Use and misuse of expert opinions at the class certification stage

As the number of class actions in the United States increases, so does the device of employing expert witnesses to give opinions at the class certification stage as to the ultimate legal issues of manageability, predominance and superiority, the elements required in federal court by Rule 23 of the F...

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Bibliographic Details
Published in:Defense counsel journal 2002-07, Vol.69 (3), p.285
Main Authors: Davis, Dwight J, Kowalski, Karen R
Format: Article
Language:English
Subjects:
Antitrust
Certification
Civil procedure
Class action lawsuits
District courts
Evidence
Expert witness testimony
Federal court decisions
Federal Rules of Civil Procedure
Products liability
State court decisions
State laws
Testimony
Tires
Trials
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Summary:As the number of class actions in the United States increases, so does the device of employing expert witnesses to give opinions at the class certification stage as to the ultimate legal issues of manageability, predominance and superiority, the elements required in federal court by Rule 23 of the Federal Rules of Civil Procedure. The use of experts at this stage of class litigation is inappropriate. They should be prohibited from testifying on the legal propriety of class certification, but there are ways of effectively countering their opinions if they are allowed to testify. If expert testimony is used at class certification stage, there must be assurances of its reliability. The Daubert/Kumho Tire standard should be applied at this stage. Under that standard, the trial court is to act as a "gatekeeper" to prevent experts from testifying if: 1. they are not qualified, 2. their opinions are not subject to empirical proof, or 3. the opinion does not logically follow from the evidence. There are also a number of legal tactics available to defense counsel to nullify the expert's opinion. Defense counsel can attack plaintiff's expert witness effectively on several levels at the class certification stage.
ISSN:0895-0016
2376-3906