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Petitions of the day

The petitions of the day are:


Issues: (1) Whether this court should resolve the split in the circuit courts of appeals regarding whether, how, and under what circumstances Daubert v. Merrell Dow Pharmaceuticals must be satisfied for a class to be certified under Federal Rule of Civil Procedure 23 when challenged expert testimony is at issue, particularly in light of this court leaving issues open in Tyson Foods, Inc. v. Bouaphakeo; (2) whether this court’s rulings in Amchem Products, Inc. v. Windsor and Comcast Corp. v. Behrend require the district court, before approving the National Football League head trauma settlement under FRCP 23, to have assessed the disputed scientific propositions justifying the settlement under the Daubert standard, given the existence of (a) material disputes about the credibility of those scientific propositions, (b) unrequited requests for adversarial discovery and evidentiary hearings, as well as the fact that (c) the “individual stakes are high and disparities among class members great,” Amchem; and (3) whether it is fundamentally wrong and an abdication of fiduciary duties to absent class members under FRCP 23 for the lower courts to have approved the NFL’s head trauma class action settlement where there was no adversarial discovery on, and no definitive assessments about, the disputed “scientific” propositions regarding head trauma that were the basis for vastly disparate relief to class members along with a comprehensive release of claims.


Issue: Whether the approval of a global class-action settlement of claims against the National Football League stemming from current and future brain injuries is consistent with Federal Rule of Civil Procedure 23’s adequacy-of-representation requirement and due process.

Recommended Citation: Kate Howard, Petitions of the day, SCOTUSblog (Nov. 1, 2016, 11:27 PM),