United States District Court, D. Kansas
IN RE EpiPen Epinephrine Injection, USP Marketing, Sales Practices and Antitrust Litigation This Document Applies to Consumer Cases MDL No. 2785
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
multi-district litigation presents itself at the class
certification stage. Consistent with Scheduling Order No. 5
(Doc. 1263), plaintiffs already have filed their Motion for
Class Certification (Doc. 1353) and defendants already have
filed their Memorandum in Opposition to Class Certification
(Doc. 1503-3). A class certification hearing is scheduled for
June 11 and June 12, 2019 (Doc. 1421). Before the court is
defendants Mylan's and Pfizer's Motion to Amend
Scheduling Order No. 5 (Doc. 1486) to add a
Daubert briefing schedule to the class
certification proceedings. Because the trend of authority
supports challenges to expert witnesses at the class
certification stage and because expert witnesses are likely
to play an important role in the court's class
certification analysis, the court grants defendants'
Motion to Amend.
Procedural History and Arguments on Motion to Amend
November 2018, the court issued Scheduling Order No. 5,
establishing briefing deadlines for class certification
consistent with those requested by the parties. Doc. 1263 at
1. Scheduling Order No. 5 established a December 7, 2018,
deadline for plaintiffs to move for class certification; a
March 18, 2019, deadline for defendants' response to the
motion for class certification; and an April 22, 2019,
deadline for plaintiffs' reply. Id. Scheduling
Order No. 5 didn't refer to challenges to experts at the
class certification stage, through separate motion practice.
See Id. at 1-2.
timely moved for class certification. Doc. 1353. On March 8,
2019, the court held a telephone status conference. Before
the conference, defendants submitted a letter informing the
court that the parties disagreed about adding a
Daubert briefing schedule to Scheduling Order No. 5.
Doc. 1486-1. The parties and the court discussed the matter
during the status conference, and defendants filed a Motion
to Amend, to which they attached the aforementioned letter.
Doc. 1486. In their Motion to Amend, defendants contend a
trend of authority supports allowing Daubert
briefing at the class certification stage because the
propriety of the experts offered by plaintiffs may affect the
analysis that governs plaintiffs' burden at the class
certification stage. Doc. 1486-1 at 2-3. Plaintiffs'
Response advances three arguments: (1) a Daubert
analysis either does not apply or is not required at the
class certification stage; (2) Scheduling Order No. 5 does
not provide for Daubert motions and briefing; and
(3) defendants have not satisfied the good cause standard,
established by Federal Rule of Civil Procedure 16(b)(4), for
amending a scheduling order. Doc. 1494 at 3-8.
Defendants' Reply argues that the proposed amendment
satisfies the good cause standard because Daubert
briefing will not delay the class certification process and
will assist the court's analysis. Doc. 1513 at 5-6.
defendants' Motion to Amend hinges on two questions: (1)
does Daubert apply at the class certification stage;
and (2) have defendants satisfied the Rule 16(b)(4), good
cause standard for amending a scheduling order. The court
addresses each question in turn, below.
Role of Daubert at Class Certification
reviewing the relevant case law, the court concludes that the
trend of authority favors allowing Daubert-style
challenges at the class certification stage. While it appears
the Tenth Circuit has yet to address the matter, at least
three other circuits have approved the practice in published
opinions. See Messner v. Northshore Univ.
Healthsystem, 669 F.3d 802 (7th Cir. 2012); Ellis v.
Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir.
2011); In re Zurn Pex Plumbing Prods. Liab. Litig.,
644 F.3d 604, 612-14 (8th Cir. 2011). A fourth has signaled
its approval in an unpublished decision. Sher v. Raytheon
Co., 419 Fed.Appx. 887, 890-91 (11th Cir. 2011).
Plaintiffs, conversely, do not identify a single circuit that
has rejected the role of Daubert at the class
trend of authority in favor of applying Daubert at
the class certification stage is in accord with suggestions
from the Supreme Court. See Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 354 (2011) (expressing doubt about
district court's conclusion that Daubert did not
apply at class certification stage). Likewise, several recent
opinions from district courts within the Tenth Circuit have
permitted, or signaled the availability of,
Daubert-style challenges at the class certification
stage. See Beltran v. InterExchange, Inc., No.
14-cv-03074-CMA-CBS, 2018 WL 1509258, at *4 (D. Colo. Mar.
