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Cone v. Vortens, Inc.

United States District Court, E.D. Texas, Sherman Division

September 17, 2019




         Before 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.

         I. BACKGROUND

         This 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.


         Rule 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 Cir. 1997).

         In the 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.

         In 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).

         III. ANALYSIS

         Dr. 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 id.

         “Issues 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 § 7:24.

         While 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 Turner:

[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. ...

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