United States: Experts Must Satisfy Daubert Standards At Certification Stage

Last Updated: June 6 2018
Article by Gregory V. Mersol

D.C. District Court Follows Dukes Admonition

Nearly seven years ago, in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), the Supreme Court addressed, at least in significant respect, the question of whether experts must satisfy Daubert standards at the class certification stage. In that case, the plaintiffs sought to use expert testimony about claimed gender bias in "corporate culture," testimony the defendant sought to exclude. In relying on the testimony, the Dukes district court held that "Daubert did not apply to expert testimony at the certification stage." In response to this pronouncement, the majority of the Supreme Court simply stated, "We doubt that is so." We blogged this issue and the state of the law in 2011. Even prior to Dukes, it appeared that the majority of courts did find Daubert standards to apply.

Last month, the 9th Circuit issued its decision in Sali v. Corona Regional Medical Center, No. 15-56460 (9th Cir., May 3, 2018). We blogged that decision here. Curiously, while the 9th Circuit addressed and even relied upon various portions of the Dukes decision, it went on to hold that Daubert standards did not apply at the certification stage. The order does not meaningfully address the part of Dukes that specifically cast doubt on such a holding. The 9th Circuit then went on to find that the district court actually abused its discretion in denying certification of a class alleging improper time-keeping and payroll practices.

A more thorough and thoughtful opinion is that of the D.C. District Court in Campbell v. National Railroad Passenger Corp., Civil Action No. 99-2927 (D.D.C., Apr. 26, 2018). The Campbell case involved claims of race discrimination in a host of employment practices at Amtrak. The putative class included 11,000 unionized Amtrak employees, former employees and applicants for employment. The plaintiffs moved for certification, which the defendant opposed in part by arguing that the plaintiffs' experts could not meet Daubert standards.

In ruling on this issue, the court noted that the application of Daubert standards had "beguiled the federal courts" (citation omitted). Addressing the Supreme Court's decision in Dukes, it noted:

The Supreme Court has strongly hinted that district courts should apply the same standard at the class-certification stage that they would apply to expert testimony offered at a later stage of proceedings. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 354 (2011) (casting "doubt" on the conclusion "that Daubert did not apply to expert testimony at the certification stage of class-action proceedings").

Noting that the Supreme Court had been unable to reach the question later in the case of Comcast Corp. v. Behrend, 569 U.S. 27 (2013), the district court then engaged in a scholarly review of the case law on this issue. It found that most courts applied Daubert, some did not and some applied an intermediate standard. Those that did not apply Daubert tended to find that it was not appropriate to address merits issues at the certification stage or that doing so at that stage was "premature." But the majority that did follow Daubert did so for several reasons that included:

  • A full Daubert inquiry was more consistent with the "rigorous analysis" required of certification decisions generally.
  • The 2003 amendments to Rule 23 removed "conditional" certification as an option.
  • The Dukes decision obligated courts to consider merits issues at the certification stage.

The district court therefore concluded that Daubert standards did apply. While it found that two of the plaintiffs' experts did meet Daubert standards, one did not. That expert, Jay Finkelman, was an industrial psychiatrist. Based largely on documents selected by plaintiffs' counsel, Dr. Finkelman opined that Amtrak's policies were not "consistent with generally accepted human resources practices and the general principles of industrial organizational psychology." The court found, however, that Dr. Finkelman had not reviewed many critical documents, such as the depositions of Amtrak's human resources employees, job-selection documents, or the company's anti-discrimination policies or complaint procedures. Indeed, the court found that he frequently relied on slanted summaries of testimony prepared by plaintiffs' counsel. Worse, Dr. Finkelman did not "cite a single study, report, or other source for his opinions related to appropriate human-resources policies and practices. And, although he opines that Amtrak permitted an inappropriate degree of subjectivity in its hiring and promotion practices, Dr. Finkelman did not attempt to measure the degree of subjectivity at Amtrak." Finding significant problems with the claimed facts relied upon by Dr. Finkelman as well as his methodology (or lack of it), the district court excluded his testimony and ultimately denied certification.

The district court rightly decided this issue. The core of the plaintiffs' case was tied to a report that did little more than echo issues made up by their lawyers. Given the size of the case (as with any class action), relying on such flimsy evidence would only cost the court and the parties extensive resources for a case that likely could never be proven. Without a mechanism to screen out unsustainable expert testimony, courts would certify weak classes that simply cannot be sustained over time.

The bottom line: The 9th Circuit notwithstanding, most courts continue to apply the commonsense rule that Daubert standards should apply to experts in certification proceedings.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions