The Eighth Circuit recently weighed in on the debate about whether Daubert motions challenging expert testimony should be decided prior to class certification and whether a “full” Daubert analysis is appropriate.  This was a 2-1 decision with thorough opinions and interesting points made by the majority and dissent. 

In re Zurn Pex Plumbing Products Liability Litigation, No. 10-2267 (8th Cir. July 6, 2011) (copy available on the Eighth Circuit website) is a putative class action against a manufacturer of polyethylene (PEX) plumbing systems, alleging that brass fittings used in the systems, which are installed in homes throughout the United States, are “doomed to leak” because they are susceptible to stress corrosion cracking.  (Incidentally, this is an issue that likely has led to insurance claims for water damage, and insurance company subrogation departments should be making sure that they take appropriate steps to either participate in or opt out of this class action.)  The class certification motion practice focused heavily on two experts proffered by the plaintiffs: one expert who tested the fittings and opined that stress corrosion cracking would occur rapidly, and a statistical expert who opined based on the test results that 99% of homes would have a leak within 25 years.  According to the dissent, the expert analysis was largely based on assumptions and actual test results showed no failures after 40 years’ worth of water passed through the fittings. 

The majority held that “the district court did not err by conducting a focused Daubert analysis which scrutinized the reliability of the expert testimony in light of the criteria for class certification and the current state of the evidence,” but did not make a ruling as to the admissibility of the expert testimony at trial.  The majority reasoned that: (1) the defendant sought bifurcated discovery between class and merits issues, “preventing the kind of full and conclusive Daubert inquiry [the defendant] later requested”; (2) “[t]he main purpose of Daubert exclusion is to protect juries from being swayed by dubious scientific testimony” and that is not relevant where a judge is the decision maker on class certification; and (3) “a court’s inquiry on a motion for class certification is ‘tentative,’ ‘preliminary’ and ‘limited.’” 

Judge Gruender’s dissent emphasized that: (1) the Supreme Court in Wal-Mart indicated, albeit in dicta, that Daubert should apply at the class certification stage, somewhat contrary to the majority opinion; (2) both the Seventh and Eleventh Circuits have applied Daubert fully on class certification; and (3) although class certification is decided by judges not juries, courts should be concerned about proceeding with class litigation where expert testimony does not satisfy Daubert

This is a key issue for insurers because, like product defect cases, most insurance class actions focus heavily on expert testimony at the class certification stage.  Given the divided panel opinion and split with the Seventh and Eleventh Circuits, it will be interesting to see if this decision is reviewed en banc or by the Supreme Court.  One key lesson here is to be careful in structuring bifurcation of discovery.  It’s often necessary to bifurcate, but you don’t want to hamstring plaintiff’s counsel in a way that allows them to argue that Daubert cannot be applied because the expert did not have access to information he or she desired.  

I’m not sure that the majority’s reasoning here about Daubert’s focus on jury trials or the “tentative” nature of class certification decisions make sense.  The trial judge ruling on class certification is supposed to envision how the case would be tried, so if a jury trial has been demanded, the judge envisioning how the case would be tried should be looking at the evidence that would go to the jury.  Allowing expert testimony for purposes of class certification and then throwing it out later, possibly leading to decertification, is a waste of substantial resources of the parties and the court.  The majority’s statement that class certification is “tentative, preliminary and limited,” citing to the Supreme Court’s Coopers & Lybrand opinion from 1978, seems inconsistent with modern class action practice.  While a class can always be decertified later, the type of rigorous analysis contemplated by Wal-Mart and other recent decisions is hardly “tentative” or “limited.”  My guess is that Judge Gruender’s dissent in this case and the Seventh and Eleventh Circuit opinions he cites will probably ultimately prevail as the law develops further in this area.  A judge performing a Daubert analysis at the class certification stage, however, does not need to analyze the admissibility of testimony that is not relevant to class certification issues.  To the extent that is what the majority in Zurn Pex is driving at, I agree. 

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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.