As we discussed back in 2013, the United States Supreme Court’s decision in Comcast left no doubt that any damages model offered up by the proponent of class certification must “be consistent with its liability case.” This ruling put some teeth into the damages element in the class certification context, and strongly implied that the requirements ofDaubert or Frye apply at the class certification stage. This month, the Third Circuit joined the Seventh, Eighth, and Ninth Circuits have all agreed that the Daubert admissibility standard must be taken into account when assessing admissibility of expert testimony at the class certification stage.
Now, of course, this is only useful if one’s jurisdiction actually sets some parameters on the admissibility of expert testimony. Missouri courts, however, follow Mo. Rev. Stat. 490.065, which is somewhat general in its standards, and does not follow either Daubertor Frye in civil matters, relying instead on the discretion of the court once the basic foundational standards of the statute have been satisfied. See e.g., State v. Robertson, 328 S.W.2d 745, 752, n.2 (W.D. 2010).
House Bill 697, however, looks to augment Section 490.065 by explicitly applying theDaubert admissibility standards to civil actions (excepting juvenile and family law actions). Should this measure be passed, it would go a long way toward setting some concrete standards for the admissibility of expert testimony. Combined with Comcast, this measure could prove a useful tool in excluding the type of junk science and ipse dixit damages models used in the past to justify the certification of expansive classes. (Full Disclosure, our colleague Kevin Corlew, who represents the 14th District, is the sponsor of this bill).