Tips for Selecting the Best Experts for Class Action Lawsuits

Anjelica Cappellino, J.D.

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— Updated on June 3, 2020

Tips for Selecting the Best Experts for Class Action Lawsuits

Class action lawsuits are an important component of the legal system because they give large groups of individuals, who may otherwise be unable or unwilling to file personal lawsuits, the opportunity to adjudicate legal claims in an efficient and fair way.

Class action lawsuits can vary as widely as individual lawsuits, ranging in issues from product liability cases to antitrust claims. Like any other lawsuits, class actions may require experts to assist with substantive facts at issue that involve scientific or specialized knowledge. But in addition to these kinds of witnesses, experts that can navigate the procedural complexities unique to class actions are also critical. There are stringent legal requirements that distinguish a regular lawsuit from a class action. Experts can help ensure that such requirements are met.

Determining What Needs to be Proven for Class Certification

The first step in any potential class action is to become certified as a class. If the court denies plaintiffs’ motion to certify as a class, it can be fatal to the lawsuit. The only other option would be for each plaintiff to individually sue the defendant, which may not be feasible. As such, plaintiffs should enlist all the help they can get in order to establish class certification, including the assistance of experts. But first, what exactly needs to be proven?

Rule 23(a) of the Federal Rules of Civil Procedure governs the requirements for class actions, and states have adopted similar rules. Per Rule 23(a), plaintiffs must prove that:

  1. The class is so numerous that joinder of all members is impracticable
  2. There are questions of law or fact common to the class
  3. The claims or defenses of the representative parties are typical of the claims or defenses of the class, and
  4. The representative parties will fairly and adequately protect the interests of the class.

The plaintiff bears the burden of proving these prerequisites by a preponderance of the evidence, with the United States Supreme Court noting that its rigorous analysis may frequently overlap with an inquiry into the merits of the case (See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). Considering that an inquiry into the actual merits “cannot be helped,” it is even more of a reason to aggressively prove the requirements for class certification, with the help of an expert.

Establishing the Number of Class Members

There is no set number of plaintiffs needed for a class action, though federal courts (and many state courts as well) have found numerosity where there are over 40 plaintiffs. Traditionally, factors such as the geographic location and proximity of each plaintiff would be considered to determine whether joinder would be practical. Although individual class members need not be identified, the plaintiffs’ attorney needs to show that there is a feasible method for objectively identifying the affected class. For example, in a products liability lawsuit, the consumers affected by the allegedly defective product can be found by investigating the distribution chain from wholesale to retail purchases. When a potential class action could involve thousands of individuals, an expert in statistical analysis may be needed to track down and record the class members to ensure that the estimated number of plaintiffs is accurate and that there exists an accurate means of identifying them.

Common Questions of Law or Fact and Typicality of Claims

The existence of a common question of law or fact among the potential class members used to be satisfied by a pleading raising such issues. However, after the United States Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, plaintiffs cannot merely recite a list of common questions. Rather, the claims “must depend upon a common contention of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” In other words, proving the prerequisite of commonality unavoidably creates a need for the court to delve into the merits of the case.

If the issues of fact involve anything of scientific or otherwise specialized knowledge, expert testimony, or consulting with an expert in the field will be necessary. Not only can experts explain the facts at issue, but they can also potentially establish that the issue applies to all potential class members. Likewise, an expert in the particular field can also establish typicality, that is, that there is a sufficient connection between the claims alleged by the class representative and the class as well.

Ensuring the Interests of the Class are Protected

Lastly, a class representative must demonstrate that the interests of the class members will be fairly and adequately represented. The interests of the class representatives and the class members should not conflict. Likewise, the interests between class members should coincide. This sometimes involves an inquiry into the remedies sought. At a class action trial, damages experts are undoubtedly needed to calculate the appropriate restitution to the class. But they may also be of assistance in the certification stage as well, to establish that the remedies sought by the class members are all aligned and do not pose a conflict.

Overall, class action lawsuits are of such a complex nature that expert assistance is necessary at all stages of litigation. However, it is of particular importance to obtain the appropriate expert opinions when attempting to certify a class.

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