Rule 23 of the Federal Rules of Civil Procedure requires plaintiffs in a class action suit to prove to a court that “questions of law or fact common to class members predominate over any questions affecting only individual members” to proceed in a class action lawsuit. Although the Supreme Court has never explicitly held that the plaintiff must do so using admissible evidence, in Wal-Mart Stores, Inc. v. Dukes (2011), the Court said it “doubt[ed]” that Daubert does not “apply to expert testimony at the certification stage of class-action proceedings.” Daubert governs the admissibility of an expert witness’s testimony in federal court.
In Sail v. Corona Regional Medical Center (2018), the Central District of California refused to grant certification to a class because it would not consider evidence that would not be admissible at trial during the class certification proceedings. In May, the Ninth Circuit reversed, holding that a court may consider inadmissible evidence when deciding whether to grant a class certification. The Ninth Circuit reached this decision because of the challenges a plaintiff faces in obtaining admissible evidence. The Ninth Circuit explained that “the evidence needed to prove a class’s case often lies in a defendant’s possession and may be obtained only through discovery.” In other words, requiring that a plaintiff provide evidence—prior to discovery—that is in the defendant’s possession would be an unreasonable standard.
On November 1, the Ninth Circuit refused a petition for a rehearing en banc. Judge Carlos Bea, along with four other judges, dissented. In a sharply worded dissent, Judge Bea wrote that the Ninth Circuit fell “on the short side of a lopsided circuit split,” noting that only one other circuit agreed with the Ninth Circuit’s decision.
Must the evidence presented during class certification proceedings be admissible at trial?
The Eighth Circuit and now the Ninth Circuit allow courts to consider inadmissible evidence at the class certification stage. Conversely, the Second, Third, Fifth, and Seventh Circuits require admissible evidence for class certification. Additionally, the Sixth Circuit and the Eleventh Circuits held that they require admissible evidence, but did so in unpublished opinions.
The Eighth Circuit, in In re Zurn Pex Plumbing Products Liability Litigation (2011), held that evidence for class certification does not have to be admissible at trial. However, the Eighth Circuit noted that a class’s status could change after discovery, writing that “exhaustive and conclusive Daubert inquiry before the completion of merits discovery cannot be reconciled with the inherently preliminary nature of pretrial evidentiary and class certification rulings.” Additionally, the district court in this case allowed the evidence only after 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.” This rule, according to Judge Bea, is more stringent than the Ninth Circuit’s new standard.
The Second, Third, Fifth, Seventh Circuits require admissible evidence during the class certification stage. The Third Circuit explained that a party cannot meet the standard articulated in Rule 23 through potentially inadmissible evidence In re Blood Reagents Antitrust Litig, (2015). Similarly, these other circuits also require that a district court determine whether or not evidence is admissible at the certification stage. To support this opinion, these Circuits often cited the Supreme Court case Comcast Corporation v. Behrend (2013) which held that a plaintiff must have “evidentiary proof” to satisfy Rule 23.
Although the Supreme Court has not explicitly ruled on this issue, now that the gap between the circuits has widened, they might have reason to do so. Until then, a plaintiff should be thoughtful when selecting a forum in which to bring a class action lawsuit.