|
Recent-Case Supplement To Goetz & McChesney, Antitrust
Law |
|
98
F.
Supp.
2d
729
(W.D.Va.,
2000) JUDGE
JAMES
H.
MICHAEL,
JR.
On
February
11,
2000,
Defendant
The
Historic
Green
Springs,
Inc.
("HGSI")
filed
a
motion
to
exclude
the
expert
report
and
testimony
of
Seth
Schwartz,
Virginia
Vermiculite,
Ltd.'s
("VVL")
purported
expert
witness
on
market
analyses
for
the
present
case.
On
February
29,
2000,
Defendant
W.R.
Grace
&
Co.-Conn.
("Grace")
joined
in
HGSI's
motion.
The
court
has
received
a
substantial
amount
of
evidence
and
heard
arguments
from
counsel
on
the
qualifications
of
Seth
Schwartz.
Having
thoroughly
considered
the
issue,
the
court
will
grant
the
defendants'
motion
to
exclude
Schwartz'
report
and
testimony.
In
January
1998,
VVL
officially
notified
defendants
that
it
was
designating
Seth
Schwartz
as
an
"independent
economic
consultant"
under
the
governing
protective
order.
Mr.
Schwartz
attained
a
bachelor's
degree
in
geological
engineering
at
Princeton
University
in
1977.
Upon
earning
this
degree,
Schwartz
began
working
for
Robert
Sansom
(the
President
of
VVL)
at
Sansom's
then
consulting
firm,
Energy
and
Environmental
Analysis
("EEA").
When
Sansom
formed
another
consulting
group,
Energy
Ventures
Analysis
("EVA"),
four
years
later,
Schwartz
followed
Sansom
to
EVA.
Schwartz
is
currently
the
co-owner
of
EVA
with
Sansom;
and
together,
the
pair
own
over
50%
of
the
company's
stock.
Schwartz
and
Sansom
are
also
coinvestors
in
a
natural
gas
storage
facility
in
New
York.
Through
EEA
and
EVA,
Schwartz
has
devoted
most
of
his
professional
career
to
advising
energy
companies
about
various
matters,
some
of
which
required
Schwartz
to
perform
market
research
analyses,
including
identifying
and
forecasting
prices
as
well
as
business
analyses
for
investment
decisions.
Schwartz
also
has
testified
in
numerous
non-antitrust
cases
relating
to
coal;
however,
Schwartz
admitted,
in
his
deposition
and
at
the
hearing,
that
none
of
these
cases
involved
antitrust
matters
requiring
the
rigorous
defining
of
a
relevant
market.
In
addition,
Schwartz
never
has
authored
a
book
or
article
dealing
with
antitrust
issues
or
vermiculite.
Defendant
Grace
immediately
objected
to
the
designation
of
Schwartz,
expressing
grave
concern
about
the
"risk
of
inadvertent
disclosure
of
highly
confidential
information."
However,
Grace
asserts
that
"in
the
spirit
of
compromise,"
Grace
agreed
to
withdraw
its
objection
to
Schwartz'
designation
on
the
condition
that
VVL
limited
its
experts
to
Schwartz,
rather
than
utilizing
VVL's
second
named
expert,
Dr.
Donald
Martin
of
Glassman-Oliver
Economic
Consultants,
Inc.,
who
had
earned
a
Ph.D
in
Economics
from
UCLA.
Had
Dr.
Martin
remained
in
the
case,
then
there
would
have
been
no
reason
to
permit
Schwartz
access
to
highly
confidential
business
information.
Thus,
Grace
in
essence
forced
VVL
to
choose
between
Dr.
Martin
and
Schwartz.
Sansom
decided
to
use
Schwartz
as
the
plaintiffs'
antitrust
economic
expert.
To
determine
the
relevant
market
for
the
present
case,
Schwartz
utilized
the
Horizontal
Merger
Guidelines
("Merger
Guidelines")
issued
by
the
United
States
Department
of
Justice
and
the
Federal
Trade
Commission.
The
Merger
Guidelines
detail
the
current
enforcement
policy
of
the
Department
of
Justice
and
the
Federal
Trade
Commission
concerning
horizontal
acquisitions
and
mergers
subject
to
Section
1
of
the
Sherman
Act.
See
Merger
Guidelines,
§
0.
In
his
report,
Schwartz
defined
the
relevant
market
for
a
Section
1
claim
to
be
mining
rights
in
Louisa
County.
For
the
Section
2
claim,
Schwartz
broadened
his
definition
to
vermiculite
concentrates
in
North
America.
In
both
definitions,
Schwartz
determined
that
foreign
competitors
in
South
Africa
and
China,
whose
imports
have
increased
over
the
past
decade,
were
not
relevant
to
the
market
definition.
Schwartz
also
determined
that
WL
would
not
feel
the
effects
of
the
transfer
of
property
from
Grace
to
HGSI
until
several
years
in
the
future
when
WL's
reserves
in
Louisa
County
would
be
depleted.
Moreover,
Schwartz
found
that
no
substitutes
existed
for
either
mining
rights
or
vermiculite
concentrates.
Schwartz'
initial
report
was
immediately
criticized
by
the
defense
experts.
In
response,
Schwartz
filed
a
rebuttal
and
supplemental
report.
Less
than
a
week
before
the
initial
summary
judgment
hearing
scheduled
for
February
17,
2000,
Defendant
HGSI,
by
motion,
challenged
the
qualifications
of
Schwartz.
HGSI
alleged
that
Schwartz
lacked
expertise
in
both
economics
and
vermiculite,
and
thus
was
inadequate
to
testify
as
an
expert
witness.
WL
immediately
moved
to
strike
the
motion
to
exclude
Schwartz
as
untimely,
particularly
in
light
of
the
fact
that
the
affidavit
utilized
to
support
HGSI's
motion
was
taken
over
eight
weeks
earlier.
