                                                   [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                             FILED
                         FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                  _____________           MARCH 9, 2011
                                                            JOHN LEY
                                                              CLERK
                                   No. 09-15798
                                  _____________

                 D.C. Docket No. 08-00889-CV-T-33-AEP


NANCY SHER,
individually and on behalf of all others
similarly situated,
JAMES R. ABEL,
individually and on behalf of all others
similarly situated,
CAROL A. CALECA,
individually and on behalf of all others
similarly situated,
LOUIS GIOCONDO,
individually and on behalf of all others
similarly situated,
BETTY L. KEY,
individually and on behalf of all others
similarly situated,

                                                  Plaintiffs-Appellees,
LINDA SWARTOUT,
individually and on behalf of all others
similarly situated, et al.,

                                                  Consolidated-Plaintiffs,
                                             versus

RAYTHEON COMPANY,

                                                                   Defendant-Appellant.
                                        ____________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                                    ____________

                                       (March 9, 2011)

Before EDMONDSON, HILL and ALARCON,* Circuit Judges.

HILL, Circuit Judge:

       In this case alleging environmental contamination, defendant Raytheon

Company (Raytheon) appeals from an interlocutory order granting class-action

certification under Fed. R. Civ. P. 23(f). The plaintiffs are Nancy Sher, James R.

Abel, Carol A. Caleca, Louis Ciocondo, Betty L. Key, (the Plaintiffs). The

Plaintiffs purport to represent a class consisting of all owners of real property

impacted by the alleged contamination. This appeal pertains to only the grant of

class certification by the district court, not the merits of the case.

       We hold that the district court erred as matter of law by not sufficiently

evaluating and weighing conflicting expert testimony presented by the parties at


       *
        Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth Circuit, sitting
by designation.

                                                2
the class certification stage.1 See Vega v. T-Mobile USA, Inc., 564 F.3d 1256,

1264 (11th Cir. 2009). We conclude that facts have not been determined sufficient

to support certifying a class at this time. Thus, the district court, in its Rule 23

analysis, erred as a matter of law in granting class certification. See Klay v. United

Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir. 2004).

                                                 I.

       The Plaintiffs allege that Raytheon, through improper disposal and/or

storage of hazardous waste at its St. Petersburg, Florida facility, is responsible for

the release of toxic waste into the groundwater of the surrounding neighborhoods.

The parties presented brief testimony of the Plaintiffs. In all, the district court

held a three-day evidentiary hearing on the Plaintiffs’ motion for class

certification.

       To demonstrate the predominance of common issues under Rule 23(b)(3),

the Plaintiffs’ groundwater expert, Dr. Philip Bedient, identified the impacted area

as a toxic underground plume stretching approximately one mile long and 1.7

miles wide from the Raytheon facility.2

       In an effort to prove that the claims of the Plaintiffs for compensatory and

       1
           By so holding, we need not discuss any remaining issues.
       2
         This plume is alleged to affect 1300 different parcels, seventeen different types of
property owned by over 1000 property owners in ten different St. Petersburg neighborhoods.

                                                 3
punitive damages for property injury could be appropriately resolved in a single

class action, the Plaintiffs presented the affidavit of their damages expert, Dr. John

A. Kilpatrick. He stated that he could develop a hedonic multiple regression

model to determine diminution-in-value damages without resorting to an

individualized consideration of each of the various properties.

      In rebuttal, Raytheon produced its groundwater expert, Dr. James Mercer,

challenging Dr. Bedient’s methodology for defining the impacted area, or putative

class, as “inconsistent with applicable professional standards.” Dr. Mercer

testified also that Dr. Bedient’s area encompassed many properties on which no

contamination had been detected at all.

      Raytheon introduced its damages expert, Dr. Thomas O. Jackson. Dr.

Jackson’s report stated that the Plaintiffs’ expert’s “proposed method of analysis

of property value diminution using mass appraisal/regression modeling would be

unacceptable for this purpose, and would not eliminate the need to evaluate each

property in the proposed class area on an individual basis.”

      In its order granting class certification to Plaintiffs, the district court noted

that “[t]he expert reports, of course, differ markedly as to the size of the proposed

class area; whether evidence of contamination exists within that area; and whether

the alleged diminution in value to the properties in the proposed class area can be

                                           4
determined on a class-wide basis.”

      Yet, later in the order granting class certification, the district court stated:

      [Raytheon] spent a significant amount of time during the Hearing
      attempting to prove that Plaintiffs’ experts analyses and opinions are
      too factually and scientifically deficient to support class certification.
      As a threshold matter, the Court finds that it is not necessary at this
      stage of the litigation to declare a proverbial winner in the parties’
      war of the battling experts or dueling statistics and chemical
      concentrations . . . This type of determination would require the
      Court to weigh the evidence presented and engage in a Daubert style
      critique of the proffered experts qualifications, which would be
      inappropriate . . . At this stage of the litigation, therefore an inquiry
      into the admissibility of Plaintiffs’ proposed expert testimony as set
      forth in Daubert would be inappropriate, because such an analysis
      delves too far into the merits of Plaintiffs’ case.

