Use and Misuse of Expert Opinions at the Class ... - King & Spalding

Page 294 DEFENSE COUNSEL JOURNAL—July 2002
found to be based on unreliable conclusions
or theories, the class action vehicle is
not the most efficient means of proceeding.
PRACTICAL ADVICE ON
ATTACKING EXPERTS AT
CLASS CERTIFICATION STAGE
Despite the increased employment by
plaintiffs of experts to opine on issues of
law in support of motions for class certification,
there are a number of legal tactics
available to defense counsel to nullify the
expert’s opinion. Defense counsel can attack
plaintiff’s expert witness effectively
on several levels at the class certification
stage.
A. Attack on Legal Basis
Defense counsel should attack an expert’s
testimony on a legal basis, arguing
that: (1) the plaintiff’s expert is testifying
to issues of law, which is prohibited under
Evidence Rule 702, and (2) there is no legal
precedent that calls for the opinion of a
“legal expert” to aid the court in making
the determination that the class is appropriate
for certification.
This attack can be employed early in the
litigation and should be considered as soon
as the expert is identified. Because it is
based on a legal objection, there is no need
even to depose the expert. Although this
legal tactic has been virtually untapped, it
remains a strong argument because it establishes
that there is no foundation that
would allow experts to testify at class certification
hearings. If the expert is knocked
out early, the plaintiffs’ likelihood of obtaining
certification of the case may evaporate.
B. Establish that Expert Does Not
Qualify under Daubert
Although the federal courts of appeals
have not embraced Daubert in the class
certification context, defendants should
challenge the expert testimony offered in
support of plaintiff’s motion for class certification
on the ground that the expert does
not qualify under Daubert. In Visa Check/
MasterMoney, the district court rejected
the idea that a formal Daubert inquiry
should be applied at the certification stage.
Nonetheless, it stated that “there is a [limited]
role for a Daubert inquiry at this
stage,” thereby leaving defense counsel
with the opportunity to raise the issue of
the admissibility of the expert’s opinion. 60
The court also stated that the standard
for whether a court should admit expert
testimony at the certification stage turns on
whether the “expert opinion [is] so flawed
that it is inadmissible as a matter of law.”
In order for defense counsel to establish
that the testimony is suitably “flawed,” the
district court hinted that counsel must demonstrate
that: (1) plaintiff’s expert has no
qualifications that would establish him as
an expert to testify on such an issue, and
(2) plaintiff’s expert “failed to rely upon
the type of methodology and data typically
used and accepted in such cases.” 61
The jurisprudence on the admissibility
of expert opinions on issues relevant to determining
class certification is still evolving.
Thus, it is necessary for defense counsel
to continue to raise a Daubert motion at
the certification stage. That motion also
has the benefit of bringing to the attention
of the court some of the problems that are
associated with certifying the class. 62
60. 192 F.R.D. 68, 76-78. The court raised two
arguments that defendants had failed to make that in
sum may have shown that the expert’s opinion was
the kind of “junk science that a Daubert inquiry at
this preliminary stage ought to screen.”
61. Id. at 78. See also Ignition Switch, 194
F.R.D. at 493-94. Here, the defendant did not make a
Daubert motion but provided evidence to show how
the plaintiff’s expert used a technique that ran
counter to accepted statistical norms. The court inter
alia made note of the concerns raised by the defendants
and denied class certification.
62. See Alice A. Kelly & Joy L. Holley, Using
Daubert to Oppose Class Action Certification, 4
ANDDLR 6 (2001) (hereinafter “Using Daubert”).
Kelly and Holley explain that in Sanneman, 191
F.R.D. 441, the court heard oral argument on the
defendant’s motion to strike or exclude expert testimony.
While the court ultimately denied the motion,
it was an effective legal tactic, highlighting several
reasons why class certification was not appropriate
and leading the court to find that class treatment was
not right for this case.