Law360, New York (February 09, 2012, 6:45 PM ET) -- In the health care antitrust world,
the Federal Trade Commission Evanston case, involving a retrospective attack on the
consummated merger between Evanston Northwestern and Highland Park hospitals, is an
important government enforcement benchmark. Now in a private antitrust class action, the
Evanston merger continues to make important law, both with respect to class certification
issues and the analysis of antitrust harm in the private class context when differential
pricing is present.
Some commentators have been quick to hail the U.S. Supreme Court's landmark decision in
Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541 (2011), as a broad win for all class action
defendants. In particular, the court's endorsement of the evaluation of merits issues at the
class certification stage — including dicta favoring the exclusion of unreliable expert
testimony submitted at the class certification stage pursuant to Fed. R. Evid. 702 and
Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993) — has been portrayed as
imposing additional obstacles to certification of plaintiff classes.
The Seventh Circuit's recent opinion in Messner v. Northshore University HealthSystem, No.
10-2514 (7th Cir. Jan. 13, 2012), suggests that these developments may not inevitably
spell doom for class certification. Following Dukes, the decision in Messner approves
intensive examination of merits issues at the class certification stage, and highlights the
critical role that reliable expert testimony plays in class certification by mandating Daubert
review at the class certification stage when expert opinions are material to the decision. In
doing so, however, the Seventh Circuit demonstrated that the Dukes decision does not
change the critical role of the predominance inquiry in the certification of Fed. R. Civ. P. 23
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