This Article discusses whether and to what extent a Daubert analysis, which examines the admissibility of expert testimony, should be performed during class certification proceedings. In Daubert, the United States Supreme Court held that in a merits phase of litigation, the Federal Rules of Evidence govern the admissibility of scientific evidence based on expert testimony; yet, the Court did not articulate whether that standard also applies during class certification. After explaining the Court’s ruling in Daubert, this Article examines the subsequent circuit split and differing interpretations of whether and to what extent Daubert should be applied at the class certification stage, with some circuits reasoning that a full Daubert analysis is necessary due to the significance of class certification and others preferring a more flexible approach that allows courts the discretion to apply a limited Daubert analysis when appropriate.
Proponents of performing a full Daubert analysis during class certification argue that if anything less than a full Daubert analysis is applied, a district court will more readily certify a putative class, which, in turn, will lead to increased settlement pressure, Proponents of a tailored Daubert analysis argue that such a system is much more appropriate when a court bifurcates discovery—a process that greatly increases judicial efficiency. In response to this circuit split, the Author proposes that courts utilize a sliding Daubert scale, with the type of case at issue determining the extent of the Daubert analysis. Using three hypotheticals of different types of cases, the Author illustrates how such a sliding scale would allow a court to apply the level of analysis most appropriate for the case at hand and thereby mitigate settlement pressure in appropriate circumstances, increase settlement pressure where necessary, decrease the chance of desertification on interlocutory appeal, and promote efficiency devices during certification.