United States District Court, D. Delaware
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.
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.
Andrews, District Judge
Vision-Ease has sued its competitor, Defendant Transitions
Optical, under federal antitrust law. 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
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.
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;
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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702.
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).
Burden of Proof
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).
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.
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)).
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,
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.
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)).
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
"thinkthere 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.
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).
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.
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.
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.").
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.
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."
Plaintiff's Motion to Strike Defendant's Market
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 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 ...