Though
HGSI's
motion
may
be
viewed
as
untimely,[1]
because
VVL
must
produce
expert
testimony
in
order
properly
to
set
forth
a
relevant
market,
it
would
have
been
a
waste
of
judicial
resources
not
to
hold
a
Daubert
hearing
prior
to
summary
judgment.
Defendant
Grace
orally
joined
in
HGSI's
Motion
to
Exclude
Schwartz;
however,
Grace
withheld
a
memorandum
to
support
its
motion
until
the
late
afternoon
of
March
2,
giving
the
court
and
the
plaintiffs
only
one
business
day
to
consider
Grace's
arguments
before
the
hearing
was
to
begin
on
March
6.
At
the
March
6
hearing,
the
court
immediately
realized
that
one
day
was
inadequate
for
the
parties
to
present
their
evidence.
Consequently,
the
Daubert
hearing
resumed
on
March
29
and
continued
to
the
evening
of
March
31.
Thus,
the
court
has
heard
a
full
four
days
of
evidence
regarding
the
expertise
(or
lack
thereof)
of
Seth
Schwartz. II. A
trial
judge
is
required
to
determine
at
the
outset
whether
a
witness
is
qualified
to
testify.
See
Fed.
R.
Evid.
104(a).
The
starting
point
for
evaluating
whether
an
expert
is
qualified
begins
with
Rule
702
of
the
Federal
Rules
of
Evidence.
Rule
702
states: 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. Under Rule 702, a purported expert must first hurdle the obstacle of being qualified to testify as an expert. A witness can be qualified as an expert by "knowledge, skill, experience, training or education." Fed. R. Evid. 702. As the term "or" joins the requisites to be considered an expert, it is not necessary for the purported expert to possess all five requisites-as long as he possesses one, he may be deemed an expert. See
Cooper v. Laboratory
Corp. of America Holdings,
Inc.,
150
F.3d
376,
380
(4th
Cir.
1998).
Schwartz'
educational
background
lies
in
geological
engineering.
However,
while
at
Princeton,
Schwartz
took
a
micro-macro
mineral
economics
course.
Nevertheless,
as
Schwartz
graduated
in
1977,
this
economics
course
was
completed
some
twenty
(20)
years
ago.
See
id.
(giving
little
weight
to
a
single
toxicology
course
taken
thirty
years
before
the
start
of
the
litigation
at
which
the
witness
was
to
testify
as
a
toxicology
expert);
see
also
ROBERT
S.
PINDYCK
&
DANIEL
L.
RUBINFELD,
MICROECONOMICS
Preface,
at
xxi
(4th
ed.
1998)
(recognizing
that
over
the
past
decade
new
topics,
such
as
competitive
strategy
and
the
analysis
of
pricing
by
firms
with
market
power,
generally
excluded
from
previous
textbooks,
have
come
to
have
a
central
role
in
economics
today).
Consequently,
though
the
curriculum
of
geological
engineering,
including
this
sole
course
in
mineral
economics,
may
provide
some
insight
to
vermiculite
mining
and
the
constraints
of
a
market
due
to
nature,
this
curriculum
cannot
be
assumed
to
provide
its
graduates
with
an
economics
background
appropriately
necessary
to
define
a
relevant
market
in
an
antitrust
case.
As
such,
Schwartz
lacks
the
requisite
educational
background
for
an
expert
witness.
Though
the
necessary
degrees,
titles
or
credentials
do
not
govern
by
themselves
the
issue
of
qualifications,
it
cannot
be
denied
that
these
accomplishments
aid
one
in
obtaining
the
requisite
knowledge,
and
thus,
are
pertinent
in
determining
whether
an
individual
qualifies
as
an
expert.
In
regards
to
training,
experience
and
skill,
a
substantial
portion
of
Schwartz'
career
involves
performing
market
analyses
for
his
clients.
The
court
does
not
doubt
that
Schwartz
has
prepared
hundreds
of
these
analyses
and
has
given
several
presentations
on
such
analyses
throughout
his
career.
Notwithstanding,
Schwartz'
market
analyses
generally
are
utilized
"to
define
a
market
for
investment
purposes
to
best
understand
the
ability
to
earn
profits
on
different
investments
in
different
market
situations."
(Mar.
29
Daubert
Tr.
at
137.).
In
doing
this,
Schwartz
asserts
that
he
has
addressed
issues
of
market
share
and
price
discrimination,
and
has
used
the
Merger
Guidelines
to
define
the
bounds
of
the
market.
Though
related
to
a
relevant
market
determination
in
an
antitrust
issue,
there
are
differences
between
an
analysis
for
business
investment
and
an
analysis
for
antitrust
purposes.
For
one,
market
analyses
performed
for
business
usually
provide
information
regarding
the
various
places
a
product
would
be
sold,
uses
for
which
it
might
be
sold,
and
the
regions
in
which
it
might
be
traded.
(Mar.
31
Daubert
Tr.
at
497.)
These
analyses
do
not
go
into
the
detail
required
for
antitrust
matters.
For
instance,
defining
where
a
product
could
be
sold
is
only
a
small
part
of
defining
a
geographic
market
as
there
can
be
relevant
markets
that
are
narrower
or
broader
than
where
individual
producers
sell
their
products.
(Mar.
30
Daubert
Tr.
at
223.)
In
addition,
market
analyses
for
antitrust
markets
generally
require
some
expertise
in
the
field
of
industrial
organization.
(Mar.
30
Daubert
Tr.
at
201.)
Individuals
with
experience
in
defining
markets
for
minerals
generally
would
not
possess
the
skill
and
training
of
a
professional
economist
necessary
to
define
a
relevant
market
for
antitrust
purposes.
(Mar.
30
Daubert
Tr.
at
202.)
Moreover,
Schwartz
generally
performs
market
analyses
for
the
coal
industry,
which
has
an
indefinite
number
of
producers.
However,
the
vermiculite
market
only
maintains
a
handful
of
producers.
