Antitrust Law Daily Wrap Up, ANTITRUST—E.D. La.: Pool products purchasers denied “last word” over expert reports, (Jul 11, 2014)

By Greg Hammond, J.D.

An expert reply report, submitted by Direct Purchaser Plaintiffs (DPPs) in antitrust litigation against the largest distributor and manufacturers of pool products in the United States, has been excluded from evidence by the federal district court in New Orleans. In granting the pool product distributor’s and manufacturers’ motion to strike, the court determined that (1) the DPPs failed to provide a good explanation for submitting the reply report more than three weeks after the deadline; (2) the distributor and manufacturers would be prejudiced by the report, if admitted into evidence; and (3) a continuance was highly undesirable (In re: Pool Products Distribution Market Antitrust Litigation, July 9, 2014, Vance, S.).

Background. 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. Consequently, 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 would take several weeks.

Excluded from evidence. In determining whether the report should be excluded from evidence, the court considered four factors: “(1) a party’s explanation for its failure to produce the evidence; (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.”

The court determined that the first factor weighed strongly in favor of exclusion, as the DPPs failed to provide a good reason for the supplemental reply report. Specifically, the court noted that the DPPs unilaterally attempted to have the “last word,” despite the court’s efforts to prevent an “endless spiral of reply reports.” While the second factor was a wash, the third and fourth factors also weighed in favor of exclusion, as (1) the timing of the report—three days prior to Dr. Rausser’s deposition—would prejudice defendants and (2) a continuance would be undesirable given the court’s previous scheduling order and would not “deter future dilatory behavior.” Consequently, the motion to strike was granted and the reply report was excluded from evidence.

The case number is MDL No. 2328.

Attorneys: Russ M. Herman (Herman, Herman, Katz & Cotlar, LLP) for Direct Purchaser Plaintiffs' Liaison Counsel. Thomas J.H. Brill for Indirect Purchaser Plaintiffs' Liaison Counsel. David H. Bamberger (DLA Piper, LLP) for Defendants' Lead Counsel.

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

Cases: Antitrust LouisianaNews