In re Blood Reagents Antitrust Litigation, 783 F.3d 183 (3d Cir. 2015). In Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013), discussed here, the Supreme Court reversed the 2011 decision of the Third Circuit in Behrend. In that decision, the Third Circuit had stated that if a plaintiff’s damages model could “evolve to become admissible evidence,” challenges to that damages model under Daubert v. Merrelll Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), need not be resolved before certifying a class. The District Court in this case had relied on the Third Circuit’s Behrend decision in certifying this matter as a class action. In today’s opinion by Judge Scirica, the Third Circuit ruled that its own “‘could evolve’ formulation of the Rule 23 standard did not survive” the Supreme Court’s decision in Behrend. Accordingly, the panel reversed class certification and remanded for reconsideration.
The key takeaway from this decision was Judge Scirica’s statement that the panel “join[ed] certain of our sister courts to hold that a plaintiff cannot rely on challenged expert testimony, when critical to class certification, to demonstrate conformity with Rule 23 unless the plaintiff also demonstrates, and the trial court finds, that the expert testimony satisfies the standard set out in Daubert.” Judge Scirica cited cases from the Seventh, Eighth, and Ninth Circuits that had reached a similar conclusion, and stated that Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011), which, in dicta, expressed doubt “that Daubert did not apply to expert testimony at the certification stage of class-action proceedings,” also supported the idea that Daubert did in fact apply.
Overall, this decision is not much of a surprise, especially given the Dukes dicta and the decisions in other Circuits. Plaintiffs will have a new opportunity to seek class certification, and defendant will be able to assert Daubert objections to plaintiffs’ damages model. If plaintiffs overcome such objections, the class will be certified once again.