Expert Testimony Failed to ‘Glue’ Class Action Plaintiffs Together

By IMS ExpertServices

On Monday the Supreme Court changed the playing field for class actions when it determined that Wal-Mart Stores Inc. v. Dukes et al. was improperly certified as a class action.

The case involved approximately 1.5 million current and former female employees of Wal-Mart who allege that the stores operate under a company-wide culture of discrimination against women. Although the Supreme Court acknowledges that many of these women probably did experience discrimination, they stated that it is improper to lump them all together into a class action.

“The crux of this case is commonality—the rule requiring a plaintiff to show that ‘there are questions of law or fact common to the class.’” wrote Justice Antonin Scalia in the majority opinion.

In Wal-Mart, the plaintiffs brought forward a discrimination case, which is ultimately based on the employer’s decisions.   As the court states, “Here respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.”

Expert Evidence

The evidence presented by the plaintiffs included the testimony of a sociological expert, Dr. William Bielby. The expert opined that Wal-Mart has a corporate culture that makes it susceptible to gender bias. As he revealed in deposition, his analysis could not, however, determine if “0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.”

Bielby’s testimony was the only evidence the plaintiffs had of a “general policy of discrimination” at Wal-Mart when it was classified as a class action. The lack of specific scientific data made his testimony negligible and brought up questions on the admissibility of his testimony under Daubert standards.

For this case, it was concluded by the District Court that Daubert did not apply at the certification stage of class action proceedings. The courts are at odds over the use of Daubert at the class certification stage and the Supreme Court did not make a decision one way or the other in this ruling.

Fact-Finding Comes First

With the requirements for class action certification presented in this case, members of a potential class must prove the “glue” holding their claims together. As the New York Times wrote, “In this change, the court has made fact-finding a major part of certification, increasing the cost and the stakes of starting a class action.”

The Supreme Court determined that Bielby’s testimony should not have been enough to certify this class action.  In the future, expert testimony at this early stage will need to meet all the standards and expectations of testimony presented at later stages in order to successfully certify a case as a class action.

Tell us: How do you think this will affect class action certifications going forward?

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IMS ExpertServices delivers consultative trial and expert services for the most influential global firms. Over nearly three decades and through more than 20,000 cases and 1,000 trials, clients have trusted IMS to equip them with the perspective and tools they need to help their clients succeed. With offices in the San Francisco Bay Area, Dallas, Pensacola, and New York, the company provides trial strategy consulting, jury consulting, trial graphics consulting, trial presentation consulting, and expert witness recruitment and management. IMS has earned nine consecutive rankings on the Inc. 5000 list, won recognition by The National Law Journal in six categories of its “Best of 2020” awards, by Corporate Counsel Magazine as winner in eight categories of its “Best of 2019” awards, and as “Go-To Thought Leader” for two consecutive years by The National Law Review. More about IMS ExpertServices can be found at: www.expertservices.com.

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