Daubert Challenge Threatens Class Certification

December 2018

While Daubert provides common challenges to the admissibility of expert testimony, inconsistent positions regarding its applicability at the class certification stage remain. Generally, it is advisable for both plaintiffs and defendants to involve expert witnesses as part of the class certification stage, to clarify appropriate approaches, achievable outcomes and/or demonstrate the strength of a party’s positions. Often, such expert input provides a basis for meaningful and productive settlement discussions. However, in addition to the benefits obtained, the degree of risk one is undertaking by not involving experts at this stage was underscored in a series of decisions that ultimately recently came before the Ninth Circuit.

In Sali v. Corona Regional Medical Center, a district court denied a class certification involving registered nurses. The nurses alleged they were underpaid because of the Medical Center’s rounding of time, regular-rate calculations, wage statements and waiting time issues. To support class certification, Plaintiffs Marlyn Sali and Deborah Spriggs submitted a declaration that was prepared by a paralegal from their counsel’s firm. The paralegal’s declaration indicated that he created spreadsheets containing data from the named Plaintiffs’ time sheets and calculated that the medical center’s time policy undercounted clock-in and clock-out times by an average of 8 minutes per shift. In deciding not to certify the class, the district court noted multiple insufficiencies in the paralegal’s declaration. These included the following:

  1. The paralegal did not have personal knowledge of the data contained in the spreadsheets and was unable to authenticate the data validity;
  2. The paralegal’s “manipulation and analysis of raw data to reach cumulative conclusions is the technical or specialized work of an expert witness,” and the paralegal lacked the qualifications to conduct this analysis.

The district court denial was based, in part, on requiring supporting evidence to be admissible. On appeal, the Plaintiffs argued before the Ninth Circuit panel that a motion for class certification does not need to provide admissible evidence since the certification decision can be changed later in the litigation.

The Ninth Circuit agreed. On November 27, 2018, it issued an amended order in Sali v. Corona Regional Medical Center, holding that evidence need not be admissible to be considered at the class certification stage.

Although the Plaintiffs ultimately prevailed on this issue in this matter, the Ninth Circuit’s decision represents a split among the circuits, as many courts will apply Daubert standards to matters of expert testimony in certification proceedings. Had Plaintiff offered an analysis prepared by an expert, it could likely have avoided this issue at the district court level.  By relying on a paralegal instead of an expert opinion regarding proper analytical or statistical analyses and/or appropriate inferential statistical tests/methods and extrapolations, the case was put at significant risk and endured additional costs.

Fulcrum Inquiry performs expert witness damage analyses related to labor and employment (including class action matters).

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