Which came first, Daubert or class certification? 7th Circuit says Daubert.

by Kirsten E. Small

Class action practitioners will want to take a look at American Honda Motor Co. v. Allen (No. 09-8051), decided by the Seventh Circuit last week.

Richard Allen sued Honda on behalf of a putative class, claiming that a design defect in the company's Gold Wing GL1800 motorcycle made it, and I am not kidding here, too wobbly. Allen's theory was supported by Mark Ezra, whom Allen offered as an expert in motorcycle engineering. Honda challenged Ezra's opinion under Daubert, arguing that his opinion was deficient in a number of respects. Honda further argued that the admissibility of Ezra's opinion had to be decided before class certification because absent the opinion, Allen could not establish that common issues predominated, as required by Rule 23(b)(3).

The district court agreed with Honda, sort of. It concluded that Ezra's opinion was shaky (pun intended), but nevertheless admitted it and certified two classes of consumers who had purchased GL1800s.

The Seventh Circuit accepted Honda's petition for review and reversed in a per curiam opinion that reads very much like something Judge Posner would write. The heart of the ruling is as follows: "[W]hen an expert's report or testimony is critical to class certification ... a district court must conclusively rule on any challenge to the experts qualifications or submissions prior to ruling on a class certification motion." Slip op. at 6. The court did not address when the Daubert analysis might be "critical to class certification," but presumably that is a common-sense determination.

It will be interesting to see what kind of play this decision gets in other design defect cases, particularly the glut of Toyota sudden acceleration claims.