Antitrust Law Daily Wrap Up, ANTITRUST—S.D.N.Y.: Court admits testimony of nearly all experts in K-Cup antitrust litigation, (Feb 4, 2025)

By Wendy Biddle, J.D.

Most expert testimony was deemed admissible with few exceptions.

In a multi-district antitrust suit involving single use coffee cups and the design of Keurig machines, the court in New York City ruled on nineteen motions regarding admissibility of expert testimony. The court deemed one expert completely inadmissible because the expert’s testimony would usurp the role of the jury. The court also ruled that four experts’ testimony regarding their opinion on intent or damages did not meet the evidentiary requirements, but all other experts and topics were deemed admissible (In Re Keurig Green Mountain Single-Serve Coffee Antitrust Litigation, No. 1:14-md-02542-VSB-SLC (S.D.N.Y. Jan. 30, 2025)).

The plaintiffs in this long-running litigation alleged that Keurig, the manufacturer of coffee makers and its related single-use “K-Cup”, violated Sections 1 and 2 of the Sherman Act, the Lanham Act, and multiple state statutes by, for example, re-designing its coffee makers to render competitors’ cups unusable in Keurig’s machines.

Pending before the court were nineteen Rule 702 motions seeking to exclude testimony in the case. The court considered and ruled on all of those motions in the instant opinion.

Hon. Arthur Gajarsa (Ret.). The court found that Judge Arthur Gajarsa’s testimony would improperly usurp the role of the jury. His opinion was centered around whether Keurig had a reasonable basis to file the litigations in question, which directly addressed the ultimate issue at hand in the sham litigation claims. Such testimony was deemed to substitute the expert’s judgment for that of the jury, which is impermissible.

The court noted that while experts can provide opinions to help the jury decide an issue, they cannot tell the jury what result to reach, especially in terms of legal conclusions. The court emphasized that expert testimony that usurps the role of the trial judge or jury is not helpful and therefore should not be admitted.

Based on these considerations, the court granted the motion to exclude Judge Gajarsa’s testimony.

Hon. James Ware (Ret.) and Hon. Randall Rader (Ret.). Retired judges James Ware and Randall Rader were retained by TreeHouse and McLane to provide expert opinions to rebut the testimony of Judge Arthur Gajarsa. Their testimony was intended to address whether the litigations brought by Keurig had an objective basis.

The plaintiffs offered the testimony of Judges Ware and Rader under protest, indicating that they would only use their testimony if the court permitted Judge Gajarsa’s testimony regarding the objective baselessness of Keurig’s litigations.

Since the court granted the motion to exclude Judge Gajarsa’s testimony, it rendered the need to address the admissibility of Judges Ware and Rader’s testimony moot. Therefore, the court did not reach the defendant’s arguments concerning the admissibility of their expert testimony.

Dr. Gareth Macartney. The court decided to exclude part of Dr. Gareth Macartney’s testimony. Specifically, his expert opinion on damages was excluded, while his liability opinion was allowed to be presented.

Keurig objected to Dr. Macartney’s liability opinions, claiming they narrated record evidence, lacked economic analysis, and extended beyond his expertise as an economist. However, the court found these objections insufficient to warrant exclusion. The court noted that experts are allowed to provide background information that aids the jury, as long as it is relevant to their analysis and not merely a conduit for inadmissible evidence.

Dr. Macartney’s damages opinion was excluded because it did not meet the necessary standards for admissibility. The court emphasized the importance of having a reliable basis for expert testimony, and in this case, found that the damages opinion did not rise to that level.

Despite Keurig’s objections, the court determined that Dr. Macartney’s liability opinions were not speculative or unsupported. He developed a conceptual model for assessing anticompetitive behavior, reviewed a broad range of documents, and conducted original analyses, which provided a sufficient basis for his liability conclusions

Dr. Gary L. French. Keurig’s motion to exclude Dr. French’s testimony was denied in part. While certain opinions regarding the intent or motive of others were excluded, the rest of his testimony was deemed admissible.

Dr. French’s testimony included defining Keurig’s relevant markets, assessing monopoly power, evaluating the harm to competition, and quantifying overcharge damages to the Direct Purchaser Plaintiffs (DPP) Class. The court found these aspects of his testimony admissible, as they did not improperly narrate record evidence or extend beyond his expertise as an economist.

