Wednesday, August 09, 2006

10th Circuit to Plaintiff's Counsel: Sez Who?

The Tenth Circuit has published an opinion upholding the trial court's exclusion of damage testimony from the plaintiff's economist in an antitrust case.

Plaintiff's counsel argued that the economist had good reason to take downstream market share as a proxy for upstream market share, because the economist could reasonably conclude that "any given distributor will sell downstream what it purchased upstream."

That might be true, said the Tenth Circuit. But the economist never gave that reason. Only plaintiff's counsel did.

See Champagne Metals v. Ken-Mac Metals, Inc., No. 04-6222 (10th Cir. Aug. 7, 2006) (Kelly, Seymour, & Ebel, JJ.).


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Fed. R. Evid. 702: 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.