One area that continues to cause confusion with respect to expert witnesses is the role (if any) of a Daubert analysis at the certification phase of a class action lawsuit. The confusion arises from the competing obligations imposed on district courts. On one hand, Rule 23(c)(1)(A) requires district courts to address certification questions "at an early practicable time," Fed. R. Civ. P. 23(c)(1)(C), which can occur early in, if not before, merits discovery in a case. On the other hand, "actual, not presumed, conformance with Rule 23(a) remains, however, indispensable" to a party's class certification motion. General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982). Thus district courts often find themselves confronted with class certification motions early in litigation that are premised on or opposed by expert opinion testimony that then becomes the subject of Daubert challenges.
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