Antitrust Law Daily Wrap Up, ANTITRUST—D. Vt.: Dairy farmers not permitted to revise expert's testimony on damages, (May 20, 2014)

By Jeffrey May, J.D.

With trial imminent in an antitrust class action against Dairy Farmers of America, Inc. and others for conspiring to depress prices for raw Grade A milk paid to dairy farmers and to allocate markets in the Northeast United States, the federal district court in Rutland, Vermont, will not allow the complaining farmers to supplement an expert economist's report to increase the amount of alleged damages. The defendants' motion to strike these revisions was granted (Allen v. Dairy Farmers of America, Inc., May 16, 2014, Reiss, C.).

In the action, a seven week trial is set to commence on July 7. A December 2013 opinion (2014-1 Trade Cases ¶78,659) granted in part and denied in part the defendants’ motion to exclude the testimony of the plaintiffs’ expert economist, Gordon Rausser, who is a professor at the University of California at Berkeley. The court excluded testimony to the extent that it would artificially inflate damages. Shortly thereafter, the plaintiffs disclosed new calculations.

The defendants objected to the “new opinions that were not disclosed until . . . nearly two years after the close of expert discovery.” They contended that the new calculations could add between $57 million and $75 million to the plaintiffs’ damages claim, resulting in a potential difference of $171 million to $225 million after trebling.

The plaintiffs unsuccessfully argued that the revised calculations were permissible and even required supplementation of their expert's opinions pursuant to Rule 26 of the Federal Rules of Civil Procedure. The plaintiffs’ characterization of the new calculations as unsurprising and even required was both factually and legally untenable, the court concluded. The plaintiffs failed to offer a rational explanation for failing to disclose the new calculations sooner and made no claim that the new calculations were essential to the presentation of their damages claim at trial, in the court's view.

Allowing the new opinions would cause substantial prejudice to the defendants that could not be fully redressed by permitting another deposition. Re-opening discovery to allow Rausser's new calculations and continuing the trial dates so that the defendants could challenge these opinions also would significantly impact the court's own schedule and its administration of justice, it was noted.

The trial had already been continued once, and the court had allocated almost two months of court time to it, during which time no other cases have been scheduled. In addition, the court was in the process of ruling on the defendants' summary judgment motion, the court explained.

The case is No. 5:09-cv-230.

Attorneys: Danyll W. Foix (Baker & Hostetler LLP) for Alice H. Allen. Amber L. McDonald (Baker & Miller PLLC) for Dairy Farmers of America, Inc.

Companies: Dairy Farmers of America, Inc.

Cases: Antitrust VermontNews