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In re Blood Reagents Antitrust Litig.

United States Court of Appeals for the Third Circuit

February 12, 2014, Argued; April 8, 2015, Filed

No. 12-4067



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, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (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, 185 L. Ed. 2d 515 (2013) (Comcast), which reversed  [*185]  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

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 Ortho-Clinical Diagnostics, Inc., the appellant here. Plaintiffs claim 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, [**3]  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 [**4]  traditional blood reagents in the United States directly from Defendants Immucor, Inc., and Ortho-Clinical 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).

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783 F.3d 183 *; 2015 U.S. App. LEXIS 5630 **; 2015-1 Trade Cas. (CCH) P79,122; 91 Fed. R. Serv. 3d (Callaghan) 693

IN RE: BLOOD REAGENTS ANTITRUST LITIGATION Ortho Clinical Diagnostics, Inc., Appellant

Subsequent History: On remand at, Class certification granted by In re Blood Reagents Antitrust Litig., 2015 U.S. Dist. LEXIS 141909 (E.D. Pa., Oct. 19, 2015)

Motion denied by In re Blood Reagents Antitrust Litig., 2017 U.S. Dist. LEXIS 112090 (E.D. Pa., July 19, 2017)

Summary judgment granted, in part, summary judgment denied, in part by In re Blood Reagents Antitrust Litig., 2017 U.S. Dist. LEXIS 112091 (E.D. Pa., July 19, 2017)

Prior History:  [**1] On Appeal from the District Court for the Eastern District of Pennsylvania. (D.C. No. 2-09-md-02081). (Honorable Jan E. DuBois).

In re Blood Reagents Antitrust Litig., 283 F.R.D. 222, 2012 U.S. Dist. LEXIS 118727 (E.D. Pa., Aug. 22, 2012)


class certification, expert testimony, district court, antitrust, damages, plaintiffs', models, reliability, blood, certification, reagents, trial court, prices, rigorous

Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Special Proceedings, Class Actions, Certification of Classes, Appellate Review, De Novo Review, Questions of Fact & Law, Evidence, Burdens of Proof, Preponderance of Evidence, Prerequisites for Class Action, General Overview, Admissibility, Expert Witnesses, Daubert Standard, Expert Witnesses