As
Schwartz'
training,
experience
and
skill
lies
with
business
market
analyses
for
the
coal
industry
or
other
utilities
rather
than
antitrust
issues,
it
cannot
be
determined
that
Schwartz
possesses
the
requisite
training,
experience
and
skill.
Mr.
Schwartz'
level
of
training,
experience
and
skill
is
substantially
similar
to
the
purported
expert
in
Thomas
J:
Kline,
Inc.
v.
Lorillard,
Inc.,
878
F.2d
791
(4th
Cir.
1989).
In
Kline,
the
plaintiff
utilized
the
testimony
of
a
purported
expert
to
establish
that
the
defendant's
shift
in
credit
practices
was
an
unjustified
credit
discrimination
and
price
discrimination
under
Section
13(a)
of
the
Robinson-Patman
Act.
The
Fourth
Circuit
determined
that
the
court
abused
its
discretion
by
not
excluding
the
testimony
of
this
expert
in
light
of
the
facts
that:
(a)
"by
her
own
admission,"
she
was
"not
an
economist;"
(b)
her
general
business
education
failed
to
indicate
whether
she
possessed
any
training
in
antitrust
or
credit;
(c)
"[d]uring
her
entire
career
[she]
had
published
only
one
article,
a
piece
that
had
nothing
to
do
with
price
discrimination,
credit
or
antitrust
generally;"
and
(d)
"[h]er
work
experience
was
limited
largely
to
analyses
of
companies'
financial
health."
Id.
at
799-800.
The
court
went
on
to
hold
that
"no
single
one
of
these
facts
disqualifies
[the.expert]
from
giving
opinions....
In
combination,
however,
they
lead
us
to
the
conclusion
that
this
witness
cannot
satisfy
even
the
minimal
requirements
of
Fed.
R.
Evid.
702."
Id.
at
800.
The
court
further
declared:
Id.
Grace
asserts
that
like
the
purported
expert
in
Kline,
Schwartz
does
not
possess
the
requisite
expertise
to
testify
in
an
antitrust
case
involving
vermiculite.
Schwartz
has
not
taught
in
the
antitrust
economics
field;
he
has
not
written
in
the
field;
though
he
has
testified
about
market
analyses,
he
never
has
testified
about
a
relevant
market,
competitive
impact,
dangerous
probability
of
monopolization,
or
market
power
in
an
antitrust
case;
and,
last
but
not
least,
the
expertise
he
claims
to
have
acquired
on
antitrust
matters
has
been
through
methods
such
as
"discussions
with
attorneys
with
expertise
in
.
.
.
antitrust
law."
(Schwartz
Dep.
at
51,
Mar.
6
Daubert
Tr.
at
235.)
At
the
hearing,
Schwartz
admitted
that
in
his
twenty-three
(23)
years
of
performing
market
analyses,
only
five
engagements
involved
antitrust
product
market
analyses,
a
small
percentage
of
his
usual
work.
These
five
engagements
were
not
antitrust
cases,
but
were
retentions
in
merger
and
acquisition
cases
that
had
the
potential
of
being
reviewed
by
either
the
Federal
Trade
Commission
or
the
Department
of
Justice.
(Mar.
6
Daubert
Tr.
at
221-22.)
Moreover,
though
Schwartz
keeps
up
to
date
on
the
field
of
geological
engineering
and
mineral
markets,
Schwartz
fails
to
keep
up
with
the
field
of
antitrust
economics.
(Mar.
6
Daubert
Tr.
at
237.)
VVL
attempts
to
distinguish
Kline
by
maintaining
that
the
purported
expert
there
lacked
specialized
knowledge
in
price
discrimination
or
credit
issues,
whereas
Schwartz
possesses
specialized
knowledge
in
market
definition
and
mineral
economics.
However,
as
already
emphasized,
there
are
stark
differences
between
market
analyses
to
forecast
businesses'
financial
profitability
and
market
analyses
for
antitrust
purposes.
Accordingly,
the
alleged
specialized
knowledge
does
not
apply
necessarily
to
antitrust
matters.
To
determine
whether
Schwartz
actually
possesses
such
specialized
knowledge
applicable
in
antitrust
matters,
the
court
must
undertake
an
examination
of
Schwartz'
understanding
of
basic
economic
principles.
After
reviewing
the
evidence
presented
to
the
court
in
the
four
day
Daubert
hearing,
it
appears
to
the
court
that
Schwartz
does
not
have
the
requisite
knowledge
to
be
qualified
as
an
expert
in
antitrust
litigation,
as
he
lacks
a
clear
understanding
of
basic
economic
principles.
For
instance,
Schwartz
admitted
he
was
unfamiliar
with
the
dominant
firm
theory
in
economics.
This
is
a
commonly
used
theory
which
attempts
to
explain
the
pricing
and
output
levels
in
a
market
with
a
single
large
company,
possibly
a
monopolist,
and
how
it
competes
with
smaller
companies.
Economists
may
choose
to
rely
upon
the
dominant
firm
theory
when
determining
if
a
company
possesses
monopoly
power.
Schwartz'
inability
to
recognize
the
dominant
firm
theory
emphasizes
his
lack
of
knowledge
of
current
standards
for
applying
antitrust
economics. Additionally,
the
term
"joint
products"
was
another
concept
about
which
Schwartz
was
unfamiliar
in
his
deposition.
Joint
products
are
produced
in
relatively
fixed
proportions
and
are
"linked
in
a
single
unit
of
production."
(Goetz
Expert
Aff.at
6.)
The
classic
example
of
this
is
of
beef
and
hide.
In
the
beef-hide
example,
cows
are
the
product
being
produced,
but
whatever
byproducts
come
from
a
cow
are
sold
separately.
Similarly,
mid-sized
and
small
vermiculite
also
may
be
considered
joint
products
because
the
different
sizes
of
vermiculite
are
being
produced
at
the
same
time.
