Class action lawsuits are becoming increasingly common, and the certification stage is often the most important part of the process. At this stage, the court must determine whether the prerequisites for class action lawsuits set out in Rule 23 have been met. To do this, the court may require expert evidence to be presented. This article will discuss the rules for expert witnesses in class action lawsuits and how to ensure that their opinion is admissible. The Supreme Court and many federal circuit courts have observed that some level of Daubert analysis must be performed at the certification stage.
This analysis is used to assess the reliability of expert evidence and ensure that it meets certain standards. However, the courts are divided as to the exact analysis that must be performed. In some cases, the court may order the parties to demonstrate why expert witnesses should not be appointed and may ask them to submit nominations. The court may appoint any expert that the parties agree and whom it deems appropriate. However, the court can only appoint someone who gives consent to act.
Expert witnesses working on class action certification may be asked to write reports that are subject to evidence, such as expert witness statements about the certification of a class action lawsuit, to testify as expert witnesses at a class action certification hearing, and to be subject to Daubert and other challenges. Regardless of the jurisdiction in which the potential class action lawsuit is pending, it is likely that it will be crucial to ensure that the expert's opinion is admissible under applicable rules. Experts hired to assist in the class action certification process must be well-trained and prepared and strive to produce a work product of the highest quality. In Dukes v. Wal-Mart Stores Inc., the Supreme Court instructed lower courts to conduct a “rigorous analysis” that the prerequisites for class actions set out in Rule 23 were met. The use of experts has increased in the early stages of class action lawsuits following this decision. While the use of experts in the collective certification stage is similar to that use in other stages of litigation, its value may be more significant, especially if it can end the lawsuit before it begins.
It is therefore important for those involved in class action lawsuits to understand how expert witnesses can help them achieve their goals.