Originally uploaded at SSRN.


In recent years, the class action certification hearing has become the latest forum for disputes over the reliability of expert testimony. Since these hearings may involve complex technical matters, litigants frequently try to introduce expert testimony to either establish or challenge the basic requirements for class certification. Yet, most courts do not conduct a Daubert analysis before admitting expert testimony during certification, evaluate the evidence according to a uniform standard, or adequately weigh opposing expert opinions.

Even though the Federal Rules of Evidence codify procedures to ensure the reliability of expert testimony, courts have been reluctant to employ them during class certification. This hesitation primarily arises from a fear of moving into the substantive merits of the case. Certifying a class based on unreliable expert testimony forces courts to decertify the class later in the process, encourages frivolous suits that strong-arm risk averse defendants into settlement, wastes judicial resources, and undermines the legitimate purposes of the class action mechanism. Ideally, to make a fair and informed decision on certification, judges should use the wide latitude in the current gray area between Eisen v. Carlisle & Jacquelin's prohibition on an inquiry into the case's merits and General Telephone Company v. Falcon's rigorous analysis requirement to (1) routinely apply Daubert as a precursor to admitting expert evidence, (2) adequately weigh opposing expert opinions as well as the rest of the evidence, and (3) employ a preponderance of the evidence standard to determine the sufficiency of the plaintiffs' proof before resolving ambiguities in favor of the plaintiffs and erring on the side of certification.

This Comment takes a closer look at the judicial handling of experts in federal class certification hearings, the amount of proof required for certification, and how courts evaluate the sufficiency of the evidence. The Comment ultimately argues that courts should admit expert affidavits and reports only if they survive an initial Daubert analysis.