Bench Memos

Law & the Courts

Dispute over Use of Inadmissible Opinion Testimony for Class Certification

In a strong dissent from denial of rehearing en banc yesterday, Ninth Circuit judge Carlos Bea, joined by four of his colleagues, objected to a panel ruling (in Sali v. Corona Regional Medical Center) that, as Bea summed it up, “accepted the undisputedly inadmissible opinion of plaintiffs’ paralegal … that the plaintiffs have damages typical of the class sought to be certified.” (Emphasis in original.) Bea argues that the panel’s holding that opinion testimony need not be admissible in order to be used at the class-certification stage “is contrary to our own precedent [and] also contrary to decisions of four other circuits and clear Supreme Court guidance.”

Look for this one to get the attention of the Supreme Court if a certiorari petition is filed.

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