Experts

• Pages: 163-197

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CHAPTER V

EXPERTS

Antitrust cases almost always involve expert witnesses who testify on a

wide range of issues—market definition, market structure and

performance, and the existence and amount of damages. In addition,

antitrust counsel often consult with nontestifying experts. The extensive

use of experts, together with the advent of Supreme Court precedent

governing both the admissibility of expert testimony and the definition of

“expert” testimony, means that a wide range of evidentiary issues

relating to experts arise in many, if not all, antitrust cases, and makes

antitrust litigation fertile ground for application of complex evidentiary

rules.

For a general discussion of issues involved when experts are

used in antitrust cases, see Christopher B. Hockett, Geraldine Alexis, and

Christina Wheeler, Revisiting the Admissibility of Expert Testimony in

Antitrust Cases, 15 Antitrust, at 7 (Summer 2001); Andrew I. Gavil,

Defining Reliable Forensic Economics in the Post-Daubert/Kumho Tire

Era: 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

and Frank M. Hinman, Admissibility of Expert Testimony in Antitrust

Cases: Does Daubert Raise a New Barrier to Entry for Economists?, 10

Antitrust, at 40 (Summer 1996).

The following Federal Rules are relevant to issues involving experts:

Federal Rule of Evidence 701. Opinion Testimony by Lay Witnesses

If the witness is not testifying as an expert, the witness’ testimony in

the form of opinions or inferences is limited to those opinions or

inferences which are (a) rationally based on the perception of the

witness; (b) helpful to a clear understanding of the witness’

testimony or the determination of a fact in issue; and (c) not based

on scientific, technical, or other specialized knowledge within the

scope of Rule 702.

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Federal Rule of Evidence 702. Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the

trier of fact to understand the evidence or to determine a fact in

issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the form of

an opinion or otherwise, if (1) the testimony is based upon sufficient

facts or data, (2) the testimony is the product of reliable principles

and methods, and (3) the witness has applied the principles and

methods reliably to the facts of the case.

Federal Rule of Evidence 703. Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases

an opinion or inference may be those perceived by or made known

to the expert at or before the hearing. If of a type reasonably relied

upon by experts in the particular field in forming opinions or

inferences upon the subject, the facts or data need not be admissible

in evidence in order for the opinion or inference to be admitted.

Facts or data that are otherwise inadmissible shall not be disclosed

to the jury by the proponent of the opinion or inference unless the

court determines that their probative value in assisting the jury to

evaluate the expert’s opinion substantially outweighs their

prejudicial effect.

Federal Rule of Evidence 704. Opinion on Ultimate Issue

(a) Except as provided in subdivision (b), testimony in the form of

an opinion or inference otherwise admissible is not

objectionable because it embraces an ultimate issue to be

decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or

condition of a defendant in a criminal case may state an opinion

or inference as to whether the defendant did or did not have the

mental state or condition constituting an element of the crime

charged or of a defense thereto. Such ultimate issues are matters

for the trier of fact alone.

Experts 165

Federal Rule of Evidence 705. Disclosure of Facts or Data Underlying

Expert Opinion

The expert may testify in terms of opinion or inference and give

reasons therefor without first testifying to the underlying facts or

data, unless the court requires otherwise. The expert may in any

event be required to disclose the underlying facts or data on

cross-examination.

Federal Rule of Evidence 706. Court-Appointed Experts

(a) Appointment. The court may on its own motion or on the

motion of any party enter an order to show cause why expert

witnesses should not be appointed, and may request the parties

to submit nominations. The court may appoint any expert

witnesses agreed upon by the parties, and may appoint expert

witnesses of its own selection. An expert witness shall not be

appointed by the court unless the witness consents to act. A

witness so appointed shall be informed of the witness’ duties by

the court in writing, a copy of which shall be filed with the

clerk, or at a conference in which the parties shall have

opportunity to participate. A witness so appointed shall advise

the parties of the witness’ findings, if any; the witness’

deposition may be taken by any party; and the witness may be

called to testify by the court or any party. The witness shall be

subject to cross-examination by each party, including a party

calling the witness.

(b) Compensation. Expert witnesses so appointed are entitled to

reasonable compensation in whatever sum the court may allow.

The compensation thus fixed is payable from funds which may

be provided by law in criminal cases and civil actions and

proceedings involving just compensation under the Fifth

Amendment. In other civil actions and proceedings the

compensation shall be paid by the parties in such proportion and

at such time as the court directs, and thereafter charged in like

manner as other costs.

(c) Disclosure of appointment. In the exercise of its discretion, the

court may authorize disclosure to the jury of the fact that the

court appointed the expert witness.