The
joint
products
phenomena
becomes
prevalent
in
this
case
with
Schwartz'
mine
imbalance
problem.
According
to
Schwartz,
as
the
demand
for
mid-sized
vermiculite
surpassed
the
demand
for
small
vermiculite,
Grace
discarded
small
vermiculite
and
increased
the
prices
of
mid-sized
vermiculite
to
counteract
its
mine
imbalance.
(Schwartz
Report
at
16-17;
Godek
Expert
Aff.
at
6.)
While
analyzing
the
mine
imbalance
problem,
Schwartz
identified
the
different
price
patterns,
but
did
not
examine
the
cost
changes.
(Godek
Expert
Aff.
at
6.)
At
the
Daubert
hearing,
Schwartz
distinguished
joint
cost
from
joint
product
market
and
stated
that
"[t]he
fact
that
costs
may
be
incurred
at
the
same
time
does
not
mean
that
there
are
not
separate
uses
and
values
for
those
products,
and
the
evidence
indicated
quite
clearly
that,
in
fact,
the
products
were
used
separately,
were
priced
separately
and
were
not
correlated
with
each
other."
(Mar.
6
Daubert
Tr.
at
106-07.)
However,
when
assessing
the
implications
of
a
change
in
the
price
or
in
the
quantity
sold
of
one
of
the
joint
products,
it
is
imperative
to
look
at
all
of
the
joint
products.
Failure
to
do
so
indicates
less
than
sufficient
care
when
analyzing
the
connectedness
of
the
joint
production
process.
Furthermore,
Schwartz
seems
to
be
confused
about
the
concept
of
price
correlation.
Correlation
refers
to
how
prices
of
different
products
move
in
relation
to
each
other
over
time.
In
considering
two
different
vermiculite
concentrate
size
grades
(what
Schwartz
has
labeled
as
small
and
ultrasmall),
Schwartz
was
unable
to
draw
any
conclusion
about
the
price
correlation
of
the
two
products
as
the
prices
did
not
change.
He
stated,
"[the
unchanging
prices]
provided
no
empirical
evidence
from
a
statistical
basis
of
any
kind
to
demonstrate
that
those
two
prices
are,
in
fact,
correlated;
it
merely
demonstrates
that
those
prices
are
unchanged,
not
that
they
would
move
in
the
same
direction,
let
alone
by
the
same
magnitude
of
correlation."
(Mar.
6
Daubert
Tr.
at
108.)
However,
by
simple
definition,
no
change
over
the
years
in
the
two
products'
prices
indicates
perfect
correlation.
(Mar.
30
Daubert
Tr.,
at
276.)
As
such,
the
stable
prices
of
the
separate
vermiculite
concentrate
size
grades
and
the
constant
differential
found
show
correlation.
Lastly,
Schwartz'
lack
of
antitrust
economic
experience
becomes
apparent
in
his
analysis
of
the
elasticity
of
demand.
The
flat
prices
of
vermiculite
concentrate
Grades
4
and
5
observed
as
the
supply
curve
shifted
implies
that
the
demand
curves
were
flat,
i.e.,
very
elastic.
(Goetz'
Expert
Aff.
at
11.)
Introductory
microeconomic
courses
teach
that
elastic
demand
curves
imply
that
there
are
good
substitutes
for
the
product
in
question.
Schwartz,
however,
concluded
the
exact
opposite
in
his
deposition
and
testimony
at
the
Daubert
hearing.
He
testified
that
elastic
demand
curves
implied
that
no
substitutes
could
be
found
for
the
product.
This
is
an
error.
Because
of
Schwartz'
apparent
failure
to
understand
basic
antitrust
economic
principles,
the
court
cannot
find
that
Schwartz
maintains
the
minimal
expert
requirement
of
knowledge
pursuant
to
Rule
702.
The
court
recognizes
that
after
a
while,
Schwartz
was
able
to
grasp
some
of
these
concepts
enough
to
explain
them
in
his
own
terms.
However,
the
fact
that
he
immediately
did
not
recognize
basic
antitrust
economic
principles
leads
to
the
inference
that
there
could
be
more
complicated
issues
lurking
under
the
surface.
As
such,
the
court
determines
that
Schwartz
does
not
have
the
specialized
knowledge
necessary
to
testify
about
antitrust
matters.
Nonetheless,
the
court
will
explain
why
Schwartz'
methodology
in
arriving
at
his
conclusions
also
disqualifies
Schwartz
as
an
expert
witness
in
this
case.
The
Supreme
Court
has
instructed
courts
that
under
Rule
702,
trial
judges
must
determine
"whether
the
reasoning
or
methodology
underlying
the
testimony
is
O
valid
and
O
whether
that
reasoning
or
methodology
properly
can
be
applied
to
the
facts
in
issue."
See
Daubert
v.
Merrell
Dow
Pharmaceuticals,
Inc.,
509
U.S.
579,
592-93
(1993).
Thus,
there
are
two
questions
a
court
must
answer
before
permitting
an
expert
to
testify:
(1)
Is
the
proposed
testimony
relevant
to
the
issues
in
the
case;
and
(2)
Is
the
proposed
testimony
sufficiently
reliable?
In
answering
these
questions,
a
court
must
take
into
consideration
the
fact
that
"Rule
702
was
intended
to
liberalize
the
introduction
of
relevant
expert
evidence."
Westherry
v.
Gislaved
GummiAb,
178
F.3d
257,
261
(4th
Cir.
1999);
see
also
Thomas
~
Kline,
Inc.
v.
Lorillard,
Inc.,
878
F.2d
791,
799
(4th
Cir.
1989)
(recognizing
that
the
test
for
exclusion
of
an
expert
is
a
strict
one).
As
such,
a
court
need
not
determine
whether
the
expert's
testimony
is
correct,
but
should
leave
such
conclusions
to
the
jury
after
"vigorous
cross-examination,
presentation
of
contrary
evidence,
and
careful
instruction
on
the
burden
of
proof."
