9th Circuit: "evidentiary proof" in support of class action certification need not be "admissible evidence."

Jocelyn D. Larkin, Executive Director - The Impact Fund

Jocelyn D. Larkin, Executive Director - The Impact Fund

- but don't breathe a sigh of relief too quickly - Daubert still applies.

The Ninth Circuit recently ruled that evidence offered in support of class certification need not meet standards for admissibility at trial.  In a published opinionSali v. Corona Regional Medical Center, No 15-56460 (9th Cir. May 3, 2018), the panel reversed and remanded the district court’s determination that plaintiffs failed to satisfy typicality, adequacy, and predominance. 

The case, brought on behalf of registered nurses, challenged defendant’s rounding time and wage statement policies that were alleged to violate the California Labor Code.  The district court concluded that the plaintiffs failed to demonstrate typicality because, to prove the injuries of the two named plaintiffs, counsel offered the declaration of a paralegal who had reviewed and analyzed a sample of their time records and offered an Excel spreadsheet demonstrating that the rounding policy had resulted in an average daily loss of compensable time for the named plaintiffs.  When the defendant complained that the declaration failed to substantiate the authenticity of the time records used, the attorneys offered a reply declaration to fill this evidentiary gap.  Notably, the defendant did not contest the accuracy of the records or the analysis, only the failure to meet evidentiary formalities.  The district court ruled that the declaration was inadmissible and that new evidence could not be offered on reply, concluding that the named plaintiffs failed to satisfy their evidentiary burden of showing that their injuries were typical of the class.

The Ninth Circuit rejected this evidentiary formalism:

Although we have not squarely addressed the nature of the “evidentiary proof” a plaintiff must submit in support of class certification, we now hold that such proof need not be admissible evidence.

The panel recognized that other circuits have split on the issue but found the analysis of the Eighth Circuit in In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011), persuasive.  Quoting Zurn Pex, it reasoned “because a class certification decision ‘is far from a conclusive judgment on the merits of the case, it is ‘of necessity . . . not accompanied by the traditional rules and procedure applicable to civil trials.’”  The court recognized that the extent of discovery prior to class certification may not permit a full trial-worthy evidentiary presentation. 

If plaintiffs’ counsel were breathing a sigh of relief that they will no longer be plagued by massive Daubert motions challenging expert testimony at class certification, I don’t have good news here. 

Indeed, in evaluating challenged expert testimony in support of class certification, a district court should evaluate admissibility under the standard set forth in Daubert. . . . But admissibility must not be dispositive. Instead, an inquiry into the evidence’s ultimate admissibility should go to the weight that evidence is given at the class certification stage.

This formulation is familiar from the pre-Wal-Mart v. Dukes era and was sometimes referred to as “Daubert lite.”  While the Supreme Court decision in Dukes included dicta suggesting that Daubert would apply at class certification, Justice Scalia did not include any reasoning and the Ninth Circuit’s decision makes no mention of it.  The panel did recognize that the Fifth Circuit has squarely held that class certification evidence must be admissible and that the Third and Seventh Circuits seem to lean that way as well.  The Supreme Court has shown a proclivity for taking up class action issues in recent years and this one seems a likely candidate for future dockets.