2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-8-2015

In re: Blood Reagents Antitrus

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2015

This April is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University

School of Law Digital Repository. It has been accepted for inclusion in 2015 Decisions by an authorized administrator of Villanova University School of

Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"In re: Blood Reagents Antitrus" (2015). 2015 Decisions. Paper 340.

http://digitalcommons.law.villanova.edu/thirdcircuit_2015/340
 PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

________________ 

No. 12-4067 

________________ 

IN RE: BLOOD REAGENTS ANTITRUST LITIGATION 

 Ortho Clinical Diagnostics, Inc., 

 Appellant 

________________ 

On Appeal from the District Court 

for the Eastern District of Pennsylvania 

(D.C. No. 2-09-md-02081) 

(Honorable Jan E. DuBois) 

________________ 

Argued: February 12, 2014 

Before: SMITH, CHAGARES, and SCIRICA, Circuit Judges 

(Filed: April 8, 2015) 

Richard E. Coe, Esq. 

Joanne C. Lewers, Esq. 

Chanda A. Miller, Esq. 
2 

Paul H. Saint-Antoine, Esq. [ARGUED] 

Drinker, Biddle & Reath 

18th & Cherry Streets 

One Logan Square, Suite 2000 

Philadelphia, PA 19103 

Counsel for Appellant 

Jay S. Cohen, Esq. 

Jeffrey J. Corrigan, Esq. [ARGUED] 

Rachel E. Kopp, Esq. 

Jeffrey L. Spector, Esq. 

Spector, Roseman, Kodroff & Willis 

1818 Market Street 

Suite 2500 

Philadelphia, PA 19103 

Counsel for Appellees 

________________ 

OPINION OF THE COURT 

________________ 

SCIRICA, Circuit Judge. 

The principal issues in this appeal under Federal Rule 

of Civil Procedure 23(f) in this antitrust action are (1) 

whether Rule 23 requires scrutiny under Daubert v. Merrell 

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), of 

challenged expert testimony and (2) the propriety of class 

certification in light of the Supreme Court’s decision in 

Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) 
3 

(Comcast), which reversed Behrend v. Comcast Corp., 655 

F.3d 182 (3d Cir. 2011) (Behrend), after the District Court 

relied on Behrend in granting class certification. Because we 

find that the District Court had no opportunity to consider the 

implications of Comcast and hold that, if applicable, a court 

must resolve any Daubert challenges to expert testimony 

offered to demonstrate conformity with Rule 23, we vacate 

and remand.1

I.2

Plaintiffs are direct purchasers of traditional blood 

reagents, products used to test blood compatibility between 

donors and recipients, from two companies, defendants 

Immucor, Inc., which has settled with plaintiffs, and OrthoClinical Diagnostics, Inc., the appellant here. Plaintiffs claim 

 1

 The District Court had jurisdiction under 15 U.S.C. 

§ 15(a) and 28 U.S.C. § 1331. We have appellate jurisdiction 

under 28 U.S.C. § 1292(e) and Rule 23(f). We review the 

grant of class certification for an abuse of discretion, which 

occurs if the certification “rests upon a clearly erroneous 

finding of fact, an errant conclusion of law or an improper 

application of law to fact.” In re Hydrogen Peroxide Antitrust 

Litig., 552 F.3d 305, 312 (3d Cir. 2008) (citation omitted). 

“Whether an incorrect legal standard has been used is an issue 

of law to be reviewed de novo.” Id. (alteration and citation 

omitted). 

2

 The District Court’s Memorandum provides a more 

detailed description of the alleged facts in this case. See In re 

Blood Reagents Antitrust Litig., 283 F.R.D. 222 (E.D. Pa. 

2012). 
4 

Ortho and Immucor violated federal antitrust law by 

conspiring to fix traditional blood reagent prices. 

By 1999, the entire domestic supply of traditional 

blood reagents had come under the control of Ortho and 

Immucor in a duopoly in which both companies anticipated 

they could raise their prices and increase their profits.3

 In 

November 2000, Ortho and Immucor executives attended an 

annual trade meeting at which plaintiffs assert the conspiracy 

began. Soon thereafter, both Ortho and Immucor began 

increasing traditional blood reagents prices in rapid 

succession, and by 2009, many prices had risen more than 

2000%. Following a Department of Justice probe, a number 

of private suits were filed and transferred by the Judicial 

Panel on Multidistrict Litigation to the District Court, which 

consolidated them in December 2009. 