Westberry,
178
F.3d
at
261
(quoting
Daubert,
509
U.S.
at
596).
Further,
it
is
unnecessary
for
an
expert
to
be
precisely
informed
of
all
the
details
of
a
case
to
render
an
opinion.
See
Kline,
878
F.2d
at
799.
However,
courts
also
must
be
mindful
that
experts
have
thepotential
to
be
misleading
if
their
testimony
is
not
reliable.
Expert
testimony
with
a
greater
potential
to
mislead
than
to
aid
the
jury
should
be
excluded.
See
Westberry,
178
F.3d
at
261
(citing
United
States
v.
Dorsey,
45
F.3d
809,
815-16
(4th
Cir.
1995)). A.
Relevance
of
the
Proposed
Testimonv In
regards
to
the
first
question
a
court
must
answer,
the
proposed
testimony
of
Seth
Schwartz
not
only
is
pertinent
to
the
present
case,
but
focuses
on
the
central
issue.
To
establish
a
claim
under
Section
1
and
2
ofthe
Sherman
Act,
a
plaintiff
must
set
form
a
relevant
market.
See
Satellite
Television
&
Associated
Resources,
Ine.
v.
Continental
Cablevision,
Inc.,
714
F.2d
351,
355
(4th
Cir.
1983).
Generally,
an
expert
is
utilized
in
establishing
the
relevant
market.
See
George
A.
Hay,
The
Economist
as
Expert
Witness,
in
Expert
Witnesses,
335
(Faust
F.
Rossi
ed.
1991)
("[A]t
the
very
heart
of
antitrust
cases
are
concepts-such
as
monopoly
power,
restraints
on
competition,
and
relevant
markets-that
are
as
much
matters
of
economics
as
they
are
of
law.
With
very
few
exceptions,
it
is
virtually
unthinkable
to
attempt
to
litigate
an
antitrust
case
without
the
use
of
economic
testimony").
As
VVL
was
proffering
the
testimony
of
Schwartz
to
aid
in
defining
the
relevant
market
in
the
antitrust
claims,
Schwartz'
testimony
would
assist
the
trier
of
fact
in
understanding
this
issue. B.
Reliabilitv
of
the
Expert's
Testimonv A
district
judge
acts
as
a
"gatekeeper"
in
determining
whether
an
expert's
purported
testimony
is
reliable.
Reliable
expert
testimony
cannot
be
based
on
mere
belief
or
speculation;
rather,
it
must
be
based
on
scientific,
technical,
or,
in
this
case,
specialized
knowledge
derived
from
valid
methods.
See
Daubert,
509
U.S.
at
592-93.
To
determine
the
reliability
of
specialized
knowledge
and
methods
for
applying
it
to
various
facts,
a
court
may
consider
such
factors
as
testing,
peer
review,
evaluation
of
rates
of
error,
and
general
acceptability.
See
id.
at
593-94.
The
Supreme
Court
has
held
that
these
four
factors
outlined
in
Daubert
do
not
confine
a
district
court's
assessment
of
whether
a
witness'
testimony
is
reliable.
Rather,
a
district
court
has
considerable
leeway
in
examining
any
number
of
factors
in
making
the
reliability
determination.
See
Kumho
Tire
Company,
Ltd.
v.
Patrick
Carmichael,
119
S.Ct.
1167,
1175
(1999).
Thus,
"the
court's
evaluation
is
always
a
flexible
one,
and
the
court's
conclusions
necessarily
amount
to
an
exercise
of
broad
discretion
guided
by
the
overarching
criteria
of
relevance
and
reliability."
Oglesby
v.
General
Motors
Corp.,
190
F.3d
244,
250
(4th
Cir.
1999).
There
is
no
doubt
that
Schwartz
could
be
qualified
as
an
expert
in
areas
relating
to
mineral
rights
outside
of
antitrust
issues.
However,
when
it
comes
to
issues
involving
antitrust
economics,
Schwartz'
methodology
is
flawed
on
several
bases.
As
best
described
by
Professor
Goetz,
"economics
is
based
upon
a
formal
body
of
learning
and
expertise."
(Mar.
31
Daubert
Tr.
at
496.)
Antitrust
economics
can
be
analogized
to
a
multi-step
mathematical
problem
in
that
when
one
of
the
necessary
steps
"either
misapplies
a
mathematical
theorem
or
does
the
arithmetic
wrong,
you
know
that
the
answer
[may
be]
wrong
without
following
the
rest
of
the
chain
or
indeed
without
calculating
the
correct
answer
yourself.
.
.
You
know
that
the
methodology
is
wrong
and
the
answer
could
be
correct
only
by
happenstance."
(Mar.
31
Daubert
Tr.
at
496.)
Schwartz
skips
a
number
of
steps
in
his
analysis
of
antitrust
issues.
For
instance,
when
performing
an
economic
analysis,
it
is
imperative
to
identify
alternative
hypotheses
to
the
proposed
hypotheses.
To
determine
if
Grace
was
a
monopolist,
Schwartz
utilized
the
Merger
Guidelines
which
require
analysis
of
whether
a
seller
can
raise
prices
profitably
over
competitive
prices
for
a
significant
period
of
time.
Pointing
to
a
series
of
considerable
increases
in
Grace's
price
for
mid-sized
vermiculite,
Schwartz
declared
that
Grace
was,
in
fact,
a
monopolist,
at
least
in
Schwartz'
defined
product
market
for
mid-sized
vermiculite.
(Mar.
6
Daubert
Tr.
at
125-26;
Goetz'
Expert
Aff.
at
4.)
Traditionally,
a
monopolist,
with
a
downward
sloping
demand
curve,
increases
its
prices,
which
reduces
its
output.
(Mills'
Expert
Aff.
at
7.)
In
this
analysis,
however,
Schwartz
failed
to
look
at
the
alternative
hypotheses.
