions: Common Methodological Flaws Comcast Problem Plaintiffs expert s testimony does not track/support theory of liability Consensus that impact of decision has been somewhat limited: Antitrust Plaintiffs, on notice of issue, know to differentiate among damages attributable to various theories of liability 59

60 Causation Opinions: Common Methodological Flaws Comcast may provide a viable basis for attacking plaintiffs experts in other, limited contexts Food litigation - Misrepresentation claims Challenged label claims, such as all natural, likely mean different things to different purchasers. Labeling claim at issue encompasses multiple product characteristics, of which only one or a few are allegedly inconsistent with the representation. E.g., Randolph v. J.M. Smucker Co., 303 F.R.D. 679, (S.D. Fla. 2014) 60

61 Causation Opinions: Common Methodological Flaws Comcast Problem Plaintiffs experts have had considerable difficulty isolating the price impact solely attributable to the ingredient (e.g., GMO) or characteristic (e.g., presence/absence of a warning) that allegedly renders the defendant s representation inaccurate. Randolph v. J.M. Smucker Co., 303 F.R.D. 679 (S.D. Fla. 2014) Werderbaugh v. Blue Diamond Growers, No. 12-CV , 2014 WL (N.D. Cal. Dec. 15, 2014) Brazil v. Dole Packaged Foods, LLC, No. 12-cv-01831, 2014 WL (N.D. Cal. Nov. 6, 2014) (denying Daubert motion as moot in light of ruling that damages analysis failed to satisfy Comcast) 61