United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
KIMBERLY C. PRIEST JOHNSON UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant's Supplement to its Objections and
Motion to Strike Declaration of Shawn Capser, Ph.D. (the
“Motion”) (Dkt. 214). Plaintiffs filed a response
on February 6, 2019 (Dkt. 217). Defendants filed a reply on
February 13, 2019 (Dkt. 218). As set forth below, the Court
finds the Motion (Dkt. 214) is DENIED.
action arises from alleged manufacturing and/or marketing
defects in certain ceramic Vortens toilet tanks.
Plaintiffs' Second Amended Complaint and Class Action
(Dkt. 74) is the operative complaint herein.
702 of the Federal Rules of Evidence governs the
admissibility of expert testimony. While the district court
must act as a gatekeeper to exclude all unreliable expert
testimony, “the rejection of expert testimony is the
exception rather than the rule.” Fed.R.Evid. 702
advisory committee's notes (2000) (citing Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); Kumho
Tire Co. v. Carmichael, 526 U.S. 137, (1999)). Expert
testimony is admissible only if the proponent demonstrates
that: (1) the expert is qualified; (2) the evidence is
relevant to the case; and (3) the evidence is reliable.
Watkins v. Telsmith, Inc., 121 F.3d 984, 988-89 (5th
Motion, Defendant challenges the Declaration of Shawn Capser,
Ph.D., SSMBB (the “Declaration”) (Dkt. 214-2). To
be reliable, and therefore admissible under Rule 702 of the
Federal Rules of Evidence, expert testimony as to a
scientific, technical, or other specialized area must: (1)
assist the trier of fact to understand the evidence or to
determine a fact in issue; (2) be based upon sufficient facts
or data; (3) be the product of reliable principles and
methods; and (4) have reliably applied the principles and
methods to the facts. Fed.R.Evid. 702. In evaluating the
scientific validity or reliability of expert testimony, the
Court in Daubert noted some non-exclusive factors
for the district court to consider: (1) whether the theory or
technique has been tested; (2) whether the theory or
technique has been subjected to peer review and publication;
(3) the known or potential rate of error of the method used;
(4) the existence and maintenance of standards and controls
in the methodology; and (5) whether the theory or method has
been generally accepted by the scientific community.
Daubert, 509 U.S. at 593-94. "But, as the Court
stated in Daubert, the test of reliability is
“‘flexible,' and the Daubert factors
neither necessarily nor exclusively apply to all experts or
in every case. Rather, the law grants a district court the
same broad latitude when it decides how to determine
reliability as it enjoys in respect to its ultimate
reliability determination.” Kumho Tire, 526
U.S. at 151.
determining the admissibility of expert testimony, the trial
court is not to consider the conclusions generated by an
expert witness, but only the principles and methodology used
to reach those conclusions. See Daubert, 509 U.S. at
595. “When the principles and methodology are
sufficient to allow the expert opinion to be presented to the
jury, the party challenging the testimony must resort to
‘vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof'
as the means to attack ‘shaky but admissible
evidence.'” Burton v. Wyeth-Ayerst Labs. Div.
of American Home Prods. Corp., 513 F.Supp.2d 708, 710
(N.D. Tex. 2007) (citing Daubert, 509 U.S. at 596).
Capser, Plaintiffs' designated statistics expert, has
provided preliminary reports and the Declaration at issue.
See Dkt. 106. Plaintiffs designated Dr. Capser on
January 16, 2018; Dr. Capser was deposed on March 5, 2018.
See Dkt. 133 at 1. After Plaintiffs submitted the
Declaration, Dr. Capser was deposed again on January 10,
2019. See Dkt. 214 at 1. Defendant seeks to exclude
the Declaration in its entirety due to “inconsistencies
and errors.” See Dkt. 214 at 2. Plaintiffs
respond that the issues identified by Defendant go to the
weight, not the admissibility of modeling examples.
See Dkt. 217 at 3. Plaintiffs further argue Dr.
Capser's opinions meet the Daubert standard for
class certification consideration and that none of the
objections warrant striking of the Declaration. See
arising out of the use of expert witnesses at the class
certification stage have beguiled the federal courts[.] . . .
The problem, if problem it be, is one of a mismatch between
evidence and timing, with ultimate merits evidence being
weighed before the conclusion of the discovery phase of the
lawsuit.” 3 Newberg on Class Actions § 7:24 (5th
ed.). In Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338 (2011), the Supreme Court made clear that courts
could-and indeed should-look at the merits of certification.
Id. at 350-51. (Concluding that the rigorous
analysis required to determine the certification question
will necessarily “entail some overlap with the merits
of the plaintiff's underlying claim.”). Following
Wal-Mart, the trend has been that courts will apply
some form of Daubert analysis at class
certification. The split is whether the approach should be
limited or whether a full and conclusive Daubert
analysis, including an assessment of the expert's
persuasiveness, is required. 3 Newberg on Class Actions
the Fifth Circuit has not explicitly decided this question
since Wal-Mart, the courts in this circuit appear to
follow a limited Daubert approach. See,
e.g., Steward v. Janek, 315 F.R.D. 472, 478
(W.D. Tex. 2016); Ancar v. Murphy Oil, U.S.A, Inc.,
2007 WL 3270763, at *1 (E.D. La. 2007) (“A full review
under Daubert is not suitable to class certification
proceedings.”); Turner v. Murphy Oil USA,
Inc., 2006 WL 91364 (E.D. La. 2006) (concluding that
only a limited Daubert review was appropriate at the
class certification stage). As the Court explained in
[A] district court may not weigh conflicting expert evidence
or engage in a statistical dueling of experts. The question
for the district court at the class certification stage is
whether the plaintiffs' expert evidence is sufficient to
demonstrate common questions of fact warranting certification
of the proposed class, not whether the evidence will
ultimately be persuasive.
Turner v. Murphy Oil, 2006 WL 91364, at *3 (citing
In re Visa Check/Master Money AntitrustLitig., 280 F.3d 124, 135 (2d Cir. 2001) (internal
quotation marks omitted)). In other words, with respect to
expert evidence at the class certification stage, “the
Federal Rules of Evidence apply, albeit in a relaxed
fashion.” Anderson Living Trust v. WPX Energy
Prod., LLC, 306 F.R.D. ...