Class certification; FedRCivP 23; A common question of law or fact under Rule 23(a)(1) to support certification; In re Ford Motor Co, Doster v Kendall; Whether common questions predominated over individual ones under Rule 23(b)(3); Reliance on plaintiffs’ expert when granting class certification; Daubert v. Merrell Dow Pharms Inc

In this case in which the district court certified plaintiffs-Nissan purchasers’ 10 statewide classes, the court vacated and remanded for reconsideration of whether (1) there was a common question of law or fact to support certification and (2) common questions predominated over individual ones. It also joined the majority of other circuits and held that if “challenged expert testimony is material to a class certification motion, the district court must demonstrate the expert’s credibility under Daubert.” The putative class members purchased Nissans and claimed that the cars’ automatic alert for nearby vehicles or obstacles was activating at the wrong times. They sued, asserting various state-law claims, including warranty breach, fraud, consumer protection violations, and unjust enrichment. They argued that a “single radar problem” caused the defect and presented an expert report from a control systems engineer “who identified the radars as the ‘root cause’ of the” problem. Nissan asserted that there were multiple consumer claims alleged, and many versions of distinct products involved. On appeal, the court found “two over-arching flaws” in the district court’s ruling. “One turns on the distinct software upgrades created for different model cars. The other turns on the failure to analyze the elements of each state law claim to determine which, if any, elements would yield common yes-or-no answers. In fairness to the district court, it did not have the benefit of” the court’s Ford decision when it certified the classes here. The lack of a common answer to the threshold factual question of “which version of the software was included in the car each consumer drove” by itself justified “vacating this order under Ford.” Turning to the question of predominance, the court found that commonality issues tainted this “inquiry from the get-go” and that a “second look” by the district court was required for it to “consider, and account for, some of the ‘individualized determinations’ that might be ‘ill-equipped for classwide proof.’” The court then addressed whether, when “challenged expert testimony is relevant to class certification, must a district court perform a Daubert analysis of the evidence?” It agreed with a majority of circuits that the answer is yes.