(Emphasis added).3 Raytheon appeals the certification of the Plaintiffs’ class

under Fed. R. Civ. Proc. 23(f).

                                               II.

      We review a district court’s grant of class certification for abuse of

discretion. See Vega, 564 F.3d at 1264. In order to exercise the discretion

reposing in the district court, the district judge must determine the facts militating

in favor of or inappropriate to class treatment. “A district court abuses its

discretion if it applies an incorrect legal standard, follows improper procedures in

making the determination, or makes findings of fact that are clearly erroneous.”


      3
          See Daubert v. Merrell Dow Pharms., Inc., 113 S. Ct. 2786 (1993).

                                               5
Id.

                                          III.

      A district court must conduct a rigorous analysis of the Rule 23

prerequisites before certifying a class. Gen. Tel. Co. v. Falcon, 102 S. Ct. 2364,

2372 (1982). “The burden of proof to establish the propriety of class certification

rests with the advocate of the class.” Valley Drug Co. v. Geneva Pharms., Inc.,

350 F.3d 1181, 1187 (11th Cir. 2003).

      “Although the trial court should not determine the merits of the plaintiffs’

claim at the class certification stage, the trial court can and should consider the

merits of the case to the degree necessary to determine whether the requirements

of Rule 23 will be satisfied.” Id. at 1188 n.15; see Coopers & Lybrand v. Livesay,

98 S. Ct. 2454, 2458 n.12 (“[t]he class determination generally involves

considerations that are ‘enmeshed in the factual and legal issues comprising the

plaintiff’s cause of action’ . . . ‘The more complex determinations required in Rule

23(b)(3) class actions entail even greater entanglement with the merits.’”)

(emphasis and citations omitted); see Blades v. Monsanto Co., 400 F.3d 562, 575

(8th Cir. 2005) (where appellants argued on appeal that, in ruling on class

certification, the district court improperly resolved disputes between the parties’

experts that went to the merits of the case, the appeals court found that a district

                                           6
court may be required to resolve expert disputes in factual settings at the class

certification stage).

                                             IV.

       We consider the Seventh Circuit’s opinion in American Honda Motor Co.,

Inc., 600 F.3d 813 (7th Cir. 2010), persuasive. The issue before the Seventh

Circuit in American Honda was whether or not the district court should have

conclusively ruled on the admissibility (versus the weight of, as in our case) of

expert opinion prior to certifying the class.

       In American Honda, the Seventh Circuit found that “when an expert’s report

or testimony is critical to class certification, as it is here . . . , a district court must

conclusively rule on any challenge to the expert’s qualifications or submissions

prior to ruling on a class certification motion.” Id. at 815-16. The American

Honda court found that, if the situation warrants, the district court must perform a

full Daubert analysis before certifying the class. Id. at 816. “A district court is

the gatekeeper. It must determine the reliability of the expert’s experience and

training as well as the methodology used. Id. “The [district] court must also

resolve any challenge to the reliability of information provided by an expert if that

information is relevant to establishing any of the Rule 23 requirements for class

certification.” Id. We agree.

                                              7
      Here, in its Rule 23 analysis, we find that the district court erred as a matter

of law by not sufficiently evaluating and weighing conflicting expert testimony on

class certification. Id.; United Healthgroup, Inc., 376 F.3d at 1096. It was error

for the district court to decline to declare a proverbial, yet tentative winner. The

Plaintiffs are required to prove, at the class certification stage, more than just a

prima facie case, i.e., more than just a “pretty good case.” See Valley Drug Co.,

350 F.3d at 1187.

      Here the district court refused to conduct a Daubert-like critique of the

proffered experts’s qualifications. This was error. As we have noted, a district

court must make the necessary factual and legal inquiries and decide all relevant

contested issues prior to certification. American Honda, 600 F.3d at 817. The

district court has not determined facts, from the often conflicting evidence,

sufficient to determine whether class certification is or is not appropriate. The

court erred in granting class certification prematurely. “Tough questions must be

faced and squarely decided.” Id. (citation omitted). Such tough questions were

side-stepped by the district court in this case. That was error.

                                           V.

      We have carefully reviewed the record in this case and the arguments of

counsel. We conclude that, based upon the record before us, there is not enough

                                           8
evidence to support a class at this stage of the litigation. The Plaintiffs have failed

to carry their burden of proof. See Valley Drug Co., 350 F.3d at 1187.

Accordingly, we conclude that the district court erred by not weighing conflicting

expert testimony presented by both parties at the class certification stage. We

vacate the district court order certifying a class, and remand for further

proceedings consistent with this opinion. In so holding, we express no opinion as

to whether class certification is or is not appropriate in this case.

      VACATED and REMANDED for further proceedings consistent with this

opinion.




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