Each month, lawyers at Mayer Brown LLP, which has the nation’s largest and oldest Supreme Court & Appellate practice, are pleased to offer the readers of InsideCounsel their insights on the most compelling developments in the United States Supreme Court that are relevant to in-house counsel. Today, we look at two current cases, Amgen Inc. v. Connecticut Retirement Plans and Trust Funds and Comcast Corp. v. Behrend. Both cases were argued on November 5, 2012, and each addresses critical questions affecting class action litigation.
Resolving admissibility of expert testimony on class-wide damages at the class certification stage. At issue in Comcast Corp. v. Behrend, is “whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.”
That issue matters a great deal. Plaintiffs often make use of expert testimony at the class-certification stage in an effort to assure courts that damages calculations can readily be performed on a class-wide basis. In response, defendants often contend that—before a class may be certified—the district court must determine that expert testimony is admissible under Federal Rule of Evidence 702, as interpreted by Daubert v. Merrell Dow Pharmaceuticals, Inc.) and its progeny. Under Daubert, district judges must act as gatekeepers in assessing the reliability of the expert’s methodology and the application of that methodology to the facts of the case. In practice, however, many courts accept those assurances without conducting a Daubert inquiry, preferring to defer admissibility questions until trial. Yet trials of class actions are exceedingly rare, because an order certifying a class creates extraordinary pressure on defendants to settle rather than risk an adverse—potentially massive—jury verdict.