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Antitrust Law: Research Problem #2

A Guide to the Laws and Decisions which Restrict Restraint on Trade

Research Problem #2

Tune Party has initiated its suit, and it wants you to bring in an expert economist to testify that the uniform prices of its competitors are the consequence of illegal collusion. You do a bit of googling, and uncover a self-proclaimed expert named Dr. Fronkenstien, an economics professor at the local community college. How do you determine if Dr. Fronkenstien is fit to testify in an antitrust trial?

Research Strategy

1) Find out whether antitrust has any special requirements for its expert witnesses. Consider starting with basic secondary material, such as a practice guide. If you require more detail, move onto a treatise from there. Otherwise, begin to look at cases where the expert standard has been applied. Find those cases which have been most heavily cited by using the shepardizing function on your legal service. You might also consider looking at law blogs to find out whether there have been any recent shifts in the law.

 

2)  Find out whether Dr. Fronkenstien meets those standards. Start by googling him, and reading over his webpage. Then segway to JSTOR to look at his published articles, and number of citations. Finally, check your legal service (Westlaw, LexisNexis, Bloomberg) to find out what other antitrust cases he has testified in, and what sort of success he has had.

Helpful Resources

Contained below are a couple of resources which can be found on Westlaw that might be helpful for a researcher:
 
Here is an article from the American Jurisprudence Trials publication on litigating antitrust cases. Section 102 of that publication discusses finding an expert witness. And here is a law review article which discusses the shifting standard for expert witnesses in antitrust cases. These are the sort of secondary sources that help a researcher develop a basis for selecting their own expert witness. 

Answer

Daubert v. Merrell Dow Pharmaceuticals, Inc is a Supreme Court case from 1993 which reevaluated the standard for admitting expert scientific testimony under the Federal Rule of Evidence 702. 509 U.S. 579. The Court moved away from a standard of general acceptance in the pertinent scientific field, and towards a standard of reliability and relevance. Id at 597. To help determine whether an expert’s testimony was reliable and relevant the court looked to whether it was based on scientifically valid principles. Id. In Kumho Tire Co. v. Carmichael the court clarified its decision in Daubert, by explaining that it was meant to apply to all forms of expert testimony, not just scientific testimony. 527 U.S. 137 (1999). That means it applies to the kind of expert an antitrust lawyer would seek to introduce for testimony -- likely an economic expert. Daubert has served to make it difficult to establish an antitrust claim. The Daubert standard is substantially higher than that which it replaced -- the ‘general acceptance’ standard. It has a disproportionate impact on antitrust claims which depend on economic theory. Since economics is a soft science it will often be considered unreliable, inevitably causing expert testimony to be kept of trials.