On Wednesday, April 8, 2015, the Third Circuit Court of Appeals vacated a district court’s order certifying a class of direct purchasers of blood reagents in a price-fixing suit against Ortho-Clinical Diagnostics Inc.  In re Blood Reagents, case number 12-4067.  Plaintiffs allege that Ortho-Clinical Diagnostic Inc. (Ortho) and a producer of blood reagents, violated Section 1 of the Sherman Act by conspiring with the only other U.S. producer of reagents, Immucor Inc., to raise prices of blood reagents on numerous occasions throughout the 2000s.  Immucor settled with plaintiffs in 2012.  In September 2011, the plaintiffs moved to certify a class of direct purchasers, and the district court held a hearing in July 2012.  To support their arguments for class certification, the plaintiffs relied on expert testimony to create their damages model and antitrust impact analysis.  Although Ortho challenged the reliability of the expert testimony, the district court certified the class and held that the testimony “could evolve to become admissible” at trial.  In re Blood Agents, 283 F.R.D. 222, 243-245 (E.D. Pa. 2012).  Ortho’s arguments went to the merits and were not persuasive at the class certification stage.  Id. at 240-41.  In making this ruling, the court relied on the Third Circuit decision of Behrand v. Comcast Corp., 655 F.3d 182 (3d. Cir. 2011).  Ortho appealed.

The Third Circuit vacated this class certification decision and remanded the case back to the lower court.  Since the district court’s ruling, the Supreme Court overturned Behrand and the “could evolve” standard relied on by the lower court in this case.  Comcast v. Behrand, 133 S.Ct. 1426 (2013).  Instead, the Supreme Court emphasized that the class certification analysis must be rigorous.  Id. at 1432.  Therefore, the Third Circuit determined that this “rigorous analysis” applied to expert testimony critical to proving class certification.  It held that if challenged expert testimony is critical to class certification, then plaintiffs cannot rely on this challenged testimony to show conformity with the class certification requirements unless they also establish, and the trial court finds, that the testimony satisfies the standard for expert testimony set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).  According to the Third Circuit’s order, on remand, the district court must first determine which, if any, of Ortho’s attacks on the expert’s reliability challenge the aspects of the expert testimony offered by the plaintiffs to satisfy class certification requirements.  Then, if necessary, the lower court must perform a Daubert analysis on this testimony before deciding whether to certify the class.

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