Antitrust Law Daily Wrap Up, ANTITRUST—E.D. La.: Despite “disappointing obfuscations,” pool products purchasers may submit new expert report, (Aug 25, 2014)

By Greg Hammond, J.D.

Direct Purchaser Plaintiffs (DPPs) of pool products were permitted to submit a supplemental expert report, despite mishandling the expert’s misinterpretation of the defendants’ pricing and unit-of-measure data, and attempting to drop the new report on the defendants the week of the expert’s scheduled deposition, the federal district court in New Orleans has decided (In re: Pool Products Distribution Market Antitrust Litigation, August 22, 2014, Vance, S.).

DPPs, including pool builders, pool retail stores, and pool service and repair companies, filed suit against Pool Corporation (PoolCorp) and Hayward Industries, Inc., Pentair Water Pool and Spa, Inc., and Zodiac Pool Systems, Inc. (collectively, manufacturers), alleging that PoolCorp and the manufacturers agreed to exclude PoolCorp’s rivals from the pool products market. PoolCorp, a distributor of products used to build and maintain swimming pools, purchased pool products from the manufacturers and subsequently sold them to the DPPs.

The DPPs provided PoolCorp and the manufacturers with a new reply report of their expert, Dr. Gordan Rausser, three days prior to his deposition and over three weeks after the deadline for reply reports. In response, PoolCorp and the pool product manufacturers filed a motion to strike the reply report, arguing that it was substantively different from his previous report and would require their experts to perform a new analysis that could take several weeks. The court originally granted the defendant’s motion to strike the reply report. However, the DPPs requested that the court revisit its order striking the supplemental report, which the court granted.

Geiserman factors. The court reviewed the four Geiserman factors in re-determining whether it should exclude evidence not produced in accordance with its previous order: (1) the DPPs’ explanation for their failure to produce the supplemental report; (2) the importance of the proposed evidence; (3) potential prejudice in allowing the admission of the evidence; and (4) the availability of a continuance to cure such prejudice.

According to the DPPs, Dr. Rausser did not become aware that he had misinterpreted PoolCorp’s pricing and unit-of-measure data until after he reviewed the defendants’ experts’ reply reports. However, instead of immediately explaining to the court the misunderstanding and need for Dr. Rausser to adjust his work, the DPPs stayed “silent while Dr. Rausser tinkered with his model,” which led to “disappointing obfuscations” that “undermined their credibility and obscured the best reason for permitting the report,” the court noted. Consequently, the first factor was deemed neutral, neither in favor nor against permitting the report.

The second, third, and fourth factors weighed in favor of permitting the report, as (1) the contents of the report were important to the DPPs’ case; and (2) any potential prejudice in terms of time and money could be cured by providing the defendants with an additional day to depose Dr. Rausser, reimbursement of attorney fees and expert expenses involved with responding to the new report, and an additional two months for their experts to review and provide a written critique of the report.

The case number is MDL No. 2328.

Attorneys: Russ M. Herman (Herman, Herman, Katz & Cotlar, LLP) for Direct Purchaser Plaintiffs' Liaison Counsel. William Bernard Gaudet (Adams & Reese, LLP) for Defendants' Liaison Counsel. David H. Bamberger (DLA Piper, LLP) for Defendants' Lead Counsel. Wayne J. Lee (Stone, Pigman, Walther, Wittmann, LLC) for Manufacturer Defendants' Liaison Counsel.

Companies: Pool Corp.; Hayward Industries, Inc.; Pentair Water Pool and Spa, Inc.; Zodiac Pool Systems, Inc.

Cases: Antitrust LouisianaNews