Apple Inc. won a ruling setting aside class certification in a California suit over allegedly defective power buttons on certain smartphones.
The wrong standard was used for assessing the reliability of expert evidence at the class certification stage, the California Court of Appeal for the Fourth Appellate District said Jan. 29 in an issue not previously considered in the state.
California trial courts may consider only “admissible” expert opinion evidence when weighing class certification, the appeals court said.
And the correct standard for ensuring that the evidence is “reasonable, reliable, and logical” is the one articulated by the state Supreme Court in 2012 in Sargon Enters. Inc. v. Univ. of S. Cal., a breach of contract suit.
Sargon requires California trial courts to consider the materials and methodologies of proposed expert opinion evidence, and to exclude opinions that are based on “a leap of logic or conjecture” or on theories that don’t provide a reasonable basis for the opinion.
The suit alleges Apple sold some iPhone 4, 4S, and 5 smartphones with a power button that is prone to failure.
After reviewing the expert evidence in the case, the three-judge panel ruled unanimously that if the trial court had undertaken the correct analysis, “there is a reasonable probability it would have excluded substantial portions of plaintiffs’ expert opinion evidence and declined to certify the proposed classes.”
The Sargon standards are similar to those governing the admissibility of expert testimony in federal courts. Those standards, set forth by the U.S. Supreme Court in Daubert v. Merrell Dow Pharms., have generally been found to apply in federal cases at the class certification stage, the appeals court said.
Although class certification is a procedural device, and not a determination on the merits, “it has profound consequences for the trial court’s management of the litigation and the rights of the parties,” Judge Terry B. O’Rourke said.
“The corrosive effects of improper expert opinion testimony may be felt with substantial force at class certification, just as at summary judgment or at trial,” he said. “The trial court’s gatekeeping role serves a similar salutary purpose in each of these contexts.”
Professor David L. Faigman, an authority on expert evidence, told Bloomberg Law that the Apple ruling illustrates a “general confusion” among California courts regarding the proper standard to be applied to expert testimony.
It was “quite surprising” to have the appeal court state that Sargon alone describes the California standard for the admissibility of expert testimony, said Faigman, the chancellor and dean at the University of California Hastings College of the Law.
Although there are plenty of examples in which California courts have employed Sargon in its application of the California Evidence Code, there are possibly just as many examples where courts have not, including decisions from the California Supreme Court, Faigman said, including People v. Lucas, 333 P.3d 587 (Cal. 2014).
Many California courts continue to use the “general acceptance” test for science-based expert testimony; while other courts employ Sargon’s more Daubert-oriented test, which, on its face, applies to all expert testimony—scientific and non-scientific alike,” he said.
Faigman agreed that courts should review class-certification in regard to evidence that would be admissible under the Evidence Code.
But the standard should take into account the timing of the process involved.
“What empirical propositions can be amply demonstrated at an early stage like class certification might not be as deep or as broad as what can be demonstrated at summary judgment or at trial,” he said.
“Hence, although the standard is essentially the same, a court might give proponents more latitude in making their proof at earlier stages of the proceedings,” he said.
The ruling also offered valuable guidance to lower courts.
It said that where either party offers expert opinion at the class certification stage and that evidence provides the basis for arguments regarding numerosity, ascertainability, commonality, or superiority, a trial court must assess that evidence under Sargon.
It is up to trial judges to decide whether an evidentiary hearing is needed to resolve disputes, the court said.
Plaintiffs and defense attorneys were not immediately available for comment.
Plaintiffs’ attorneys include Doyle Lowther. Defense attorneys include O’Melveney & Myers.
The case is Apple, Inc. v. Superior Court of San Diego Cty. , 2018 BL 28568, Cal. Ct. App., 4th Dist., No. D072287, 1/29/18 .
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