Southern District of West Virginia Finds Limited Daubert Analysis Appropriate at Class Certification Stage

Federal Rule of Evidence 702 states that

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Clearly, this Rule and the accompanying Daubert test apply to determine whether an expert witness can testify at trial. But to what extent does Daubert apply at the class certification stage of a class action lawsuit? That was the question addressed by the Unites States District Court for the Southern District of West Virginia in its recent opinion in Baxley v. Jividen, 2020 WL 7063596 (S.D.W.Va. 2020).

In Baxley, plaintiffs are seeking to certify a class of pretrial detainees and convicted inmates in West Virginia Regional Jails. In response, arguing that the court shouldn’t certify the class, the defendants sought to use Dr. Lawrence H. Mendel, affidavit.

Dr. Mendel’s affidavit is used by the Defendant to support the following claims: (1) the class defined by the Plaintiffs is too broad; (2) the jails’ “suicide prevention process functions effectively”; (3) WVDCR’s policies are “well-written, comprehensive, and similar to policies used across the U.S.”; (4) WVDCR appropriately screens inmates for disabilities; (5) the jails meet NCCHC accreditation standards, (6) the medical intake process at WVDCR is sufficient and meets correctional standards; (7) the medication verification process in the jails is not inadequate; (8) the Defendant’s jails appropriately respond to sick calls; and (9) there are “no ADA issues” in the regional jails.

According to the court,

Typically, a Daubert analysis is appropriate when the expert will be testifying at trial or an evidentiary hearing. The level of analysis required at the class certification stage, however, is not so clear. As the Defendant notes, some courts have found that full Daubert analysis is appropriate at this stage, while others have conducted a more limited analysis. See, e.g., Sabata v. Neb. Dep’t of Corr. Servs., No. 4:17CV3107, 2019 WL 3975373, at *3 (D. Neb. Aug. 22, 2019), objections overruled, No. 4:17-CV-3107, — F.R.D. –, 2020 WL 3047479 (D. Neb. June 8, 2020) (“[A]t the class certification stage, the court should conduct a ‘focused’ Daubert analysis that ‘scrutinize[s] the reliability of the expert testimony in light of the criteria for class certification and the current state of the evidence.’”) (quoting In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011)); Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 812-13 (7th Cir. 2012) (finding that Daubert analysis was necessary at class certification stage when “expert testimony is in fact critical to class certification”); Rhodes v. E.I. du Pont de Nemours & Co., No. CIV.A. 6:06-CV-00530, 2008 WL 2400944 (S.D.W.Va. June 11, 2008) (finding that while a Daubert inquiry is appropriate at this stage, it “must be limited to consideration of the expert’s opinion which is offered to support the plaintiff’s class certification motion”).

The court then decided to a more limited Daubert analysis and ruled as follows

Given the fact that both Plaintiffs and the Defendant rely on much more than expert testimony in this case, the Court finds this individual affidavit is not so “critical” to the Court’s certification decision that a full Daubert analysis is required at this juncture. Dr. Mendel’s curriculum vitae shows extensive expertise in the area of correctional medicine and he adequately states the information he based his analysis and conclusions upon….

Moreover, it is the Court, and not a jury, that is reviewing the evidence at this stage. The Court can evaluate the appropriateness of Dr. Mendel’s alleged legal conclusions, consider the disputed facts presented by both the Plaintiffs and Dr. Mendel, and weigh the certainty of Dr. Mendel’s conclusions….Any concerns the Plaintiffs may have about the factual foundations for Dr. Mendel’s opinions go to the weight or credibility of his opinions. Plaintiffs are free, as they have done, to provide evidence to challenge his credibility….Accordingly, the Court finds that the expert opinion of Dr. Mendel is sufficiently reliable and need not be stricken at this time.

-CM