Plaintiffs seek damages under the Clayton Act, see 15 

U.S.C. § 15, for alleged horizontal price fixing in violation of 

the Sherman Act, see 15 U.S.C. § 1. In July 2012, after 

preliminary approval of plaintiffs’ settlement with Immucor, 

the court held a hearing to determine whether to certify 

plaintiffs’ class of “[a]ll individuals and entities who 

purchased traditional blood reagents in the United States 

directly from Defendants Immucor, Inc., and Ortho-Clinical 

 3

 During the 1980s and 1990s, the traditional blood 

reagent market was highly competitive. Faced with more than 

a dozen competing companies and low profit margins, Ortho 

considered abandoning the industry while Immucor 

approached bankruptcy. At some point in the 1990s, Immucor 

began to acquire competing producers and by 1999, Immucor 

and Ortho were the only remaining firms in the U.S. market. 
5 

Diagnostics, Inc. at any time from January 1, 2000 through 

the present.” 283 F.R.D. at 247. The court then certified the 

class over Ortho’s objection. We granted Ortho’s petition to 

appeal under Rule 23(f). 

II. 

Plaintiffs relied in part on expert testimony to produce 

their antitrust impact analyses and damages models. The 

District Court evaluated the testimony, the reliability of which 

Ortho consistently challenged, and, in part by holding that the 

testimony “could evolve to become admissible evidence” at 

trial, determined that plaintiffs had met Rule 23(b)(3)’s 

predominance requirement. See 283 F.R.D. at 243-45 

(quoting Behrend, 655 F.3d at 204 n.13). Relying on our 

decision in Behrend, the court rejected Ortho’s challenges to 

plaintiffs’ damages models as irrelevant to class certification 

because, the court reasoned, 

[v]irtually all of Ortho’s arguments go to the 

merits of the models [plaintiffs’ expert] has 

constructed: the question whether the models 

give rise to “a just and reasonable inference or 

[are] speculative.” Behrend, 655 F.3d at 206. 

These merits questions have some force, and 

they may prove persuasive at the summary 

judgment stage. However, they do not overlap 

with the Rule 23 requirements, because they 

neither implicate a need for individual proof nor 

convince the Court that [the] models could not 

“evolve to become admissible evidence.” Id. at 

204 n.13. 
6 

Blood Reagents, 283 F.R.D. at 240-41 (third alteration in 

original). 

On appeal, Ortho contends the trial court failed to 

rigorously scrutinize whether “questions of law or fact 

common to class members predominate over any questions 

affecting only individual members.” Fed. R. Civ. P. 23(b)(3). 

In particular, pointing to Comcast, Ortho asserts the trial court 

erred by declining to address at class certification whether 

plaintiffs’ damages models were capable of producing just 

and reasonable damage estimates at trial and by accepting 

plaintiffs’ theory as capable of proving classwide antitrust 

impact.4

 Ortho also argues that, under the class certification 

 4

 More specifically, Ortho contends that plaintiffs’ 

expert’s methodologies cannot prove antitrust impact as a 

matter of law because they are incapable of distinguishing 

lawful price increases resulting from the creation of a duopoly 

from price increases resulting from the alleged price-fixing 

conspiracy. Ortho bases this argument in part on statements in 

Comcast such as, “Prices whose level above what an expert 

deems ‘competitive’ has been caused by factors unrelated to 

an accepted theory of antitrust harm are not ‘anticompetitive’ 

in any sense relevant here,” 133 S. Ct. at 1435, and the 

suggestion that a damages model must be able “to bridge the 

differences between supra-competitive prices in general and 

supra-competitive prices attributable to” the antitrust 

violation, id. See also, e.g., id. at 1433 (stating that “a model 

purporting to serve as evidence of damages . . . must measure 

only those damages attributable to” the “theory of antitrust 

impact accepted for class-action treatment,” and those 

damages must be “susceptible of measurement across the 

entire class”); id. at 1435 (“The first step in a damages study 
7 

standard, the trial court should have scrutinized the plaintiffs’ 

expert’s testimony under Daubert. 

III. 

A. 

