Antitrust Law Daily Wrap Up, ANTITRUST NEWS—D. Kan.: Parties in urethane multidistrict litigation struggle with expert testimony, (May 20, 2014)

By Greg Hammond, J.D.

A class of direct purchasers of urethane chemical products, who brought various antitrust class action suits against urethane chemical producers, was not entitled to exclude a substitute damages expert’s testimony that offered new opinions as to the validity of the previous expert’s models and methodologies, the federal district court in Kansas City, Kansas ruled. However, the producers successfully struck the purchasers’ supplemental expert report, which should have been submitted at an earlier time (In re: Urethane Antitrust Litigation, May 16, 2014, Lungstrum, J).

Background. This multidistrict litigation case involves various class action suits arising from an alleged antitrust price fixing conspiracy among urethane chemical producers. During the course of litigation, the producers’ damages expert became disabled, and they consequently filed a motion to substitute the damages expert with Dr. Leslie Marx. However, the court did not allow Dr. Marx to create her own models and methodologies, but restricted her testimony to endorsing and defending the previous damages expert’s opinions. The direct purchasers of the products, who brought action against the producers, filed a supplemental expert report in response to Dr. Marx’s testimony. The case was before the district court on the purchasers’ motion to exclude Dr. Marx’s expert testimony and the producers’ motion to strike the purchasers’ supplemental expert report.

Motion to exclude. The purchasers filed a motion to exclude Dr. Marx’s testimony, arguing that it exceeded the scope of the substitution allowed by the court. However, because the bulk of the purchasers’ motion was reasserting previous challenges to the original damages expert’s models and methodologies, of which the court previously expressed the transferor court would be required to resolve on remand, the district court decided to leave this issue pending. The remaining portion of the motion to exclude was denied, as the court determined that Dr. Marx properly offered new opinions to defend the original damages expert’s models and conclusions, and it did not prejudice the producers.

Motion to strike. The court also granted the producers’ motion to strike the purchasers’ supplemental expert report, reasoning that the expert’s new opinions should have been offered in initial disclosures and that Dr. Marx’s opinions did not open the door to new criticisms from the purchasers. In addition, the court determined that the producers would suffer unfair prejudice if the supplemental expert report was permitted, as they would no longer be able to rebut the expert’s new criticisms. Consequently, the producers’ motion to strike the supplemental expert report was granted.

The case number is 04-1616-JWL.

Attorneys: Christopher T. Leonardo (Adams Holcomb LLP), Elaine Metlin (Dickstein Shapiro) and Gloria B. Solomon (Trout Cacheris, PLLC) for Carpenter Co. and Woodbridge Foam Corp. David C. Eddy (Nexsen Pruet, LLC) for Dash Multi-Corp, Inc. Andrew Stanley Marovitz (Mayer, Brown, Rowe & Maw LLP) and Floyd R. Finch , Jr. (Floyd Finch Law Offices) for BASF AG.

Companies: Carpenter Co.; Woodbridge Foam Corp.; Dash Multi-Corp, Inc.; BASF AG

Cases: Antitrust KansasNews