Antitrust cases almost always involve expert witnesses who testify on a
wide range of issues, including market definition, market structure and
performance, and the existence and amount of damages. In addition,
antitrust counsel often consult with non-testifying experts to help identify
and develop case themes and defenses. The extensive use of experts,
together with Supreme Court precedent governing both the admissibility
and the definition of “expert” testimony, means that evidentiary issues
relating to experts arise in many, if not all, antitrust cases, and makes
antitrust litigation fertile ground for complex evidentiary rules.
For a general discussion of issues implicated by the use of expert
witnesses in antitrust cases, see Joseph Goldberg & James McClave, The
Presentation Of Expert Testimony In Price-Fixing Trials, 28 ANTITRUST
44 (2014); Kevin Caves & Hal Singer, Life After Comcast: The
Economist’s Obligation To Decompose Damages Across Theories Of
Harm, 28 ANTITRUST 90 (2014); James Langenfeld & Christopher
Alexander, Daubert and Other Gatekeeping Challenges, 25 ANTITRUST
21 (2011); Gregory G. Wrobel & Ellen Meriwether, Economic Experts:
The Challenges Of Gatekeepers And Complexity, 25 ANTITRUST 8
(2011); Christopher Yates & Belinda Lee, Getting The Best--And
AdmissibleTestimony From Your Experts, 25 ANTITRUST 13 (2011);
Lisa C. Wood, Cross-Examining An Expert Economist At Trial, 20
ANTITRUST 80 (2005); Robert A. Milne & Jack E. Pace III, The Scope Of
Expert Testimony On The Subject Of Conspiracy In A Sherman Act Case,
15 ANTITRUST 36 (2003); Christopher B. Hockett et al., Revisiting the
Admissibility of Expert Testimony in Antitrust Cases, 15 ANTITRUST 7
(2001); Andrew I. Gavil, Defining Reliable Forensic Economics in the
Post-Dauber t/Kumho Tire Er a: Case Studies from Antitrust,
57 WASH. & LEE L. REV. 831 (2000); Andrew I. Gavil, After Daubert:
Discerning the Increasingly Fine Line Between the Admissibility and
Sufficiency of Expert Testimony in Antitrust Litigation, 65 ANTITRUST
L.J. 663 (1997); Christopher B. Hockett & Frank M. Hinman,
Admissibility of Expert Testimony in Antitrust Cases: Does Daubert
Raise a New Barr ier to Entry for Economists?, 10 ANTITRUST (1996).
The following Federal Rules are relevant to testimony by experts:
174 Antitrust Evidence Handbook
Federal Rule of Evidence 701. Opinion Testimony by
Lay Witnesses
If a witness is not testifying as an expert, testimony in the
form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witne ss’s testimony
or to determining a fact in issue; and
(c) not based o n scientific, technical, or other specialized
knowledge within the scope of Rule 702.
Federal Rule of Evidence 702. Testimony by Expert
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in t he form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trie r 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 reliab ly applied the principles and methods
to the facts of the case.
Federal Rule of Evidence 703. Bases of an Expert’s
Opinion Testimony
An expert may base an opinion on facts or data in the case that
the expert has been made aware of or personally observed. If
experts in the particular field would reasonably rely on those
kinds of facts or data in forming an opinion on the subject,
they need not be admissible for the opinion to be admitted.
But if the facts or data would other wise be inadmissible, the
proponent of the opinion may disclose them to the jury only if
their probative value in helping the jury evaluate the opinion
substantially outweighs their prejudicial effect.
Experts 175
Federal Rule of Evidence 704. Opinion on an Ultimate
(a) In GeneralNot Auto matically Objectionable. An
opinion is not objectionable just because it embraces an
ultimate issue.
(b) Exception. In a cr iminal case, an expert witness must not
state an opinion about whether the defendant did or did
not have a mental state or condition that constitutes an
element of the crime charged or of a defense. Those
matters are for the trier of fact alone.
Federal Rule of Evidence 705. Disclosing the Facts or
Data Underlying an Expert’s Opinion
Unless the court orders otherwise, an exp ert may state an
opinionand give the reasons for itwithout first testifying
to the underlying facts or data. But the expert may be req uired
to disclose those facts or data on cross-examination.
Federal Rule of Evidence 706. Court-Appointed
(a) Appointment Process. On a party’s motion or on its
own, the court may order the parties to show cause why
expert witnesses should not be appointed and may ask the
parties to submit nomi nations. The court may appoint any
expert that the parties agree on and any of its own
choosing. But the court may only appoint someone who
consents to act.
(b) Expert’s Ro le. The court must inform the expert of the
expert’s duties. The court may do so in writing and have a
copy filed with the clerk or may do so orally at a
conference in which the parties have an opportunity to
participate. The expert:
(1) must advise the parties of any findings the expert
(2) may be deposed by any party;
(3) may be called to testify by the court or any party; and
(4) may be cross-examined by any party, including the
party that called the expert.

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