27, 2018) (adopting magistrate judge's order employing
“relaxed Daubert-like standard”);
Miller v. Farmers Ins. Grp., No. CIV-10-466-F, 2012
WL 8017244, at *5 (W.D. Okla. Mar. 22, 2012) (relying on
language from Wal-Mart Stores, Inc. to conclude it
was appropriate to apply Daubert); In re Cox
Enters., Inc. Set-Top Cable Television Box Antitrust
Litig., No. 09-ML-2048-C, 2011 WL 6826813, at *14 (W.D.
Okla. Dec. 28, 2011) (same); see also In re Syngenta AG
MIR 162 Corn Litig., No. 14-md-2591-JWL, 2016 WL
5371856, at *7 (D. Kan. Sept. 26, 2016) (suggesting
availability of Daubert challenge at class
certification stage: “Although Syngenta challenges the
reliability of those experts' opinions, it . . . did not
raise a Daubert challenge, and the Court assumes the
admissibility of those opinions at this stage”).
the case law contains some dissonance about the proper
breadth of Daubert-style challenges at the class
certification stage. Compare Am. Honda Motor Co. Inc. v.
Allen, 600 F.3d 813, 815-16 (7th Cir. 2010) (requiring
full Daubert analysis where expert opinion is
“critical” to class certification determination),
with In re Zurn, 644 F.3d at 611-13 (adopting
“tailored Daubert analysis” rather than
Seventh Circuit's position). Thus, the court will
synthesize the available, persuasive authority to establish
its view of the scope and contours of Daubert
proceedings at this stage of the litigation.
Rule of Civil Procedure 23 establishes the requirements for
class certification. Class “certification is proper
only if ‘the trial court is satisfied, after a rigorous
analysis, that the prerequisites of Rule 23(a) have been
satisfied.'” Wal-Mart Stores, Inc., 564
U.S. at 350-51 (quoting Gen. Tele. Co. of the Sw. v.
Falcon, 457 U.S. 147, 161 (1982)). The court must not
confuse the “rigorous analysis” required at the
class certification stage with an exposition into the merits
of the claim; but, “sometimes it may be necessary for
the court to probe behind the pleadings before coming to rest
on the certification question.” Falcon, 457
U.S. at 160. In accord with this latter sentiment,
“[t]he class determination generally involves
considerations that are enmeshed in the factual and legal
issues comprising the plaintiff's cause of action.”
opinions often play an important role at the class
certification stage. See, e.g., In re Urethane
Antitrust Litig., 251 F.R.D. 629, 634 (D. Kan. 2008)
(observing that both parties “submitted and rely
heavily on competing expert affidavits”). Thus, before
granting or denying class certification based on expert
evidence, a court must “ensure that the basis of the
expert opinion is not so flawed that it would be inadmissible
as a matter of law.” In re Visa
Check/MasterMoney Antitrust Litig., 280 F.3d 124,
135 (2d Cir. 2001) (superseded by statute on other grounds);
see Vickers v. Gen. Motors Corp., 204 F.R.D. 476,
479 (D. Kan. 2001) (“[A] court should not
‘certify a class on the basis of an expert opinion so
flawed that it is inadmissible as a matter of
law.'” (ellipsis omitted) (quoting In re Visa
Check/MasterMoney Antitrust Litig., 192 F.R.D. 68, 75
(E.D.N.Y. 2000))). Beyond this most basic threshold, the role
and scope of the Daubert analysis increases in step
with the importance of the expert opinion to plaintiff's
showing of Rule 23(a)'s requirements. If, for instance, a
plaintiff relies entirely on expert evidence to satisfy a
Rule 23(a) requirement for certification, a nearly
full-fledged Daubert analysis may be appropriate.
See Sher, 419 Fed.Appx. at 890 (“[I]f the
situation warrants, the district court must perform a full
Daubert analysis before certifying the
class.”) (citing Am. Honda Motor Co., Inc.,
600 F.3d at 816). In raising a Daubert-style
challenge to expert evidence at the class certification
stage, it is therefore incumbent on the challenging party to
establish the importance of the expert relative to the
putative class plaintiff's Rule 23(a) burden. Only once
the expert's importance is established can the court
determine the appropriate scope of its Daubert
analysis. See Messner, 669 F.3d at 814 (observing
that Daubert hearing only necessary where challenged
expert opinion was “critical” to motion for class
where a challenging party establishes the importance of
expert evidence relative to a Rule 23(a) requirement, the
contours of Federal Rule of Evidence 702 and typical,
pre-trial Daubert practice are not entirely