A recent U.S. Supreme Court ruling in Tyson Foods v. Bouaphakeo (17 CLASS 307, 3/25/16), upheld 6-2 the plaintiff’s use of representational proof to support class status for a group of workers in a labor dispute. While statements from the court mentioned that the defense did not file a Daubert motion early on in the proceedings, they did not go so far as to say that the outcome would have been different if the Tyson team had done so. That has not stopped industry professionals from speculating that this ruling will fuel defense teams to automatically challenge representational evidence early and more often in the future.
But did Tyson’s defense team really do wrong by their clients? This recent article from Bloomberg provides opinions on both sides of the argument. It’s an interesting debate, but one which ends, in my opinion, in essentially the same place.
When you take a case like Tyson or any other high profile, high stakes class action suit, people may be quick to assume that the defense should automatically challenge the evidence in the case. What do they have to lose? It’s a classic case of CYA so the defense team itself doesn’t end up in the hot seat down the road. But there is more to the story than the assumptions of armchair attorneys. Would a multi-billion dollar food giant really hire lawyers that simply overlooked a promising Daubert challenge?
Sometimes there simply isn’t a solid reason to challenge the evidence, even when it is statistical. If a defense team challenges representative expert testimony and loses, they have only strengthened the credibility of the expert and evidence and wasted client money. Maybe the Tyson lawyers didn’t think it was worth the risk. Maybe they knew that it wouldn’t be worth it. Should defense teams across the nation start adjusting their strategy because of the result of this one particular case?
The simple way to look at this complex situation is that any expert evidence that is based on fuzzy logic or bad science, representative or otherwise, is going to be challenged in one way or another. Each case has its own unique elements and can’t be predicted or predicated on the results of another. Legal teams must work with the information and experience at hand to make the best decisions for their clients.
Ultimately, the lesson here for both sides of the case is to devote the proper time and resources required to hire the best experts for your case. If you are confident in your evidence, whether a challenge is raised in early proceedings or during trial, you’ve done the very best for your client.