Irma Allen v. Ollies Bargain Outlet IncIrma Allen v. Ollies Bargain Outlet Inc
Richard L. Etter [ARGUED]
Ogletree Deakins
One PPG Place
Suite 1900
Pittsburgh, PA 15222
David L. Schenberg
Ogletree Deakins
7700 Bonhomme Avenue
Suite 650
St. Louis, MO 63105
Counsel for Appellant
R. Bruce Carlson
Carlson Brown
222 Broad Street
Sewickley, PA 15143
Gary F. Lynch
Elizabeth Pollock-Avery
Kelly K. Iverson
Jamisen A. Etzel [ARGUED]
Nicholas Colella
Lynch Carpenter
1133 Penn Avenue
5th Floor
Pittsburgh, PA 15222
Counsel for Appellees
PORTER, Circuit Judge.
Irma Allen and Bartley Mullen are disabled and need wheelchairs to move about. Hoping to find “Good Stuff Cheap,” they went shopping at two different bargain stores owned by Ollie‘s Bargain Outlet, Inc. (“Ollie‘s“). But once inside Ollie‘s, they encountered an obstacle course: pillars, clothing racks, and boxes blocked their way. Dissatisfied with their shopping experiences, they filed a putative class action against Ollie‘s under Title III of the Americans with Disabilities Act (“ADA“). They seek permission to sue on behalf of every similarly disabled individual who shops at any Ollie‘s store in the United States and has or will encounter interior access barriers. The District Court certified the proposed class. We will vacate and remand. The District Court abused its discretion by certifying an overly broad class based on inadequate evidence of numerosity and commonality.
I
A
Ollie‘s owns and operates over four hundred retail stores across twеnty-nine
B
Title III of the ADA prohibits retailers like Ollie‘s from discriminating “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” they offer to the public.
First, Title III discrimination includes “a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford” goods, services, and the like to “individuals with disabilities.” Id.
Second, Title III discrimination includes “a failure to remove architectural barriers . . . in existing facilities, . . . where such removal is readily achievable.”
Third, facilities built or altered after the ADA‘s effective dates must be “readily accessible to and usable by” the disabled.
Plaintiffs’ “core contention” is that “Ollie‘s deliberately directs the placement of merchandise within aisles,” causing a corporate-wide failure to maintain accessible aisles. Appellees’ Br. 28. Under plaintiffs’ theory, retail stores fail to maintain accessible aisles “in operable working condition” if they intentionally and recurringly block
C
After completing targeted discovery, plaintiffs moved to certify the following class under
All persons with qualified mobility disabilities who have attempted, or will attempt, to access the interior of any store owned or operated by [Ollie‘s] within the United States and have, or will have, experienced access barriers in interior paths of travel.
App. 171. Before proceeding as a class under
Before the District Court, Plaintiffs argued that joinder of class members was impracticable given the size of the class. They introduced three strands of evidence to support this assertion. First, data from the U.S Census Bureau‘s 2018 American Community Survey, estimating the number of people with ambulatory disabilities—meaning serious difficulty walking or climbing stairs—for each zip code with an Ollie‘s store. Second, twelve emails received by Ollie‘s customer service over three years from or on behalf of patrons that use wheelchairs or have a mobility disability. Third, a declaration stating that over seven days, sixteen persons using wheelchairs or scooters were recorded by video at the two Ollie‘s locations where Allen and Mullen shopped.
Plaintiffs at first argued there were common questions based on Ollie‘s alleged failure to adopt ADA-specific standard operating procedures and employee training practices. In their reply brief, plaintiffs urged a narrower commonality argument, one they now press on appeal. They asserted that Ollie‘s “employees” have a common “practice” of “placing merchandise displays and stock in locations that block or limit accessibility,” and they attributed this alleged practice to Ollie‘s corporate “merchandise stocking and display practices.” App. 901–02. To support this commonality argument, plaintiffs cited allegations in their complaint, Allen‘s and Mullen‘s depositions, and photographs of Pennsylvania stores showing a “pattern and practice of path of travel obstructions.” App. 901 n.8, 902 n.9.
