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Insight Equity v. Transitions Optical Inc.

United States District Court, D. Delaware

May 9, 2017

Insight Equity d/b/a Vision-Ease Lens Worldwide Plaintiff,
v.
Transitions Optical, Inc., Defendant.

          Alessandra Glorioso, Esq., Robert W. Mallard, Esq., Dorsey & Whitney LLP, Wilmington, Del.; Michael A. Lindsay, Esq., George G. Eck, Esq., F. Matthew Ralph, Esq. (argued), Andrew Brantingham, Esq., Dorsey & Whitney LLP, Minneapolis, Minn.; H. Alex Iliff, Dorsey & Whitney LLP, New York, N.Y., attorneys for Plaintiff.

          Chad M. Shandler, Esq., Katharine C. Lester Mowery, Esq., Richard, Layton, & Finger, PA., Wilmington, Del.; Jonathan M. Jacobson, Esq. (argued), Chul Pak, Esq., Jeffrey C. Bank, Esq., Daniel Weick, Esq., Wilson, Sonsini Goodrich & Rosati Professional Corp., New York, N.Y.; Lisa A. Davis, Esq., Wilson, Sonsini Goodrich & Rosati Professional Corp., Palo Alto, Cal., attorneys for Defendant.

          MEMORANDUM OPINION

          Andrews, District Judge

         Plaintiff Vision-Ease has sued its competitor, Defendant Transitions Optical, under federal antitrust law.[1] Both Vision-Ease and Transitions Optical are in the business of selling photochromic lenses. Photochromic lenses change from clear to tinted and back again depending on the wearer's environment.

         To prove Defendant has violated antitrust law by holding monopoly power and engaging in anti-competitive behavior, Plaintiff has proffered the expert testimony of Kenneth Baseman. To prove the opposite, Defendant has proffered the testimony of Dr. Lauren Stiroh. Plaintiff also relies on Donald Nicholson to calculate damages.

         Both parties have moved to strike portions of the other's experts' testimony. (D.I. 46; D.I. 40). On November 3-4, 2016, 1 held a Daubert hearing on these motions and took testimony from Mr. Baseman and Dr. Stiroh. (D.I. 157; D.I. 158).

         I. Legal Standard

         "[T]he district court acts as a gatekeeper" to ensure that expert testimony is reliable and helpful. Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003). "The primary locus of this obligation is [Federal Rule of Evidence] 702...." Daubert v. Merrell Dow Pharma., Inc., 509 U.S. 579, 589 (1993). It reads:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or 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.

Fed. R. Evid. 702.

         Rule 702, as amended in 2000, codified the Supreme Court's holding in Daubert. Calhoun v. Yamaha Motor Corp., 350 F.3d 316, 320 (3d Cir. 2003). The Daubert Court rejected the then widely used Frye test. See Daubert, 509 U.S. at 589. The Frye test required an expert's theory or process be "generally accepted as reliable in the relevant scientific community." Id. at 584 (internal quotation marks omitted). The test was seen as imposing too "rigid" a requirement. See Id. at 588. This rigidity was "at odds with the liberal thrust of the Federal Rules and their general approach of relaxing traditional barriers to opinion testimony." Id. at 588 (internal quotation marks omitted).

         A. Burden of Proof

         Daubert replaced the Frye test with a "trilogy" of requirements: (1) qualification, (2) reliability, and (3) fit. Schneider, 320 F.3d at 404. My determination that proffered testimony complies with these prerequisites is governed by Federal Rule of Evidence 104(a). Daubert, 509 U.S. at 592. As such, I must find Daubert's trilogy of requirements is met by a preponderance of the evidence. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994).

         On the one hand, this showing requires the party proffering expert testimony do more than make a prima facie case of reliability. Id. at 743. On the other hand, the "evidentiary requirement of reliability is lower than the merits standard of correctness." Id. The proffering party does not "have to prove their case twice-they do not have to demonstrate to the judge by a preponderance of the evidence that the assessments of their experts are correct, they only have to demonstrate by a preponderance of evidence that their opinions are reliable." Id. at 744.

         B. Qualification

         The first prerequisite, qualification, "refers to the requirement that the witness possess specialized expertise." Schneider, 320 F.3d at 404. While the language of Daubert is couched in terms of scientific expertise and knowledge, the qualification requirement as well as the fit and reliability requirements are imposed on other technical or specialized knowledge. Calhoun, 350 F.3d at 321 (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999)).

