On April 8, 2015, in In re: Blood Reagents Antitrust Litigation [ (April 8, 2015)], the US Court of Appeals for the Third Circuit joined other circuit courts in holding that a plaintiff’s expert testimony, when critical to class certification, must satisfy the standard set out by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) to support class certification.

Plaintiffs were direct purchasers of blood reagents from defendants Immucor, Inc. and Ortho-Clinical Diagnostics, Inc (Ortho). Plaintiffs alleged that defendants violated federal antitrust law by conspiring to fix blood reagent prices. During a hearing to determine whether to certify plaintiffs’ class, plaintiffs relied on expert testimony to produce most of their antitrust impact analyses and damages models. The expert testimony was offered to demonstrate that common questions predominated over individual questions as required by Federal Rule of Civil Procedure 23(b)(3). Although Ortho challenged the reliability of the expert testimony, the district court certified the class, stating that the testimony “could evolve to become admissible evidence” at trial. Ortho appealed, arguing that the trial court should have scrutinized the plaintiffs’ expert’s testimony under Daubert.

The Third Circuit agreed and held that a plaintiff cannot rely on challenged expert testimony, when critical to class certification, to demonstrate conformity with FRCP 23 unless the plaintiff also demonstrates, and the trial court finds, that the expert testimony satisfies the standard set out in Daubert. This means that the party seeking certification must:

The Third Circuit vacated the class certification order and remanded the matter to the district court to decide which of Ortho’s reliability attacks challenge those aspects of plaintiffs’ expert testimony offered to satisfy FRCP 23 and, if necessary, to conduct a Daubert inquiry before assessing whether the requirements of FRCP 23 have been met.