D
The District Court certified the proposed class. The District Court agreed
The District Court also held the proposed class presented common questions. It relied on a syllogism. First, “Ollie‘s policies are uniform and company-wide.” Id. at *7. Second, “[i]f Ollie‘s policies and procedures do, in fact, cause access barriers to unlawfully restrict individuals with disabilities from obtaining their desired goods, then proposed members who endured violations have suffered the same injury, the resolution of which will resolve a central issue in one fell stroke.” Id. “As a result,” the District Court held, “Plaintiffs have satisfied their burden of showing by a preponderance of the evidence that there are questions of law or fact common to the proposed class.” Id. After finding the remaining requirements of
This appeal followed.
II
The District Court had subject-matter jurisdiction under
We review a class certification order for abuse of discretion, which occurs if the trial court‘s decision rests on a clearly errоneous finding of fact, an errant conclusion of law, or an improper application of law to fact. Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 590 (3d Cir. 2012). We review questions of law, including whether the trial court applied the correct legal standard, de novo. Steak ‘n Shake, 897 F.3d at 474.
III
A
Under
In recent opinions, we have given the numerosity requirement “real teeth.” Steak ‘n Shake, 897 F.3d at 484. When plaintiffs cannot directly identify class members, they “must show sufficient circumstantial evidence specific to the products, problems, parties, and geographic areas actually covered by the class definition to allow a district court to make a factual finding. Only then may the court rely on ‘common sense’ to forgo precise calculations and exact numbers.” Marcus, 687 F.3d at 596. And “where a putative class is some subset of a larger pool, the trial court may not infer numerosity from the number in the larger pool alone.” Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 358 (3d Cir. 2013). In Steak ‘n Shake, for example, census data showing “there are between 14.9 million to 20.9 million persons with mobility disabilities who live in the United States” was not enough to show numerosity under
1
Plaintiffs argue that the 2018 American Community Survey estimates of persons with mobility disabilities would alone allow us to affirm the District Court‘s numerosity finding. But these survey estimates prove little. The survey measures anyone who reports serious difficulty walking or climbing steps. Plaintiffs acknowledge that the more relevant number of disabled persons—individuals needing wheelchairs—is about an order of magnitude lower, and they ask us to extrapolate more accurate regional numbers from different national census estimates. The national census study they cite estimates that persons needing wheelchairs are a small fraction of the population that has severe difficulty walking or climbing stairs. See Mathew W. Brault, U.S. Census Bureau, Americans with Disabilities: 2010, P70-131, Table A-1, 17 (July 2012) (8.3% of the U.S. population fifteen and older has a severe mobility disability, but only 1.5% uses a wheelchair), https://perma.cc/5V96-H5DS. But extrapolating the relevant number across every region would be hazardous speculation. “Trained experts commonly extrapolate from existing data.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). Generalist Article III judges typically do not.
Regional population statistics like the survey are in any event insufficient. Thе District Court was right “that a district court‘s finding premised almost exclusively on statistical data is not enough to satisfy numerosity—something more is required.” Ollie‘s, 2021 WL 1152981, at *6. Steak ‘n Shake rejected reliance on statistical data
The “something more” required by Steak ‘n Shake is concrete evidence of class members who have patronized a public accommodation and have suffered or will likely suffer common ADA injuries. We reject plaintiffs’ argument that the community survey estimates alone are enough to carry their burden of proof.
2
We next turn to the other two strands of non-statistical evidence the District Court thought set this case apart from Steak ‘n Shake. While this evidence is probative, after examining all the evidence, we are still left with head-scratching speculation, insufficient to support a factual finding.
a.
The first strand of non-statistical evidence is рlaintiffs’ declaration stating that over seven days, sixteen persons using wheelchairs or scooters were recorded by video at the two Ollie‘s locations where Allen and Mullen shopped.2 We agree that this declaration is “probative of the number of potentially disabled individuals visiting Ollie‘s stores.” Ollie‘s, 2021 WL 1152981, at *5 n.6. But it is not enough to satisfy plaintiffs’ burden of proof on numerosity, even considered alongside the community survey of disabled residents.
