United States District Court, District of Columbia
In re RAIL FREIGHT FUEL SURCHARGE ANTITRUST LITIGATION MDL Docket No. 1869 This document relates to: ALL DIRECT PURCHASER CASES
MEMORANDUM OPINION AND ORDER
L. FRIEDMAN, District Judge.
matter is before the Court on Plaintiffs' Motion to
Exclude Opinions Offered by Dr. Joseph Kalt at the class
certification hearing, Dkt. 774. Plaintiffs argue that the
Court must do an analysis of Dr. Kalt's report and
proffered testimony under Rule 702 of the Federal Rules
of Evidence and Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), and make a Daubert
determination prior to the class certification hearing. They
maintain that the Court should refuse to consider Dr.
Kalt's opinions on class certification under the
standards of Rule 702 and Daubert.
respond that under the case law, no Daubert hearing is
required prior to class certification, that plaintiffs'
motion is a blatant misuse of the Daubert inquiry, and that
none of plaintiffs' arguments can fairly be described as
focusing "solely on principles and methodology, [rather
than] on the conclusions that they generate."
Defendants' Opposition at 1 (quoting Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. at 595)
[Dkt. 777]. Defendants maintain that the proper forum for
considering the reliability of Dr. Kalt's methodology and
the validity of his opinions is at the class certification
hearing itself. Id. at 12. The Court indicated at
the status conference on May 3, 2016 that it was inclined to
agree with defendants' position on this matter. See
5/3/16 Tr. at 21-22 [Dkt. 805]. Having now reviewed the
parties' papers, the Court will deny plaintiffs'
motion to exclude Dr. Kalt's opinions under Rule 702 and
Daubert, the Court is to act as a "gatekeeper" with
respect to the issue of the admissibility of expert testimony
and evidence, primarily so that the trier of fact will not be
exposed to unreliable or irrelevant testimony about
scientific, technical, or other esoteric matters. Where the
factfinder is the court and not a jury, however, the question
is for whom the Court is supposed to be keeping the gate.
"There is less need for the gatekeeper to keep the gate
when the gatekeeper is keeping the gate only for
himself." United States v. Brown, 415 F.3d
1257, 1269 (11th Cir. 2005); see also Jacobsen v. Oliver, No.
01-1810, 2007 WL 5527513, at *1 (D.D.C. Nov. 2, 2007); F.T.C.
v. Whole Foods Mkt., Inc., No. 07-1021, 2007 WL 7632283, at
*2 (D.D.C. July 27, 2007). As Judge Diane Wood has explained
for the Seventh Circuit:
Where the gatekeeper and the factfinder are one and the same
- that is, the judge - the need to make [Daubert and Rule
702] decisions prior to hearing the testimony is lessened.
That is not to say that the scientific reliability
requirement is lessened in such situations; the point is only
that the court can hear the evidence and make its reliability
determination during, rather than in advance of, trial. Thus,
where the factfinder and the gatekeeper are the same, the
court does not err in admitting the evidence subject to the
ability later to exclude it or disregard it if it turns out
not to meet the standard of reliability established by Rule
In re Salem, 465 F.3d 767, 777 (7th Cir. 2006)
(internal citation omitted); see also Gibbs v.
Gibbs, 210 F.3d 491, 500 (5th Cir. 2000).
gatekeeping analysis applies equally to class certification
hearings. The Supreme Court in dictum has expressed its
"doubt" that "Daubert did not apply to expert
testimony at the certification stage of class action
proceedings, " but it has not squarely decided the
question. See Wal-Mart Stores, Inc. v. Dukes, 131
S.Ct. 2541, 2554 (2011). No court has held that district
courts must hold a separate Daubert hearing in advance of a
class certification hearing, or that district courts must
bifurcate the class certification hearing between Daubert and
Rule 23 class certification analysis. It therefore is
appropriate for courts to hear the evidence and argument
regarding Daubert during the class certification proceeding.
Court recognizes that the Daubert and Rule 23 standards are
different and that those differences inform how the Court
will structure its analysis and opinion on class
certification. While the D.C. Circuit has not opined on this
issue, Judge Anthony Scirica of the Third Circuit has
recently explained that when the reliability of an
expert's methodology is being challenged, a district
court must "conduct a Daubert inquiry before assessing
whether the requirements of Rule 23 have been met."
In re Blood Reagents Antitrust Litig., 783 F.3d 183,
188 (3d Cir. 2015). This is because "[e]xpert testimony
that is insufficiently reliable to satisfy the Daubert
standard cannot prove that the Rule 23(a) prerequisites have
been met in fact, nor can it establish through evidentiary
proof that Rule 23(b) is satisfied." Id. at 187
(internal quotation marks omitted); see also Messner v.
Northshore Univ. HealthSystem, 669 F.3d 802, 812 (7th
Cir. 2012) ("[A] district court must make a conclusive
ruling on any challenge to that expert's qualifications
or submissions [under Daubert] before it may rule on a motion
for class certification." (citing Am. Honda Motor
Co. v. Allen, 600 F.3d 813, 815 (7th Cir. 2010))). In
its opinion on class certification, the Court therefore will
first address the relevance of all expert opinions and the
reliability of the experts' methodology under Daubert and
Rule 702, and then conduct the "rigorous analysis"
of all of the relevant evidence - including expert testimony
that meets the Daubert and Rule 702 standards - that is
critical to proving the class certification requirements
under Rules 23(a) and 23(b) of the Federal Rules of Civil
Procedure. See In re Blood Reagents Antitrust
Litig., 783 F.3d at 187.
having been said, there is no need for the Court to address
each of the six separate bases asserted by plaintiffs for the
exclusion of Dr. Kalt's opinions. Suffice it to say that
most, if not all of them, are not valid Daubert arguments at
all because they do not challenge the principles or
methodologies that Dr. Kalt employed. Rather, they are
attacks on Dr. Kalt's theories or his responses to the
opinions, regression analyses, and models of plaintiffs'
experts. The Court will determine at the class certification
hearing - consistent with Daubert and Rule 702 - the
relevance, reliability, admissibility, and weight it should
afford the reports, testimony, and opinions of all experts.
of these reasons, Plaintiffs' Motion to Exclude Opinions
Offered by ...