The Colorado Supreme Court made three major determinations in Jackson v. Unocal, 09SC668, slip op. (October 31, 2011). First, the court decided that a party seeking class certification does not have a preponderance of the evidence burden of proof. This decision is, largely, based on the distinctions between the federal rules of civil procedure and the Colorado rules of civil procedure governing class certification. In Colorado, class certification, according to the state high court is merely a case management tool for the trial court. A Colorado trial court has broad discretion in deciding whether to certify a class. A trial court must rigorously analyze the evidence in deciding to grant class certification. Second, a trial court may analyze substantive legal and factual issues for the purpose of making a determination whether to certify a class, even where such issues overlap with the merits. A trial court’s class certification may not prejudice the merits of the case, i.e., a trial court may not decide whether plaintiff’s overall claim is valid just whether plaintiff or the class representative satisfy the requirements for class certification. Third, the court refused to require trial court’s to hold Schreck (or Daubert) type hearings regarding expert witness testimony in support of or in contravention of class certification. Expert testimony may be considered by the trial court to decide to class certification and the trial court may not decide whether the expert testimony is ultimately admissible or determinative of the merits of a case.
The full opinion may be found at the following link: http://www.courts.state.co.us/Courts/Supreme_Court/opinions/2009/09SC668.pdf.