For one, the declaration does not allow us to determine what portion of disabled residents shop at Ollie‘s. Plaintiffs ask us to extrapolate customer numbers from a limited video sample of two stores over seven days, arguing the video footage suggests more than three hundred wheelchair-using customers shop at Ollie‘s every day. But that extrapolation rests on speculation, not a reasonable inference. The video, for starters, does not allow us to determine what portion of those wheelchair-using customers are disabled. To be disabled, the customers would need to have
Still, even assuming all sixteen customers were likely disabled and that none of them were repeat visitors, we have no basis to assume that the rate of wheelchair-using customers observed in the video footage sample is representative of Ollie‘s stores. Before we can extrapolate the limited sample across four hundred stores, our precedent requires at least some evidence supporting a factual finding that disabled customers visit Ollie‘s “in roughly equal proportions” to the rate observed in the video. Marcus, 687 F.3d at 596. Otherwise, we remain in the realm of speculation, not common-sense inferences. And even if the declaration allowed us to determine the pool of wheelchair-bound Ollie‘s customers, the declaration still does not allow us to “determine—rather than speculate about—the portion of those disabled individuals who . . . have experienced or will experience an ADA violation at one of those” stores. Steak ‘n Shake, 897 F.3d at 486. The declaration does not suggest that the wheelchair-using customers obsеrved in the video suffered an ADA violation in common with the class. At best, the declaration is evidence of the general pool of wheelchair-using Ollie‘s customers, not the more relevant subset of wheelchair-bound customers who have suffered common ADA injuries. The District Court appears to have assumed that evidence of injured customers was unnecessary to support numerosity. See Ollie‘s, 2021 WL 1152981, at *6 n.7. If so, that was error. Evidence establishing the subset of injured customers, not just the general pool of wheelchair-using customers who shop at Ollie‘s, is necessary to support a finding that a class is likely numerous enough. See Marcus, 687 F.3d at 595. The putative class consists of persons with mobility disabilities who encountered or will encounter inaccessible aisles at an Ollie‘s store. There may well be millions of wheelchair-bound Ollie‘s customers across all twenty-nine states, but if none of them suffered or will likely suffer similar class injuries, they are not class members and do not support a finding of numerosity.
b.
The District Court also relied on what it characterized as “the written complaints of twelve individuals cоmplaining, in one way or another, of various barriers adversely affecting the navigation of individuals who are wheelchair-bound.” Ollie‘s, 2021 WL 1152981, at *5. Unlike the community survey or the video, at least some of these
At the outset, we note the parties dispute whether the customer complaints are admissible as evidence. Ollie‘s argues that the Federal Rules of Evidence apply during the class certification stage, and that the customer complaints are inadmissible hearsay. Plaintiffs respond that “fact” testimony—as opposed to expert opinion—need not be admissible to support class certification. The District Court agreed with plaintiffs, holding the Federal Rules of Evidence are inapplicable to non-expert evidence used to certify a class. Ollie‘s, 2021 WL 1152981, at *5 n.5. We decline to decide this question. For even assuming—and it is only an assumption—that the Federal Rules of Evidence do not govern the admissibility of the customer complaints, the record still would not establish numerosity.3
To begin, at least one of the twelve customer complaints does not support membership in the putative class. The relevant email says:
Please pass this on to the management at the Columbus, GA store. My husband and I recently visited this store for the first time, and we were very impressed. My husband is a paraplegic, and uses a wheelchair while shopping. There were very few places he could not get into, and every employee he encountered asked if he needed help. The aisles were clear, and the merchandise was—for the most part—easy for him to reach. When we asked for help, it was given cheerfully and quickly. We enjoyed the experience, and plan to become regular customers. The employees of this store went above and beyond, and I just wanted you to know.
App. 711. The class definition is limited to disabled individuals who have experienced access barriers in interior access aisles. This disabled customer reportedly experienced clear aisles at his local Ollie‘s store in Georgia, so he is not a potential class member. The District Court clearly erred by relying on this email as evidence of a potential class member.
There may be others. Ollie‘s argues that other customer complaints, closely read, similarly do not support the existence of class members. For example, Ollie‘s argues that the District Court should have excluded two customer complaints made outside of Pennsylvania‘s two-year statute of limitations for personal injury claims. The District Court never considered these arguments. On remand, the District Court should determine whether the remaining complaints support the existence of putative class members. To do so, the District Court must be able to infer from the complaints that an Ollie‘s customer with a mobility disability suffered or will suffer a common ADA injury that falls within the putative class definition. Otherwise, the District Court cannot rely on the customer complaints to determine the existence of putative class members.