Because the District Court did not have the 

opportunity to consider Comcast’s later-issued guidance in 

the first instance, we will vacate the class certification order 

and remand for reconsideration. Without foreclosing what 

other conclusions the District Court might reach regarding 

Comcast’s ramifications for antitrust damages models5

 or 

proving antitrust impact,6

 we believe Behrend’s “could 

evolve” formulation of the Rule 23 standard did not survive 

Comcast. See Comcast, 133 S. Ct. at 1433 (criticizing 

Behrend for “finding it unnecessary to decide ‘whether the 

[expert’s damages] methodology [was] a just and reasonable 

inference or speculative’” and indicating that such a 

methodology is not “acceptable so long as it can be applied 

classwide, no matter how arbitrary the measurements may be” 

(second alteration in original) (quoting Behrend, 655 F.3d at 

206)). As we stated in In re Hydrogen Peroxide Antitrust 

Litigation, the “proper task” of the trial court is “to consider 

carefully all relevant evidence and make a definitive 

 

is the translation of the legal theory of the harmful event into 

an analysis of the economic impact of that event.’” (quoting 

Federal Judicial Center, Reference Manual on Scientific 

Evidence 432 (3d ed. 2011))). 

5 See generally Comcast, 133 S. Ct. at 1433-35. 

6 See supra note 4 and accompanying text. 
8 

determination that the requirements of Rule 23 have been met 

before certifying a class.” 552 F.3d 305, 320 (3d Cir. 2008). 

“Class certification requires a finding that each of the 

requirements of Rule 23 has been met,” id.; factual 

determinations “must be made by a preponderance of the 

evidence,” id. at 307. “‘[A]ctual, not presumed, conformance’ 

with the Rule 23 requirements remains necessary,” id. at 322 

(quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 

(1982)), and “[a] party’s assurance to the court that it intends 

or plans to meet the requirements is insufficient,” id. at 318.7

 

B. 

We join certain of our sister courts to hold that a 

plaintiff cannot rely on challenged expert testimony, when 

critical to class certification, to demonstrate conformity with 

Rule 23 unless the plaintiff also demonstrates, and the trial 

court finds, that the expert testimony satisfies the standard set 

out in Daubert. The Supreme Court has emphasized that the 

class certification analysis must be “rigorous.” Comcast, 133 

S. Ct. at 1432 (quoting Wal-Mart Stores, Inc. v. Dukes, 131 S. 

Ct. 2541, 2551 (2011)). This “rigorous analysis” applies to 

expert testimony critical to proving class certification 

 7

 Similarly, “[u]nder the present structure of Rule 

23(c), . . . a district court [is] no longer permitted to issue a 

‘conditional certification’ . . . because [a] trial court must 

‘make a definitive determination that the requirements of 

Rule 23 have been met before certifying a class.’” In re NFL 

Players Concussion Injury Litig., --- F.3d ---, ---, No. 14-

8103, 2014 WL 7331936, at *6 (3d Cir. Dec. 24, 2014) (third 

alteration in original) (citation and internal quotation marks 

omitted) (quoting Hydrogen Peroxide, 552 F.3d at 320). 
9 

requirements. See, e.g., Comcast, 133 S. Ct. at 1433 (citing 

Dukes, 131 S. Ct. at 2551-52); Hydrogen Peroxide, 552 F.3d 

at 323. As part of the “rigorous analysis,” the Court has 

clarified, “[a] party seeking class certification must 

affirmatively demonstrate his compliance” with Rule 23. 

Dukes, 131 S. Ct. at 2551. This means that the party seeking 

certification must “be prepared to prove that there are in fact

sufficiently numerous parties, common questions of law or 

fact, typicality of claims or defenses, and adequacy of 

representation, as required by Rule 23(a). The party must also 

satisfy through evidentiary proof at least one of the provisions 

of Rule 23(b).” Comcast, 133 S. Ct. at 1432 (emphasis in 

original) (quotation marks and citation omitted). Expert 

testimony that is insufficiently reliable to satisfy the Daubert 

standard cannot “prove” that the Rule 23(a) prerequisites 

have been met “in fact,” nor can it establish “through 

evidentiary proof” that Rule 23(b) is satisfied. Other courts of 

appeals have reached this conclusion. See Messner v. 

Northshore Univ. HealthSystem, 669 F.3d 802, 812 (7th Cir. 

2012) (“When an expert’s report or testimony is ‘critical to 

class certification,’ we have held that a district court must 

make a conclusive ruling on any challenge to that expert’s 

qualifications or submissions before it may rule on a motion 

for class certification.” (quoting Am. Honda Motor Co. v. 