The court excluded Dr. Gary L. French’s opinions concerning Keurig’s state of mind or intent. It is impermissible for experts to opine on a party’s state of mind or motives, as it usurps the role of the jury in determining such subjective matters.

Hal Poret. The court denied Keurig’s motion to exclude the testimony of Hal Poret. Keurig argued that Poret’s consumer survey was methodologically flawed and therefore unreliable. However, the court found Keurig’s challenges insufficient to warrant exclusion.

The court considered several factors to evaluate the validity and reliability of a consumer survey, such as the proper universe being examined, the methodology and execution of the survey, and whether the questions were leading or suggestive. The court found no significant issues with these aspects in Poret’s survey.

The court noted that Keurig’s own survey expert agreed that the owners of the Keurig 2.0 Brewers were the appropriate population to survey, supporting the relevance and appropriateness of Poret’s survey.

Poret’s survey aimed to show that Keurig’s statements misled consumers into believing that the 2.0 Brewer worked only with Keurig’s K-Cups. This was an important aspect of TreeHouse’s false advertising claims, and the court found the survey relevant and admissible to support these claims. The court therefore concluded that Poret’s survey methodology met the necessary standards for admissibility and that Keurig’s objections did not justify excluding his testimony.

Sarah Butler. The court found Sarah Butler qualified to testify on the research standards and methodologies used in Keurig’s testing of competitor cups. Despite Keurig’s objections that her expertise was in consumer surveys rather than laboratory testing, the court concluded that her experience in survey research, market research, sampling, and statistical analysis was sufficient to opine on whether the methodology of a research study allows for statistically valid conclusions.

Keurig challenged the methodology of Butler’s surveys, specifically the At-Home and Away-From-Home surveys, claiming they were methodologically flawed. The court, however, did not find these challenges persuasive. It noted that Butler’s surveys were conducted using commonly accepted survey designs and methodologies.

Keurig objected to Butler’s use of control groups, arguing that she manipulated or did not use them appropriately. The court found that the adjustments made to the control group in the At-Home Survey were justified to account for prior exposure to Keurig’s advertising, and the lack of a control group in the Away-From-Home Survey did not warrant exclusion of her testimony.

Keurig also objected to the use of leading and closed-ended questions in Butler’s surveys. The court determined that closed-ended questions do not inherently render a survey unreliable and that the questions used in Butler’s surveys did not suggest their own answers, thus were not impermissibly leading.

The court concluded that Keurig’s objections did not undermine the reliability of Butler’s surveys to the extent that they should be excluded. The issues raised by Keurig were deemed to affect the weight of the evidence rather than its admissibility.

Dr. Mohan Rao. The court found that Dr. Rao’s testimony was admissible, as it was based on reliable data and methodology, and any objections raised by Keurig pertained more to the weight of the evidence rather than its admissibility.

Keurig argued that Dr. Rao’s testimony should be excluded because it was based on survey data from Mr. Poret and Ms. Butler, which Keurig claimed were inadmissible. However, the court had already determined that the survey data from both experts met the admissibility requirements, thereby providing a sufficient foundation for Dr. Rao’s conclusions.

Keurig objected to Dr. Rao’s methodology, including claims of double counting and reliance on unsupportable assumptions. The court found these objections insufficient to warrant exclusion, noting that Dr. Rao’s assumptions were disclosed and not contradictory or unrealistic.

Keurig also contended that Dr. Rao’s opinions exceeded his expertise, particularly regarding the truth or falsity of Keurig’s statements and consumer behavior. The court found this objection to be based on a misstatement, as Dr. Rao did not evaluate the truth or falsity of the statements but made assumptions for his damages calculations. His opinions on consumer exposure and behavior were within his expertise.

Dr. Phillip Johnson. Overall, the court found that Dr. Johnson’s expert testimony met the standards for admissibility, and the objections raised by Keurig were insufficient to warrant exclusion. The court found that Dr. Johnson had a sufficient factual basis for his damages model, which adequately accounted for lawful and unlawful factors in his analysis. His use of regression analysis and the yardstick method was deemed appropriate for calculating antitrust damages, and his model disaggregated lawful conduct from unlawful conduct effectively.

Keurig’s objections regarding Dr. Johnson’s failure to account for significant lawful factors, such as brand value and cup design differences, were overruled. The court noted that Dr. Johnson’s model was not unreliable due to these factors and that Keurig failed to show that these were substantial variables that needed to be controlled for.