In any event, evеn assuming all eleven remaining customer complaints support a finding that there are at least eleven putative class members, and considering the declaration and the statistical evidence together, as the District Court did, we still find the evidence far too speculative. To recap, the community survey tells us nothing concrete about the portion of disabled residents who shop at Ollie‘s stores. The declaration tells us nothing about what portion of disabled customers suffered
In short, after considering the record evidence, we have proof of a class that consists of Allen, Mullen, and at most eleven others. To establish numerosity, plaintiffs must do more to prove the existence of actual class members. See In re Modafinil Antitrust Litig., 837 F.3d at 250 (suggesting a class of twenty or less would be too small to justify a class action). If plaintiffs cannot carry the burden on numerosity, Allen and Mullen may always seek relief individually.
3
While “the number of class members is the starting point,” trial courts should weigh other factors relevant to the practicability of joinder under
B
A class may be certified only if “there are questions of law or fact common to the class.”
The District Court abused its discretion when finding commonality for two reasons. First, it misapplied the relevant standards and certified a geographically overbroad class. Second, as we explained
1
The District Court found commonality satisfied for a class consisting of all Ollie‘s stores in the United States. The District Court reasoned that “[i]f Ollie‘s policies and procedures do, in fact, cause access barriers to unlawfully restrict individuals with disabilities from obtaining their desired goods, then proposed members who endured violations have suffered the same injury, the resolution of which will resolve a central issue in one fell stroke.” Ollie‘s, 2021 WL 1152981, at *7. “As а result,” the District Court concluded, “Plaintiffs have satisfied their burden of showing by a preponderance of the evidence that there are questions of law or fact common to the proposed class.” Id. The conclusion does not follow from the premise.
Before certifying the proposed class, the District Court must answer the very question it asked: whether plaintiffs have significant proof that Ollie‘s corporate policies, procedures, or practices in fact cause discrimination by stores nationwide. Posing a hypothetical common question is not enough to satisfy plaintiffs’ burden of proof. There must be evidence the class proceeding will likely “produce a common answer.”
Dukes, 564 U.S. at 352. By failing to answer the commonality question, the District Court deferred plaintiffs’ need to show commonality.
The District Court‘s legal error is not harmless. Our review of the record shows that commonality is not met by a preponderance of the evidence for this nationwide class. It is not enough that Ollie‘s has corporate policies and that some or all stores in Pennsylvania pay inadequate attention tо aisle accessibility. Stitching together a corporate-wide class requires more.
”
Like any large retailer, Ollie‘s has several corporate policies governing its stores. These include visual store standards governing the placement and marketing of goods, general safety, loss prevention, and maintenance policies, and a “Yes, I Can” program, requiring stores to retrieve goods for patrons that have trouble accessing them. Ollie‘s specifically requires stores to ensure wheelchairs can pass easily through aisles. So as in Dukes, Ollie‘s “announced policy forbids” the discriminatory conduct alleged by the class—inaccessible interior aisles. Dukes, 564 U.S. at 353. Ollie‘s, to be sure, allows local stores discretion when maintaining adequate paths of travel for wheelchairs. But that kind of discretionary decision-making “is just the opposite of a uniform . . . practice that would provide
On appeal, plaintiffs focus on Ollie‘s visual store standards. They argue that the standards emphasize placing as much stock as possible on the sales floor. For example, they point out that photographs in the visual standards illustrate items stacked to the side of aisles as well as tight placement of clothing racks. Plaintiffs stress in their briefing that Ollie‘s visual store standаrds are “a plausible explanation,” a “plausible causal connection,” or “a plausible, direct cause of the proliferation of allegedly discriminatory barriers.” Appellees’ Br. 15, 27. Perhaps. But plaintiffs must do more than assert a plausible causal explanation at this stage. They must show that the visual store standards are more likely than not a common cause of a failure to maintain accessible aisles across Ollie‘s stores in the United States.
They have not met that burden. There is no proof that the visual standards cause inaccessible aisles across all Ollie‘s stores nationwide. The investigative record is limited to stores in Pennsylvania. On this record, we do not know whether the visual standards “may have resulted in” discrimination “in some regions . . . but not at all in others.” Rodriguez, 726 F.3d at 385. Proceeding on a corporate-wide basis against a corporation with over four hundred stores in twenty-nine states requires more than plausible allegations backed by Pennsylvania-only evidence.
