Does 'Dukes' Require Full 'Daubert' Scrutiny at Class Certification?

When moving or opposing a motion for class certification, litigants with increasing frequency rely on expert testimony. This has manifested in a debate among district courts, and more recently, among certain circuit courts, as to the level of Daubert scrutiny to be applied at the early class certification stage. In its recent decision in Wal-Mart Stores Inc. v. Dukes, the U.S. Supreme Court, while addressing whether plaintiffs met Rule 23(a)(2)’s “commonality” requirement, seemingly entered the fray.¹ Specifically, the Court noted, in dicta, that “[t]he District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings.” The Supreme Court’s response: “[w]e doubt that is so….”

While far from categorical, coming from the Supreme Court, this dicta undoubtedly will, and has, been seized upon by some to argue that the Court has endorsed a requirement that a full Daubert examination at class certification is required in every case—thereby taking away the district court’s discretion in formulating a case-specific class certification inquiry. For many of the reasons detailed below, including those articulated by the U.S. Court of Appeals for the Eighth Circuit in its recent decision in In re Zurn Pex Plumbing Products Liability Litigation, in the words of the Supreme Court, we doubt that is so.

‘Daubert’