Hunton Employment & Labor Perspectives

In Corona Regional Medical Center v. Sali, No. 18-1262 (May 3, 2019), the Supreme Court recently dismissed a petition for a writ of certiorari that would have resolved a circuit split as to whether expert testimony must be admissible to be considered at the class certification stage.  As a result, the Ninth Circuit remains one of only two circuits that have ruled workers are not required to submit admissible evidence to support a motion for class certification.  In contrast, the Second, Third, Fifth, and Seventh Circuits have all held that expert testimony must be admissible to be considered at the class certification stage.

Case Background

The Corona matter involved California wage and hour claims brought against a hospital in Southern California operated by Corona Regional Medical Center and UHS of Delaware, Inc. (together, “Corona”).   Marlyn Sali and Deborah Spriggs (“Plaintiffs”), former Registered Nurses (“RNs”) at Corona, brought a putative class action alleging that they and other RNs (a) were not paid all wages at their regular rate of pay; (b) were not paid time and a half and/or double time for all overtime hours worked; and (c) were denied meal and rest periods.  Based on these claims, Plaintiffs moved for class certification.

The district court denied the motion to certify as to all of the proposed classes, holding in relevant part that Plaintiffs did not meet their burden of demonstrating “typicality” under Federal Rule of Civil Procedure 23(a).  To meet the typicality requirement, Plaintiffs needed to establish, among other things, that the injuries allegedly suffered by Plaintiffs were similar to the purported injuries of the putative class members.

The only evidence Plaintiffs offered to show they had been injured (and that their injuries were typical of class injuries) was a declaration submitted by a paralegal who was employed by the law firm that represented Plaintiffs.  Corona paid RNs an hourly wage based on the time they punched in and out, rounded to the nearest quarter hour. To argue that the rounding-time policy negatively affected Plaintiffs, the paralegal reviewed Sali and Spriggs’ time and payroll records and compared the rounded times with their actual clock-in and clock-out times for a random sample of their timesheets.

The court declined to consider the declaration because it did not offer any admissible evidence of Plaintiff’s injuries.  In striking the declaration, the court reasoned that:

1. The declarant lacked personal knowledge of the data in the spreadsheets and could not attest to the fact that the data accurately represented Plaintiff’s employment records.
2. Further, the paralegal offered opinion testimony that was improper because he did not qualify as an expert witness.
3. The declaration also required an analysis of raw data in order to reach the cumulative conclusions presented. However, the declarant did not have the qualifications to conduct this type of technical or specialized analysis.

Plaintiffs challenged the district court’s ruling on appeal.  The Ninth Circuit held that a district court cannot reject evidence submitted in support of class certification solely on the basis that the evidence is inadmissible at trial.

The Enduring Circuit Split and Its Impact on Employers

The Ninth Circuit ultimately declined to rehear the case en banc.  In an opinion dissenting from the denial of rehearing, the Honorable Judge Carlos T. Bea, joined by Circuit Judges Jay S. Bybee, Consuelo M. Callahan, Sandra S. Ikuta, and Mark J. Bennett, argued that the new rule accepting the inadmissible opinion of Plaintiff’s paralegal was “contrary to our own precedent” and “also contrary to decisions of four other Circuits and clear Supreme Court guidance.”

The dissent cited to decisions issued in the Second, Third, Fifth, and Seventh Circuits, which all require that expert testimony be admissible to be considered at the class certification stage.  Notably, the Sixth and Eleventh Circuits have also reached the same conclusion, albeit in unpublished rulings.  Moreover, the dissenting judges disagreed with the Ninth Circuit’s characterization in Corona that the class certification stage was a “preliminary” step in the litigation.  The dissent argued that, to the contrary, class certification tended to be a dispositive step that demanded a more stringent evidentiary standard.

Since in many cases the issue of class certification is often a critical factor in determining whether a matter will resolve, the pro-plaintiff evidentiary standard presented by the Ninth Circuit may present additional hurdles that employers in the Ninth Circuit must face when opposing class certification, as compared to employers in the majority of circuits that have considered the same issue.  Time will tell whether this decision will, as the dissent argues, place the Ninth Circuit yet again on the “wrong side of a lopsided circuit split.”