(Mar.
31
Daubert
Tr.
at
499;
Goetz'
Expert
Aff.
at
3.)
For
example,
an
observed
price
increase
may
result
from
a
rightward
shift
of
a
demand
curve,
a
leeward
shift
of
a
supply
curve,
or
a
combination
of
these
two
movements.
(Goetz'
Expert
Aff.
at
4-5.)
Schwartz
merely
pointed
to
the
price
increase
as
an
indication
that
Grace
possessed
monopoly
power
without
further
investigation
as
to
how
the
price
increase
occurred.
It
is
improper
to
conclude
that
a
company
such
as
Grace
has
market
power
by
pointing
to
its
price
increases
without
further
testing
of
alternative
hypotheses.
Schwartz
makes
similar
conclusions
based
on
price
increases,
without
considering
explanations
for
the
increases,
in
defining
the
product
market
in
vermiculite
concentrates
as
submarkets.
In
relation
to
the
Section
2
claims,
Schwartz
concluded
that
for
each
grade
size,
there
was
a
separate
relevant
product
market.
Schwartz
asserts
that
he
made
his
decision
to
bifurcate
vermiculite
concentrate
by
size
based
on
a
number
of
factors
including,
but
not
limited
to,
the
changes
in
the
prices
of
the
various
sizes
of
vermiculite
over
time,
analysis
of
specific
users
for
the
individual
products,
and
overlap
among
the
grades
in
the
end
use
of
the
products.
However,
Schwartz
failed
to
show
that
the
prices
of
the
different
vermiculite
sizes
were
free
of
each
other.
It
is
possible
that
two
products
with
different
dominant
uses
are
in
the
same
market
if
a
conservative
price
change
pushed
users
to
switch
products;
not
all
users
need
to
switch,
but
onlyenough
need
to
switch
to
significantly
affect
prices.
(Mill's
Expert
Aff.at
6.)
Schwartz
not
only
failed
to
consider
the
substitutability
of
vermiculite
sizes,
which
would
affect
whether
the
sizes'
prices
were
free
and
clear
of
one
another;
but,
he
also
failed
to
thoroughly
consider
the
substitutability
of
other
products.
According
to
Black's
Law
Dictionary,
the
relevant
market
in
an
antitrust
case
includes
both
the
product
market
and
the
geographic
market.
The
geographic
market
must
be
"composed
of
products
that
have
reasonable
interchangeability
for
purposes
for
which
they
are
produced,
confining
their
price,
use
and
quality."
See
BLACK’S
LAW
DICTIONARY
1291
(6th
ed.
1990).
Schwartz,:in
his
market
analysis,
did
not
thoroughly
examine
substitutes
when
defining
the
market.
For
example,
vermiculite
competes
with
polystyrene
in
the
manure
of
construction
materials
and
perlite
in
some
horticultural
capacities.
It
is
necessary
to
determine
whether
these
products
belong
in
the
same
antitrust
market
as
vermiculite.
(Mill's
Expert
Aff.
at
3.)
When
Schwartz
considered
substitutes
in
his
analysis
by
looking
at
price
correlation
to
determine
whether
or
not
different
products
were
in
the
same
market,
he
focused
on
finding
the
perfect
substitute
for
vermiculite.
Hence,
Schwartz
excluded
products
such
as
perlite
in
defining
the
market.
By
doing
this,
Schwartz
gave
the
inflexible
buyers,
unable
to
substitute
vermiculite
despite
price
increases,
too
much
weight
and
ignored
the
power
of
the
flexible
elastic
buyer.
There
are
elastic
buyers
that
will
find
substitutes,
even
if
the
substitutes
are
imperfect.
An
example
to
further
illustrate
this
point
would
be
butter
and
margarine.
Most
people
would
agree
that
butter
and
margarine
are
not
perfect
substitutes.
Their
prices
have
not
necessarily
moved
together
in
the
past,
and
they
have
a
substantial
price
differential.
(Mar.
3
l
Daubert
Tr.
at
510.)
There
are
butter
buyers
and
margarine
buyers
that,
regardless
of
price
increases,
would
never
switch
products.
However,
if
there
are
enough
regular
butter
buyers
that
would
switch
to
margarine
if
butter
prices
increased,
then
margarine
would
be
in
the
same
relevant
market
as
butter.
It
is
not
imperative
that
every
butter
user
switch
to
margarine.
There
just
need
to
be
enough
butter
buyers
that
switch
to
margarine
so
that
the
butter
producers'
profits
would
be
significantly
affected.
In
the
present
case,
if
substitutes
do
exist
to
which
a
number
of
elastic
buyers
would
switch,
and
the
switching
would
restrain
the
price
of
vermiculite,
then
these
substitutes
would
be
included
in
the
relevant
market.
Schwartz
failed
to
consider
this
aspect
in
his
analysis
of
substitutes. Not
only
does
the
potential
for
a
high
rate
of
error
exist
because
Schwartz
neglected
to
analyze
or
misapplied
some
of
the
steps,
but
the
potential
for
a
high
rate
of
error
exists
because
of
the
testing
method
selected
by
Schwartz
in
determining
a
relevant
market.
In
defining
a
relevant
market
for
the
present
case,
Schwartz
utilized
the
method
set
forth
by
Merger
Guidelines,
which
consider
whether
a
hypothetical
monopolist
could
raise
prices
by
5
to
10
percent.
Schwartz
utilized
this
method
despite
the
fact
that
the
Guidelines
state:
"Because
the
specific
standards
set
forth
in
the
Guidelines
must
be
applied
to
a
broad
range
of
possible
factual
circumstances,
mechanical
application
of
those
standards
may
provide
misleading
answers
to
the
economic
questions
raised
under
antitrust
laws."
Merger
Guidelines,
§
O.
Schwartz
himself
admits
that
the
Merger
Guidelines
are
not
the
"be
all
or
end
all
of
relevant
market
analysis."