The only evidence from outside Pennsylvania is less than a dozen customer emails reporting inaccessible aisles.4 Setting aside the potential inadmissibility of the emails, Dukes rejected “anecdotal evidence” as “too weak” to support a common practice. Dukes, 564 U.S. at 358. Dukes involved 120 employee affidavits, signed under penalty of perjury, sharing stories of employment discrimination by Wal-Mart supervisors. Id. The Supreme Court said these affidavits proved nothing: “More than half of these reports are concentrated in only 6 States (Alabama, California, Florida, Missouri, Texas, and Wisconsin); half of all States have only one or two anecdotes; and 14 States have no anecdotes about Wal-Mart‘s operations at all.” Id. The anecdotal evidence here is far weaker than in Dukes. Less than a dozen email anecdotes over four years, from a corporation with over four hundred stores in twenty-nine states and thousands of employees exercising discretion, “prove nothing at all.” Id. at 358 n.9.
The District Court abused its discretion by certifying a corporate-wide class on this record. We leave it to the District Court to decide whether a geographically narrower class limited to some or all Ollie‘s stores in Pennsylvania would satisfy thе commonality requirement.
2
The District Court also abused its discretion when finding commonality for a separate reason. The District Court certified a class embracing all persons with qualified mobility disabilities who have “experienced access barriers in interior paths of travel.” Ollie‘s, 2021 WL 1152981, at *8–9. That class definition conflicts with our decision in Steak ‘n Shake. A class that
In Steak ‘n Shake, the trial court certified a class consisting of persons with qualified disabilities who “encountered accessibility barriers at any Steak ‘n Shake restaurant.” 897 F.3d at 487-88. We reversed the trial court‘s commonality finding for two independent reasons.
First, the class representatives’ alleged injuries were based on excessively steep parking slopes, but the class was not limited to restaurant patrons who suffered an injury in a parking lot. Id. at 489–90. Second, and more relevant here, even if the class definition were limited to parking facilities, we observed, “the wide variety of [ADA] regulations . . . reveal that there are still various types of ADA violations that could occur specifically in a parking facility.” Id. at 490. Access barriers could include excessively steep parking lots but could also include inаdequate signs. Id. “The wide variety of potential ADA violations captured in the broad class definition,” we held, meant that the claims could not be litigated together all at once. Id.
The class definition here similarly applies to any “access barriers.” Ollie‘s, 2021 WL 1152981, at *9. Plaintiffs argue that Steak ‘n Shake is distinguishable because the class is limited to access barriers in interior paths of travel, not every part of a store, but that entirely ignores our second reason for finding no commonality. In Steak ‘n Shake, we warned against the broad term “accessibility barriers,” as it sweeps in a broad array of potential claims with little in common. The same is true here. Some “access barriers” are fixtures, like pillars, fixed tables, or aisle shelves. There is no evidence those types of fixed barriers result from any common policy or employee practice. Plaintiffs have not shown that Ollie‘s has any centralized blueprint or policy that requires stores to build narrow aisles or place pillars, tables, and shelving in the middle of the way. Cf. Colorado Cross Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1216–17 (10th Cir. 2014) (porch design common to all 231 stores involved raised common question). Without evidеnce of a centralized store blueprint, we cannot say claims against those types of access barriers in interior paths of travel can be productively litigated together.
On appeal, plaintiffs focus their argument on movable barriers like merchandising, clothing racks, inventory carts, and the like. Plaintiffs mainly argue that Ollie‘s stores violate their obligation to maintain 36-inch-wide accessible aisles by recurringly placing merchandising in the way. But that is not the class the District Court certified. At plaintiffs’ request, the District Court certified a class that applies to any kind of access barrier in interior paths of travel, not just merchandising wares blocking accessible aisles. We cannot cure the overbreadth of the class definition on appeal. We leave it to the District Court to decide whether a narrower class limited to particular merchandising wares or particular merchandising display practices blocking interior aisles could satisfy the commonality requirement.
* * *
Plaintiffs have failed to clear the first two hurdles of
There are significant cohesion concerns with some of the theories of classwide relief advocated by plaintiffs. For example, to the extent plaintiffs seek removal of “architectural barriers” in Ollie‘s existing facilities, liability turns on a variety of individualized factors, including “the nature and cost of” the steps needed to remove each barrier.
PORTER, Circuit Judge, concurring.
