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

Page 290 DEFENSE COUNSEL JOURNAL—July 2002
determination that the class has met the requirements
for certification. These decisions
merely state that in order to understand
the claims, defenses, relevant facts
and applicable substantive law, a district
court should make every necessary legal
and factual inquiry. It is inconceivable that
these cases suggest the use of inadmissible
evidence in a class certification inquiry. In
neither Coopers & Lybrand nor Szabo did
the parties offer expert opinions at the certification
stage
PROHIBITING EXPERT
TESTIMONY UNDER
TRADITIONAL RULES OF
EVIDENCE ANALYSIS
Rule 702 of the Federal Rules of Evidence
provides: “If scientific, technical, or
other specialized knowledge will assist the
trier of fact to understand the evidence or
to determine a fact in issue, a witness
qualified as an expert . . . may testify
thereto.” Under a Rule 702 analysis, experts
should be prohibited from testifying
at the class certification stage, as they are
opining on questions of law rather than
questions of fact. An expert’s testimony is
neither helpful nor necessary for a court
when it dissects issues of law. 34
A. Legal Experts
Although it is well settled that experts
may provide an opinion to aid a jury or
judge to comprehend complex facts, experts
may not testify as to the ultimate
legal conclusions based on those facts. 35
Every federal court of appeals has agreed
that an expert is prohibited from testifying
as to issues of law. “[T]he majority rule is
so well-established that it is often deemed
a basic premise or assumption of evidence
law—a kind of axiomatic principle.” 36
Moreover, the language of Rule 702 does
not provide for expert testimony for any
purpose other than to help the trier of fact
understand the factual material presented
by the parties during trial.
Even under a broad interpretation of
Rule 702, expert testimony on legal issues
should be prohibited. This interpretation is
reasonable for two reasons. First, the district
court’s determination of whether the
movant has met the criteria of Rule 23 for
class treatment is a legal question, not one
of fact. 37 Second, class certification does
not require a trier of fact; a motion for
class certification is not a trial. 38
Indeed, although, the issue of class treatment
is a legal question, courts nevertheless
have repeatedly allowed plaintiffs and
defendants alike to offer expert opinions
into the record at certification. This practice
ignores certain basic realities of modern
litigation. 39
1. Under Guise of Avoiding Battle of
Experts, Courts Leave the Field
to Plaintiffs
Courts often are presented with the problem
of how much weight to give to one
expert over another. This so-called “battle
of the experts” is an issue that will continue
to trouble courts as long as experts
are used at the certification stage. Federal
courts have varying views on this issue, but
a curious analysis has developed in some
circuits. In these circuits, courts state that a
34. For example, in In re Initial Public Offering
Securities Litig., 174 F.Supp.2d 61, 64 (S.D. N.Y.
2001), the district court denied the admissibility of
expert opinions on an issue of law. The defendants
moved to recuse the court. In support of their motion,
the defendants proffered the affidavits and declarations
of two experts in judicial ethics. The district
court rejected the contention that the experts’
opinions were admissible, concluding that Rule 702
prohibits such use.
35. United States v. Bilzerian, 926 F.2d 1285,
1294 (2d Cir. 1991).
36. Thomas Baker, The Impropriety of Expert
Witness Testimony on the Law, 40 U. KAN. L. REV.
325, 352 (1992). See, e.g., Initial Public Offering,
174 F.Supp.2d at 64 (concluding that expert on judicial
ethics cannot opine on judge’s recusal, given
that it is issue of law).
37. Schenek v. FSI Futures Inc., 1998 WL
427625, at *4 (S.D. N.Y.) (“[T]he question whether
to certify class is one of law, resting in district
court’s discretion, and falling outside the usual legitimate
boundaries of expert opinion testimony.”)
38. Visa Check/MasterMoney, 192 F.R.D. at 68,
76.
39. See Note, Expert Legal Testimony, 97 HARV.
L. REV. 797, 808-11 (1984).