Professor Mary Kay KaneEditor’s note: This post is the second in a series of posts from the Class Action Lawsuit Defense Blog’s interview with Mary Kay Kane, former Dean and Chancellor and current Emeritus Professor of Law at the University of California’s Hastings College of the Law. Professor Kane is the author of the Nutshell on Civil Procedure, the co-author of the Hornbook on Civil Procedure, the Hornbook on the Law of Federal Courts, as well as the second and third editions of the treatise Federal Practice and Procedure. Professor Kane is also the author of “The Supreme Court’s Most Recent Class Action Jurisprudence: Gazing Into a Crystal Ball,” which will be published in the upcoming issue of the Lewis & Clark Law Review.  The views expressed herein are hers alone.

Which class action issue do you think will be the most litigsted in the coming years?

I think the class action issue that looms largest now is the way in which the merits determination has moved up into the class certification context.  There is now an expensive battle of the experts at the class certification stage, very early, before discovery.  Not only does that move up the Daubert hearing, but even if neither of the sides’ experts’ opinions is thrown out as junk science, the court will have to determine by a preponderance of the evidence which expert is more credible—and that is what a jury would be doing if the case ever went to trial.  If taken to its logical extreme, there will be cases that never get past class certification because the judge will have made a determination of the credibility of dueling experts.  This issue is implicit in Wal-Mart, but it really started with the Third Circuit’s Hydrogen Peroxide case and now other courts are dealing with it.  In Wal-Mart, there were not dueling experts, but Justice Scalia basically discarded the plaintiff’s expert opinions as insufficient evidence that there were core common issues that would be triable.  So now judges need to decide early on, before they really know anything about the case, whether the experts’ testimony sounds like it will be able to prove the case.

That’s why I think it’s going to have a major impact—I don’t know if there is an alternative.  The Third Circuit came down with a post-Wal-Mart decision in Gates v. Rohm & Haas Co. that was a toxic tort pollution case brought by homeowners in the affected neighborhood.  The court asked how the plaintiffs could prove that the pollution was identical to all homes, citing Wal-Mart for the need to show that at the class certification stage.  It used to be that courts would allow a case like this to go forward at least as to liability—damages would be individualized.  It’s a question of balance.  There were numerous decisions  that didn’t even look at the issues very seriously at all before saying: go ahead and certify—which just means start talking settlement—and we’ll decide later if we have to de-certify.  They were wrong.  I think it was correct to say you have to look at the merits to see what will have to be proven at trial.  Eisen was overread to say you couldn’t even touch the merits, and the more recent cases that look at what they’ll have to prove and whether there are common questions are correct.  But there should be a median place in terms of how seriously you look at the experts at this early stage.

When you piece together where the Supreme Court is going, they’ve clearly raised the bar in terms of what you need to demonstrate for access to the courts.  But as a caveat to that, I am reluctant to say that this shows that the Court is pro-defendant and anti-plaintiff, because they have come down with decisions that are clearly pro-plaintiff, even in the class action area, and even in this last year. If you think about it, Shady Grove says: I don’t care that the New York legislature wants to protect defendants from penalty damages.  There’s nothing in Rule 23 stopping consumers from pursuing these damages.  The Court isn’t going all in one direction.  It seems to be more driven by what the individual issues are.