(Mar.
29
Daubert
Tr.
at
99.)
Even
with
such
knowledge,
Schwartz
did
not
undertake
another
method
of
testing,
such
as
the
Elzinga-Hogarty
test,
to
support
his
conclusion
of
a
relevant
market
under
the
Merger
Guidelines.
Thus,
Schwartz
utilized
a
testing
method
that
under
its
own
statement
of
purpose
suggests
that
there
could
be
a
high
rate
of
error
when
used
in
antitrust
matters. Moreover,
Schwartz
makes
several
other
errors
that
would
not
be
generally
accepted
by
antitrust
economists.
In
relation
to
the
plaintiffs'
Section
1
claims,
Schwartz
began
his
analysis
with
the
hypothesis
that
the
proper
relevant
market
was
mining
rights
in
Louisa
County.
By
defining
the
relevant
product
market
as
mining
rights,
Schwartz
neglected
the
fact
that
mining
rights
obtain
their
value
from
the
downstream
product
of
vermiculite
concentrates.
Schwartz
admitted
during
the
hearing
that
the
value
of
mining
rights
could
not
be
calculated
without
considering
the
value
of
vermiculite
concentrates.
Accordingly,
the
court
cannot
accept
Schwartz
initial
hypothesis
for
the
relevant
product
market.
This
error
also
contributed
to
a
faulty
relevant
geographic
market.
In
determining
the
geographic
market,
Schwartz
evaluated
the
existing
and
potential
buyers
of
vermiculite
reserves,
whereas
he
should
have
evaluated
the
existing
and
potential
buyers
of
vermiculite
concentrates.
By
Schwartz'
own
admission,
the
relevant
geographic
market
for
vermiculite
concentrates
is,
at
a
minimum,
North
America.
The
alleged
North
American
vermiculite
concentrate
market
further
illustrates
the
error
in
Schwartz'
methodology
in
defining
Louisa
County
as
the
geographic
market
for
mining
rights.
These
two
markets
are
incongruent
with
one
another.
Yet,
it
is
generally
accepted
that
"the
same
firms
that
discipline
the
pricing
of
vermiculite
concentrate
are
those
firms
and
those
products
that
discipline
the
pricing
of
the
reserves."
(Mar.
30
Daubert
Tr.
at
289.)
If
a
mining
rights
market
exists,
its
geographic
market
should
be
co-extensive
with
the
market
for
concentrates
unless
there
is
some
economic
analysis
to
show
that
it
is
not.
Schwartz
failed
to
present
such
an
economic
analysis. Additionally,
Schwartz
included
the
transportation
costs
and
building
costs
for
a
new
plant
in
determining
the
proper
geographic
market
for
vermiculite
mining
rights.
Though
such
costs
may
make
it
more
difficult
for
WL
to
compete
in
the
market,
it
does
not
foreclose
other
entrants.
Indeed,
there
is
evidence
that
the
mines
in
Montana
now
are
producing
vermiculite
without
asbestos.
Schwartz
failed
to
consider
this
factor
basing
his
exclusion
of
such
evidence
on
the
fact
that
the
company
mining
in
Montana
may
go
into
bankruptcy.
Even
though
this
may
be
true,
it
does
not
change
the
fact
that
the
mine
is
producing
vermiculite
which
one
day
may
influence
prices
in
the
market.
(Mar.
31
Daubert
Tr.
at
471.)
Further,
in
the
Section
2
claim,
Schwartz
defined
the
geographic
market
as
North
America.
Schwartz,
however,
neglected
to
review
the
effects
of
overseas
producers,
especially
large
volume
producers
such
as
South
Africa.
In
determining
whether
importers
affect
the
market
it
is
important
to
assess
whether
significant
amounts
of
vermiculite
concentrate
are
imported,
and
then
are
substituted
for
domestic
vermiculite.
The
crucial
element
to
consider
is
if
imports
have
a
price-restraining
influence
on
domestic
vermiculite.
Schwartz
concluded
that
because
of
the
high
transportation
costs,
the
overseas
importers
could
not
affect
the
domestic
market,
without
examining
whether
the
importer's
vermiculite
was
being
substituted
for
domestic
vermiculite.
The
fallacy
in
this
analysis
is
brought
into
stark
reality
when
one
considers
the
undisputed
evidence
that
importation
of
vermiculite
not
only
has
existed
for
some
time,
but
shows
a
trend
of
increasing
importation. Schwartz
also
concluded
that
the
vermiculite
market
would
feel
the
anticompetitive
effects
of
the
donation
to
HGSI
some
seven
years
after
the
transfer.
This
time
frame
was
based
on
reserve
studies
performed
around
the
time
of
the
donation.
Since
then,
it
has
been
determined
that
VVL
will
not
run
out
of
reserves
until
after
the
year
2013.
In
concluding
that
anticompetitive
effects
will
not
occur
until
the
future,
Schwartz
testified
that
he
looked
at
"the
available
supply
of
reserves
to
the
marketplace
and
whether
or
not
the
loss
of
production
due
to
depletion
of
reserves
can
today
be
reasonably
expected
to
have
a
significant
impact
on
the
market
at
that
point
in
the
future."
(Mar.
29
Daubert
Tr.
at
23.)
In
determining
that
it
would
have
an
impact,
Schwartz
assumed
that
the
market
would
remain
stable
over
the
next
several
years.
However,
this
is
a
faulty
assumption
in
light
of
the
fact
that
in
the
years
prior
to
the
donation,
the
market
did
not
remain
stable.
As
such,
there
is
no
evidence
that
the
market
would
suddenly
stabilize
over
the
next
several
years.
Once
again,
this
assumption
neglects
to
consider
that
there
may
be
other
substitutes
that
may
enter
the
market
between
the
time
of
the
transfer
and
the
projected
year
that
competition
will
suffer
due
to
the
transfer.
