The Supreme Court’s decision regarding expert testimony in Comcast v. Behrend is having an impact on cases where certification has already been granted. In the price-fixing litigation against a Johnson & Johnson blood test unit, the Third Circuit vacated class certification citing the requirement for greater scrutiny of expert witnesses during class certification fights.
U.S. Circuit Judge Anthony J. Scirica wrote for the panel. “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.”
While survey evidence is common in most Lanham Act cases, it is increasing appearing in class certification disputes. On the plaintiff’s side, surveys can be used to show how damages can be calculated on a class-wide basis. On the defendant’s side, surveys can be used to show the diversity of the putative class or the lack of typicality of the allegations of the named plaintiff(s).
Whether for the plaintiff or the defendant, however, survey evidence must conform to the high standards required of scientific evidence in order to survive a Daubert challenge.