In re EpiPen Epinephrine Injection, USP Marketing, Sales Practices and Antitrust Litigation

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge.

         This 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^[1] 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.

         I. Procedural History and Arguments on Motion to Amend

          In 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.

         Plaintiffs 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.

         II. Analysis

         Resolving 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.

         A. Role of Daubert at Class Certification Stage

         After 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 certification stage.

         The 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”).

         But, 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.

         Federal 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.” Id.

         Expert 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 certification).

         Even 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 ...