Allen, 600 F.3d 813, 815 (7th Cir. 2010) (per curiam))); In re 

Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 614 

(8th Cir. 2011) (approving “a focused Daubert analysis which 

scrutinized the reliability of the expert testimony in light of 

the criteria for class certification and the current state of the 

evidence”);8 see also Ellis v. Costco Wholesale Corp., 657 

 8

 We have no occasion to examine whether there might be 

some variation between the Seventh and Eighth Circuit 
10 

F.3d 970, 982 (9th Cir. 2011) (citing the Supreme Court’s 

dictum in Dukes and stating, “In its analysis of Costco’s 

motions to strike [expert testimony at the class certification 

stage], the district court correctly applied the evidentiary 

standard set forth in Daubert”). Furthermore, we believe the 

Supreme Court’s dictum in Dukes buttresses our decision. See

Dukes, 131 S. Ct. at 2553-54 (“doubt[ing]” a district court’s 

“conclu[sion] that Daubert did not apply to expert testimony 

at the certification stage of class-action proceedings”). 

In the District Court, plaintiffs relied on expert 

testimony to produce most of their antitrust impact analyses 

and damages models, which they offered to demonstrate that 

common questions predominated over individual questions as 

required by Rule 23(b)(3). The court evaluated the expert 

testimony and, in part because it held the testimony “could 

evolve to become admissible evidence” at trial, determined 

 

formulations. Consistent with our holding here, both courts 

limit the Daubert inquiry to expert testimony offered to prove 

satisfaction of Rule 23’s requirements. See Zurn Pex, 644 

F.3d at 614 (approving the district court’s “focused Daubert

analysis which scrutinized the reliability of the expert 

testimony in light of the criteria for class certification and the 

current state of the evidence”); Messner, 669 F.3d at 814 

(“[A] Daubert hearing is necessary under American Honda

only if the witness’s opinion is ‘critical’ to class 

certification.”); Am. Honda, 600 F.3d at 816 (holding that a 

trial court must resolve challenges to an expert’s 

qualifications as well as “any challenge to the reliability of 

information provided by an expert if that information is 

relevant to establishing any of the Rule 23 requirements for 

class certification”). 
11 

that it satisfied Rule 23. 283 F.R.D. at 243-45 (quoting 

Behrend, 655 F.3d at 204 n.13). The court also stated that 

“[a]t the present stage of the litigation, the Court also rejects 

Ortho’s arguments regarding the reliability of plaintiffs’ 

damages models.” Id. at 243.9

Because Ortho consistently challenged the reliability 

of plaintiffs’ expert’s methodologies and the sufficiency of 

his testimony to satisfy Rule 23(b)(3), we leave it to the 

District Court on remand to decide in the first instance which 

of Ortho’s reliability attacks, if any, challenge those aspects 

of plaintiffs’ expert testimony offered to satisfy Rule 23 and 

then, if necessary, to conduct a Daubert inquiry before 

assessing whether the requirements of Rule 23 have been 

met.10

 9

 Plaintiffs contend Ortho waived the opportunity to bring 

a Daubert challenge. But in the trial court proceedings, Ortho 

consistently challenged the reliability of plaintiffs’ expert’s 

models and the sufficiency of his testimony to satisfy Rule 

23(b)(3). 

10 As we explained in Hydrogen Peroxide, 

[O]pinion testimony should not be uncritically 

accepted as establishing a Rule 23 requirement 

merely because the court holds the testimony 

should not be excluded, under Daubert or for 

any other reason. Under Rule 23 the district 

court must be “satisfied,” Falcon, 457 U.S. 

[147,] 161 [(1982)], or “persuaded,” [In re 

Initial Pub. Offerings Sec. Litig.], 471 F.3d 

[24,] 41 [(2d Cir. 2006)], that each requirement 

is met before certifying a class. Like any 
12 

IV. 

For the foregoing reasons, we will vacate the class 

certification order and remand for proceedings consistent with 

this opinion. 

 

evidence, admissible expert opinion may 

persuade its audience, or it may not. This point 

is especially important to bear in mind when a 

party opposing certification offers expert 

opinion. The district court may be persuaded by 

the testimony of either (or neither) party’s 

expert with respect to whether a certification 

requirement is met. Weighing conflicting expert 

testimony at the certification stage is not only 

permissible; it may be integral to the rigorous 

analysis Rule 23 demands. 

Hydrogen Peroxide, 552 F.3d at 323 (citations and footnote 

omitted). See also generally id. at 324 (“That weighing expert 

opinions is proper does not make it necessary in every case or 

unlimited in scope. . . . In its sound discretion, a district court 

may find it unnecessary to consider certain expert opinion 

with respect to a certification requirement, but it may not 

decline to resolve a genuine legal or factual dispute because 

of concern for an overlap with the merits.”).