Antitrust Law Daily Wrap Up, ANTITRUST—E.D. Pa.: Egg purchasers denied exclusion of egg producers’ expert, (Sep 1, 2016)

By Jody Coultas, J.D.

A motion to exclude expert testimony offered by egg producers, in an antitrust suit filed by direct and indirect egg producers, was denied by the federal district court in Philadelphia. The expert was qualified to testify to the subject matter and the testimony was sufficiently reliable and properly applied to the facts of the case (In re: Processed Egg Products Antitrust Litigation, August 30, 2016, Pratter, G.).

Direct and indirect egg purchasers have alleged that the nation’s major egg producers conspired to control and limit the supply of eggs and thereby increased egg prices. All Plaintiffs moved to exclude the testimony and opinions of Dr. Michael Darre, a proposed animal welfare expert retained by United Egg Producers, Inc., United States Egg Marketers, Inc., Cal-Maine Foods, Inc., Rose Acre Farms, Inc., R.W. Sauder, Inc., Moark, LLC, and Norco Ranch Inc.

A witness, qualified as an expert by knowledge, skill, experience, training, or education, may testify if: (1) the expert’s testimony will help the trier of fact to understand the evidence or to determine a fact in issue; (2) the testimony is based on sufficient facts or data; (3) the testimony is the product of reliable principles and methods; and (4) the expert has reliably applied the principles and methods to the facts of the case.

Qualifications. Dr. Darre had specialized expertise that may assist the finder of fact and was qualified to testify as an expert in animal welfare, according to the court.An expert is qualified to give expert testimony if he/she possesses specialized expertise, a requirement that is interpreted "liberally." The purchasers argued that Dr. Darre was not qualified to testify about animal welfare because the subject required expertise in economics and "other fields beyond just animal or poultry science." However, the expansive multi-disciplinary definition of "animal welfare" proffered by the purchasers would virtually eliminate anyone from testifying as an expert because it was hard to conceive of anyone who has expertise in all of the subjects included in the purchasers’ definition.

Reliability. Dr. Darre’s testimony was the product of reliable principles and methods, according to the court. When an expert testifies to "scientific knowledge," the expert’s opinions must be based on the science rather than subjective belief or unsupported speculation. The purchasers’ arguments that Dr. Darre’s report and testimony were not reliable went to the weight of the testimony, rather than reliability. Any issues the purchasers had with Dr. Darre’s methods and conclusions could be raised on cross examination.

Application of methods to facts. The purchasers’ argument that Dr. Darre’s opinions did not fit the case went to the weight of Dr. Darre’s testimony, and not to its admissibility, according to the court. The purchasers took issue with Dr. Darre’s opinion that United Egg Producers, Inc.’s guidelines resulted from the pressure of customers and the animal rights movement, as well as his recounting of the factual background that led to the adoption of the guidelines. Also, the purchasers objected to Dr. Darre’s opinions regarding whether the "100% rule," phased implementation, and house averaging make sense because he did not use any particular expertise in reaching these conclusions. However, Dr. Darre’s review of the factual record put his conclusions in context, and to the extent he failed to incorporate particular documents or facts was an issue that the purchasers could raise on cross examinations. Dr. Darre’s experience in poultry management and hen welfare underscored his opinions on the implementation protocols, and the purchasers may present their own experts’ analysis at trial, as well as to lay out any limitations they perceive with respect to Dr. Darre’s analysis.

The case is No. 08-md-2002.

Attorneys: Mindee J. Reuben (Lite DePalma Greenberg, LLC), Stanley D. Bernstein (Bernstein Liebhard LLP), Stephen D. Susman (Susman Godfrey LLP) and Michael D. Hausfeld (Hausfeld LLP) for Direct Purchaser Plaintiffs. Ruth S. Shnider (Stinson Leonard Street LLP) and Carrie Mahan Anderson (Weil, Gotshal & Manges LLP) for Michael Foods, Inc. Donald M. Barnes (Porter, Wright, Morris & Arthur, LLP) for Rose Acre Farms, Inc. Veronica Smith Lewis (Gibson, Dunn & Crutcher LLP) for Cal-Maine Foods, Inc. Donald M. Barnes (Porter Wright Morris & Arthur LLP) and Nathan P. Eimer (Eimer Stahl LLP) for Moark, LLC and Norco Ranch, Inc.

Companies: Michael Foods, Inc.; Rose Acre Farms, Inc.; Cal-Maine Foods, Inc.; Moark, LLC; Norco Ranch, Inc.; T.K. Ribbing’s Family Restaurant, LLC; Lisciandro’s Restaurant; Eby-Brown Company LLC; Karetas Foods, Inc.

Cases: Antitrust PennsylvaniaNews