Today, we sidestep one of the principal legal issues raised by this appeal: whether the Federal Rules of Evidence apply to fact evidence introduced in support of class certification. Respectfully, I see no reason to duck the question. The issue is properly presented and adequately briefed. The District Court may still need to answer this question on remand. And courts are divided. By our indecision, we prolong needless uncertainty in an important area of the law, and we undermine the uniformity required by the Federal Rules of Evidence. I would prefer to end any lingering uncertainty now, by holding that statutory text and precedent require applying the Federal Rules of Evidence before certifying a class under
I
As the Supreme Court has emphasized, ”
In Blood Reagents, we held rigorous analysis means “that a plaintiff cannot rely on challenged expert testimony . . . to demonstrate conformity with
We have never addressed whether fact evidence, rather than expert opinion, must likewise be admissible. The District Court rejected Ollie‘s hearsay objection to the customer service emails by holding that non-expert evidence used to certify a class need not be admissible. See Allen v. Ollie‘s Bargain Outlet, Inc., No. 2:19-CV-281, 2021 WL 1152981, at *5 n.5 (W.D. Pa. Mar. 26, 2021). That conclusion conflicts with the Federal Rules of Evidence.
The Federal Rules of Evidence are an exercise of legislative authority, so we read the rules “as we would any statute.” Daubert, 509 U.S. at 587. “The specific courts and proceedings to which the rules apply, along with exceptions, are set out in
While the list is not exclusive, in context, the miscellaneous-proceedings exception is best read as limited to closely analogous collateral proceedings, like hearings to transfer a juvenile delinquent for prosecution as an adult. See Gov‘t of Virgin Islands in Interest of A.M., 34 F.3d 153, 161–62 (3d Cir. 1994) (allowing hearsay in a juvenile transfer hearing because the hearing was analogous to a preliminary examination in a criminal case). Otherwise, the exception would swallow the rule. Even if the exception may be extended to some ordinary civil proceedings, class certification proceedings are not closely analogous to any of the listed “miscellaneous proceedings,” so context suggests they do not fall under this exception, much like
Our decision in Blood Reagents, moreover, prevents us from dispensing with the Federal Rules of Evidence. The District Court distinguished Blood Reagents as involving expert evidence. Ollie‘s, 2021 WL 1152981, at *5 n.5. But for purposes of this question there is no principled basis for distinguishing between fact and expert evidence. Nothing in the rules of evidence
No hearsay exception applies to
In short, “simple logic indicates,” and statutory text confirms, that
II
Overlooking
Several circuits disagree with some or all of this. The First Circuit has rejected inadmissible hearsay evidence to support standing for class members, reasoning that “class certification provides no occasion for jettisoning the rules of evidence and procedure, the Seventh Amendment, or the dictate of the Rules Enabling Act.” In re Asacol Antitrust Litig., 907 F.3d 42, 53 (1st Cir. 2018). That same logic would require
I agree with the First and Fifth Circuits: Evidence used to certify a class must be admissible. The Sixth, Eighth, and Ninth Circuits overlook
A
First, these circuits point to
B
Second, these circuits assert that an order certifying a class is merely “tentative” and “preliminary,” as “[a]n order that grants or denies class certification may be altered or amended before final judgment.” Id. at 1004 (quoting
For one, that snippet of Eisen preceded the 2003 amendments to
For another,
For similar reasons, the rhetoric about evidentiary shooting matches is also behind the times. Class certification proceedings are already evidentiary shooting matches, sometimes requiring extensive evidentiary hearings. Id. at 639–41. The question is whether the shooting mаtch will be played according to the uniform rules enacted by Congress, no rules at all, or only the rules judges really like. The correct answer is the rules enacted by Congress.
Characterizing
C
The Eighth Circuit has also suggested that because class certification findings are made by a judge, not a jury, there is less reason to apply Daubert rigorously, and presumably other rules of evidence too. Zurn, 644 F.3d at 613. But this distinction finds no support in the Federal Rules of Evidence or our caselaw. The Federal Rules of Evidence require applying Daubert faithfully in bench trials too. UGI Sunbury LLC v. A Permanent Easement for 1.7575 Acres, 949 F.3d 825, 832–33 (3d Cir. 2020). Some rules of evidence, to be sure, expressly reference jury trials and do not apply to bench trials.
* * *
Reasonable minds may disagree over the wisdom or practicality of applying the Federal Rules of Evidence, or hearsay rules specifically, in