Evaluating the Scientific Validity of A Damages Model

• Pages: 209-218

CHAPTER 7

EVALUATING THE SCIENTIFIC VALIDITY OF A

DAMAGES MODEL

Expert testimony is typically used by both plaintiffs and defenda nts in

antitrust cases to address a wide range of important economic issues,

including the existence of antitrust injury and the quantum of damages.

This chapter will discuss the legal standards that govern expert testimony

related to antitrust damages, different ways in which an expert’s damages

analysis may be subject to challenge, issues that may lead to the exclusion

of an expert’s testimony, and best practices for experts and counsel to

avoid exclusion.

A. Rules Governing Expert Witness Testimony

The use of expert witnesses in cases brought in federal court is

governed by Article VII of the Federal Rules of Evidence. Rule 702 (as

amended December 1, 2011) specifies the basic criteria for the

admissibility of expert testimony:

A witness who is qualified as an expert by knowledge, skill, experience,

training, or educatio n may testify in the form of an opinion o r otherwise

if: (a) the expert’s scientific, technical, or other specialized knowledge

will help the trier of fact to understand the evidence or to determine a

fact in issue; (b) the testimony is based on sufficient facts or data; (c) the

testimony is the product of reliable principles and methods; and (d) the

expert has reliably applied the principles and methods to the facts of the

case.1

Experts who are expected to testify at trial must provide a written report

that discloses all of the opinions that may be offered at trial and the basis

1. See FED. R. EVID. 702. According to the Committee Notes on Rules (2011

Amendment): “The la nguage of Rule 702 has been amended as part of the

restyling of the Evidence Rules to make them more easily understood and

to make style and ter minology consiste nt throughout the rule s. These

changes are intended to be stylistic only. There is no intent to change any

result in any ruling on evidence admissibility.” Rule 702 was previously

amended December 1, 2000.

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