In the context of antitrust claims involving a cable service provider, the U.S. Supreme Court has decided to review “[w]hether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” Comcast Corp. v. Behrend, No. 11-864 (U.S., petition for certiorari granted June 25, 2012). The Third Circuit Court of Appeals affirmed the district court’s decision to certify the class, agreeing that “the class has met its burden to demonstrate that the element of antitrust impact is capable of proof at trial through evidence that is common to the class rather than individual to its members, and that there is a common methodology available to measure and quantify damages on a class-wide basis.”
A dissenting Third Circuit judge parted ways with the majority “entirely … when it comes to class-wide proof of damages.” According to this jurist, the expert testimony “is incapable of identifying any damages caused by reduced overbuilding in the Philadelphia DMA [designated market area]. Consequently, his testimony is irrelevant and should be inadmissible at trial, pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), as lacking fit. Thus, it cannot constitute common evidence of damages.”
