Daubert and Antitrust Economics, Or When Should An Antitrust Economist Have Training in Economics?
Judge Saris’s district court opinion denying the motion to exclude one of the plaintiff’s economic experts in Natchitoches Parish Hospital v. Tyco International recently came across my desk. It is an interesting case involving allegations that Covidien, a leading supplier of “sharps containers” used for the disposal of various needle-involving medical products (syringes, IVs, etc.) violated the antitrust laws with various market share discounting arrangements with buyers and exclusive dealing contracts with GPOs. I’ve not been following this litigation very closely, which has now apparently survived summary judgment. What caught my eye was a passage from the Daubert opinion to exclude Professor Einer Elhauge’s expert economic testimony on behalf of the plaintiff. As an interesting side note, we’ve had occasion to opine ourselves on some of Professor Elhauge’s views on the related topic of loyalty discounts here. If you’d like to get caught fully up to speed, read the briefs. I’ll start you off with the motion to exclude , the opposition, and a declaration submitted by John Bates Clark Medal / Nobel Prize winner Daniel McFadden in support of the motion to exclude.