         The Third Circuit has interpreted the qualification requirement "liberally" and has "eschewed imposing overly rigorous requirements of expertise...." Paoli, 35 F.3d at 741. Generalized qualifications are sufficient, id., but "more specific knowledge is required to support more specific opinions, " Calhoun, 350 F.3d at 322. In this case, the experts' qualifications are not, nor could they reasonably be, contested.

         C. Reliability

         "[A]n expert's testimony is admissible so long as the process or technique the expert used in formulating the opinion is reliable." Paoli, 35 F.3d at 742. Reliability does not require certainty. Daubert, 509 U.S. at 590, but does require "validity, " Paoli, 35 F.3d at 742.

         As with all of the Daubert requirements, I have a gatekeeping role to play in assessing the reliability of the expert testimony. "When there is a serious question of reliability of evidence, it is appropriate for the court to exercise to some degree an evidentiary screening function." Paoli, 35 F.3d at 743 (quoting United States v. Downing, 753 F.2d 1224, 1240 n. 21 (3d Cir. 1985)).

         That being said, the Third Circuit has warned that "the reliability requirement must not be used as a tool by which the court excludes all questionably reliable evidence." Id. at 744. An expert's opinion must be founded on good grounds, not perfect ones. Id. I can conclude there are good grounds for the opinion even if I "think[]there are better grounds for some alternative conclusion" or that the expert's methodology "has some flaws such that if they had been corrected, the scientist would have reached a different result." Id. The Third Circuit has directed that a "judge frequently should find an expert's methodology helpful even when the judge thinks that the expert's technique has flaws sufficient to render the conclusions inaccurate." Id. at 744-45.

         D. Fit

         Fit is the gravamen of the Daubert challenges at issue in this case. The same liberalness in evaluating reliability applies in evaluating fit. Id. at 745. "Once again, [the Third Circuit] emphasize[s] that the standard is not that high." Id. Fit speaks to "the proffered connection between the scientific research or test result to be presented and particular disputed factual issues in the case." Id. at 743 (quoting Downing, 753 F.2d at 1237).

         Put in the terms of Rule 702, fit asks whether the proffered testimony is sufficiently helpful. See Daubert, 509 U.S. at 591 ("Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful." (citation omitted)). "[H]elpfulness requires more than bare logical relevance, but there is a strong preference for admission." Paoli, 35 F.3d at 745.

         A significant concern in evaluating fit is whether there is mismatch between the expert's technique and the issues in the case. "[V]alidity for one purpose is not necessarily [] validity for other, unrelated purposes." Daubert, 509 U.S. at 591. "Thus, even if an expert's proposed testimony constitutes scientific knowledge, his or her testimony will be excluded if it is not scientific knowledge for purposes of the case." Paoli, 35 F.3d at 743.

         The Supreme Court explained this mismatch concern with a hypothetical. A party seeking to introduce expert testimony on the phases of the moon may appropriately do so to explain "whether a certain night was dark." Daubert, 509 U.S. at 591. That same testimony is not admissible to explain "whether an individual was unusually likely to have behaved irrationally on that night." Id.; see also Paoli, 35 F.3d at 743 ("For example, animal studies may be methodologically acceptable to show that chemical X increases the risk of cancer in animals, but they may not be methodologically acceptable to show that chemical X increases the risk of cancer in humans.").

         E. Rule 403

         Assuming an expert meets the requirements of qualification, reliability, and fit, there is still "some room for Rule 403 to operate independently." Paoli, 35 F.3d at 746. "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed.R.Evid. 403.

         On the one hand, the Supreme Court has explained, "[e]xpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge ... exercises more control over experts than over lay witnesses" under Rule 403. Daubert, 509 U.S. at 595 (citations omitted). On the other, the Third Circuit has warned: "[A] district court cannot exclude a scientific technique as too confusing and overwhelming simply based on its conclusion that scientific techniques by their very nature confuse and overwhelm the jury." Paoli, 35 F.3d at 746. Instead, in order to exclude expert evidence under Rule 403, there "must be something about the particular [] technique such as its posture of mythic infallibility that makes is especially overwhelming." Id.

         II. Plaintiff's Motion to Strike Defendant's Market Definition

         Defendant proffers the expert testimony of Dr. Lauren Stiroh. Dr. Stiroh is an economics expert holding three degrees in the subject-a bachelor's, master's, and doctorate. She is a Managing Director at NERA Economic Consulting. (Stiroh Report[2] at 5; D.I. 158 at 4-5). At NERA, she serves as chair of the Antitrust and Competition Policy practice. While she is offering a range of opinions, Plaintiffs challenge focuses on the quantitative ...


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