In Re Blood Reagents Antitrust Litigation
91 Fed. R. Serv. 3d 693
3rd Cir.2015Background
- Plaintiffs are direct purchasers who sued Ortho‑Clinical Diagnostics (Ortho) and Immucor for allegedly conspiring to fix prices of traditional blood reagents from 2000 onward; Immucor settled and Ortho appealed class certification.
- The proposed class was: all direct purchasers of traditional blood reagents from Ortho and Immucor in the U.S. from Jan. 1, 2000 to present. The District Court certified the class.
- Plaintiffs relied heavily on expert economic models to show classwide antitrust impact and to estimate damages. Ortho repeatedly challenged the reliability of those models.
- The District Court applied this circuit’s earlier Behrend framing (that expert models "could evolve to become admissible evidence") and declined to exclude or fully resolve reliability challenges at certification.
- After the Supreme Court’s decision in Comcast clarified that a damages model must actually measure damages attributable to the alleged antitrust violation and be capable of classwide application, the Third Circuit held the District Court lacked the benefit of Comcast when it certified the class.
- The Third Circuit vacated and remanded, holding that when expert testimony is critical to satisfying Rule 23, the district court must resolve Daubert challenges (as needed) as part of the rigorous Rule 23 analysis before certifying a class.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 23 certification requires Daubert scrutiny of expert testimony critical to certification | Plaintiffs relied on experts to show predominance and argued reliability challenges could be deferred or addressed later | Ortho argued the District Court must resolve Daubert reliability challenges at certification because the experts are critical to proving predominance and damages | Held: When expert testimony is critical to Rule 23 requirements, the court must address Daubert challenges before certifying the class (vacated and remanded) |
| Whether Behrend’s “could evolve” approach suffices after Comcast | Plaintiffs argued Behrend’s more permissive standard was appropriate | Ortho argued Comcast overruled Behrend’s permissive language and requires a definitive showing that the damages model measures classwide damages attributable to the violation | Held: Behrend’s “could evolve” formulation did not survive Comcast; courts must ensure models actually can measure damages attributable to the alleged antitrust harm |
| Whether the District Court abused its discretion in certifying the class without resolving reliability disputes | Plaintiffs claimed the District Court adequately evaluated testimony and could weigh experts at certification | Ortho claimed the court abused its discretion by declining a full Daubert analysis and relying on Behrend | Held: Vacated certification because the District Court did not have the opportunity to apply Comcast and must, on remand, identify which reliability attacks matter to Rule 23 and conduct Daubert analysis if necessary |
| Scope of Daubert at certification: universal or focused | Plaintiffs implied Daubert inquiry could be limited or deferred | Ortho urged full scrutiny where testimony is critical to certification | Held: Daubert analysis is required only for expert testimony that is critical to establishing Rule 23 requirements; the inquiry should be focused on aspects relevant to certification |
Key Cases Cited
- Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (Court must assess admissibility and reliability of expert testimony)
- Comcast Corp. v. Behrend, 133 S. Ct. 1426 (a damages model must measure damages attributable to the alleged antitrust injury and be capable of classwide measurement)
- Behrend v. Comcast Corp., 655 F.3d 182 (3d Cir. 2011) (earlier Third Circuit treatment of expert models at certification)
- In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008) (district court must make definitive factual findings by a preponderance and perform rigorous Rule 23 analysis)
- Wal‑Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (class certification requires rigorous analysis and affirmative demonstration of Rule 23 compliance)
- Messner v. Northshore Univ. HealthSystem, 669 F.3d 802 (7th Cir. 2012) (Daubert ruling required where expert is critical to certification)
- In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604 (8th Cir. 2011) (approving focused Daubert analysis tied to certification requirements)