Schwartz
admits
that
"factors
such
as
new
uses
for
vermiculite
[may]
be
found
in
which
it
would
be
a
superior
product
and
bring
greater
efficiencies
to
the
marketplace
that
at
the
current
point
in
time
could
equally
offset
any
new
substitution
by
other
new
improved
products,"
and
that
"the
farther
out
in
the
future
you
go,
the
less
certain
any
type
of
forecast
or
prediction
can
be."
(Mar.
29
Daubert
Tr.
at
45).
To
further
illustrate
that
Schwartz'
methodology
would
not
be
generally
accepted,
Schwartz,
while
labeling
Grace
a
monopolist,
applied
a
defective
definition
of
monopoly
power.
A
seller
with
monopoly
power
is
one
that
raises
its
prices
above
competitive
prices
as
it
decreases
its
output.
(Mills'
Expert
Aft..
at
7.)
It
is
important
to
note
that
the
monopolist
decreases
production
below
its
capacity
as
it
increases
prices.
Schwartz,
however,
declared
that
a
seller
that
produces
output
at
its
hill
capacity
and
that
increases
prices
with
increases
in
demand
is
a
monopolist.
(Mills'
Expert
Aff.
at
7.)
The
conclusion
by
Schwartz
does
not
follow
the
correct
economic
definition
of
monopoly.
Beyond
the
methodology
utilized
in
determining
a
relevant
market
and
Schwartz'
numerous
errors,
the
court
in
this
case
must
also
consider
the
fact
that
there
is
at
least
an
underlying,
though
probably
unintentional,
potential
for
bias.
It
is
imperative
for
expert
witnesses
to
be
independent.
The
check
to
determine
that
most
experts
are
unbiased
is
whether
their
testimony
is
consistent
with
their
scholarly
work,
prior
published
testimony,
and
reputation.
(Mar.
30
Daubert
Tr.,
at
205.)
In
the
present
case,
because
Schwartz
lacks
such
scholarly
work
and
prior
testimony,
such
a
check
on
Schwartz'
potential
bias
cannot
be
undertaken.
Combined
with
the
fact
that
Schwartz
has
worked
with
Sansom,
VVL's
president,
since
the
time
Schwartz
earned
his
degree
at
Princeton,
the
potential
for
bias
increases
to
some
degree. Such
bias
may
be
interposed
into
Schwartz'
testimony
inadvertently.
For
instance,
Schwartz
composed
his
own
data
in
the
Merger
Guidelines
calculation
because
he
rejected
the
data
comprised
by
the
United
States
Geological
Survey
("USGS")
as
badly
flawed
in
the
area
of
statistics
on
production
and
consumption
of
vermiculite
as
well
as
on
the
presence
of
vermiculite
reserves.
Schwartz
collected
his
own
data
on
production
and
sales
in
vermiculite
from
participants
in
the
market
for
domestic
vermiculite
in
the
United
States.
In
comparing
his
own
data
to
the
data
of
the
USGS,
Schwartz
concluded
that
the
USGS
data
"was
not
just
wrong,
in
terms
of
mathematically
wrong,
but
would
lead
to
opposite
conclusions
regarding
what
the
trends
and
constraints
were
in
supply
and
demand
for
vermiculite
in
the
market."
(Mar.
6
Daubert
Tr.
at
63.)
Moreover,
Schwartz
determined
that
the
"USGS
information
on
the
reserves
of
vermiculite
was
even
more
badly
flawed
than
their
data
on
production
of
sales
of
vermiculite."
(Mar.
6
Daubert
Tr.
at
64.)
Because
Schwartz
was
the
only
purported
expert
in
this
case
not
to
rely
on
the
USGS
data,
Schwartz
concluded
that
all
of
the
other
experts
in
the
case
relied
on
improper
data
in
forming
their
definitions
of
a
relevant
market.
However,
Schwartz'
data
is
derived
from
his
interviews
with
other
individuals.
Deriving
analyses
in
the
antitrust
field
from
anecdotal
evidence
of
this
nature
is
a
basis
for
manifest
error,
particularly
when
compared
to
the
detailed
survey
of
USGS.
For
these
reasons,
the
court
must
be
extra
cautious
when
there
is
a
potential
for
bias. III. After
considering
all
of
the
evidence
put
forth
during
the
four
day
Daubert
hearing,
this
court
finds
that
it
cannot
qualify
Seth
Schwartz
as
an
expert
in
antitrust
economics.
First,
Schwartz
lacks
the
minimal
requirements
of
education,
training,
skill,
experience,
and
knowledge
to
qualify
him
as
an
expert
in
antitrust
economics
under
Rule
702.
Additionally,
the
court
construes
Schwartz'
methodology
to
be
unreliable.
The
testing
method
Schwartz
utilized,
by
its
own
terms,
admitted
there
was
a
potential
for
error
in
antitrust
matters.
Additionally,
Schwartz'
lack
of
knowledge
in
antitrust
matters
caused
him
to
exclude
a
number
of
steps
that
most
experts
in
this
field
would
find
necessary
in
defining
a
relevant
antitrust
market.
Moreover,
because
Schwartz
closely
works
with
VVL's
president,
there
is
a
potential
for
bias
in
his
testimony.
For
the
foregoing
reasons,
this
court
grants
the
defendants'
motion
to
exclude
the
report
and
testimony
of
Seth
Schwartz.
An
appropriate
order
this
day
shall
follow. [1]
See
Webster
v.
Fulton
County,
No.
CIV.
A.1:96CV2399TWT,
2000
WL
193314,
at
*2
(N.D.
Ga.
Feb.
8,
2000)
(".
.
.
[A]
pretrial
request
for
a
Daubert
hearing
must
be
made
in
a
timely
fashion
or
the
objection
is
waived.
A
pretrial
request
for
a
Daubert
hearing
should
be
made
within
a
reasonable
time
after
the
close
of
discovery
if
the
grounds
for
the
objection
can
be
reasonably
anticipated").
|