The Supreme Court’s NOT Top 10: October Term 2016 Cert Petitions the Justices Should Have Granted

supreme courtIn a year when the U.S. Supreme Court heard six(!) cases where Washington Legal Foundation supported grants of certiorari with  amicus curiae briefs (leading all non-profit groups “by quite a large margin,” according to EmpiricalSCOTUS.com), it seems a bit churlish to pick on the Court for rejecting a number of important cases.  Then again, the entire point of this feature is to identify such oversights.  Even though the Court granted some 43 percent of the cases in which WLF supported cert, it still overlooked a host of worthwhile appeals, once again taking on an exceedingly light docket.

One thing stands out in this fourth annual retrospective look at last term’s disappointeds docket: namely, how many so-called business cases the Court granted.  Although many commentators have called this a “boring” term, court watchers who value clarity and certainty couldn’t help but appreciate the Court’s resolving multiple controversies that, while minor in the grand scheme of things, have nonetheless vexed litigants and divided lower courts.  Perhaps because the Court was down a justice and evenly divided for over a year, it took the opportunity to grant cert to cases on lower-profile subjects that might get passed over when meatier fare is desired.  If it did so in a quest for consensus, the happy results are the silver lining of the Court’s unusually long interregnum. Continue reading “The Supreme Court’s NOT Top 10: October Term 2016 Cert Petitions the Justices Should Have Granted”

Uncommon Defects and Unreliable Methods: U.S. District Court Effectively Applies ‘Daubert’ to Deny Class Certification

Featured Expert Column–Judicial Gatekeeping of Expert Evidence

Tager_09181Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Carl J. Summers, an Associate with Mayer Brown LLP.

In many civil lawsuits, parties introduce expert testimony to help the jury decide questions of negligence or causation. In class actions, expert testimony is also often employed to help the court answer questions under Federal Rule of Civil Procedure 23, such as whether a class is ascertainable or to develop a formula for awarding damages on a class-wide basis. In Kljajic v. Whirlpool Corp., the United States District Court for the Northern District of Illinois (St. Eve, J.) addressed the intersection of Daubert and Rule 23’s commonality and predominance requirements.

Under Rule 23(a), a plaintiff must show that there are questions of law or fact common to the class. And plaintiffs who seek certification under Rule 23(b)(3) must satisfy the more demanding predominance requirement, which looks to whether the common issues in the case are more important than the individualized issues. These two requirements are similar, and expert testimony can shed light on whether a case can be maintained as a class action. Continue reading “Uncommon Defects and Unreliable Methods: U.S. District Court Effectively Applies ‘Daubert’ to Deny Class Certification”