Dr. Johnson’s use of unlicensed single-serve cup manufacturers as benchmarks was upheld as reliable. The court found no merit in Keurig’s objections to the benchmarks used in Dr. Johnson’s analysis.

The court did not find any systemic issues with the missing data or the modeling choices made by Dr. Johnson, such as applying an average overcharge estimate to Walmart. These choices did not undermine the reliability of his opinion to the extent that exclusion was warranted.

Keurig’s argument that Dr. Johnson’s model produced implausible results was based on a modified version of his model by Keurig’s own expert, not on Dr. Johnson’s original model. The court declined to strike Dr. Johnson’s opinion based on a model he did not create.

Dr. Lauren Stiroh. The court found that Dr. Stiroh’s testimony met the standards for admissibility, and objections regarding the weight of her testimony were to be addressed through cross-examination rather than exclusion.

Dr. Stiroh had more than enough information to form a reliable opinion. The court found that any issues Keurig had with her use of specific pieces of evidence were not significant enough to warrant exclusion. These objections were deemed more appropriate for cross-examination rather than exclusion.

Dr. Stiroh conducted a thorough analysis to determine if Keurig’s actions caused economic injury to TreeHouse and estimated the resulting damages and independently verified the data she used, countering Keurig’s argument that her analysis was based on biased evidence provided by TreeHouse’s counsel. This verification lent credibility to her findings and supported the court’s decision to include her testimony.

Dr. David Sibley. Keurig argued that Dr. Sibley provided a biased factual narrative. However, the court found that the background information he provided was necessary to assess the reliability of his economic analysis and was not merely narrative. Therefore, this aspect of his testimony was allowed.

Keurig challenged Dr. Sibley’s opinions on patents and product design as being outside his area of expertise. The court agreed that experts should not offer opinions beyond their expertise and excluded this extraneous testimony.

Dr. Sibley was criticized for offering opinions that amounted to legal conclusions, such as labeling Keurig’s actions as “anticompetitive.” The court excluded this type of testimony, as it would usurp the jury’s role in determining legal conclusions. Dr. Sibley’s opinions about Keurig’s motives and intentions were also excluded because they were outside the scope of proper expert testimony and encroached on the jury’s role.

Despite some exclusions, Dr. Sibley’s testimony regarding the economic impact of Keurig’s actions on competition was deemed within his expertise and was allowed. His analysis was based on various materials, including sales data and business records, to evaluate the claims from an economic perspective.

Dr. Keith Ugone. Dr. Ugone’s critiques were largely focused on economic modeling and damages calculations, areas within his expertise. His role as a rebuttal expert was to challenge the methodologies and conclusions of opposing experts, which the court found permissible.

Dr. Ugone’s opinions on survey inputs used by other experts were based on discussions with other experts, such as Dr. Peter Rossi. The court found that Dr. Ugone’s critiques were not merely recitations of others’ opinions but were his own independent evaluations.

The court did exclude some of Dr. Ugone’s opinions, such as those that might have applied the wrong legal standard for causation. However, it found that his critiques of damages calculations were valid as they focused on whether lawful factors were adequately considered.

The court found no evidence that Dr. Ugone’s testimony would confuse the jury or be more prejudicial than probative, and thus, exclusion under Rule 403 was unwarranted.

Dr. Kevin Murphy. The court found Dr. Murphy’s testimony to be admissible, noting that challenges to his opinions were more appropriately addressed through cross-examination rather than exclusion. Dr. Murphy’s analysis considered relevant economic factors, such as consumer substitution patterns and Keurig’s pricing decisions. The court found this analysis appropriate and relevant for the case, thus not excluding his market definition opinion.

The court disagreed with claims that Dr. Murphy’s opinions flouted prior court holdings. For example, although it was argued that he opined economic harm required total foreclosure, his report applied the “substantial foreclosure” standard consistent with the court’s previous rulings.

TreeHouse objected to Dr. Murphy’s opinions on sham litigation, arguing inconsistency with prior court opinions. The court found no inconsistency, allowing Murphy to argue that plaintiffs’ experts had not established harm to competition from alleged sham lawsuits.

Objections were made that Dr. Murphy ignored and contradicted the factual record. The court maintained that such objections are grounds for cross-examination rather than for exclusion, as they pertain to the weight and credibility of the testimony, not its admissibility.

Mark Wood. Mark Wood was presented as a rebuttal expert to counter the testimony of Bob Giacomelli, who was offered by JBR. The court found that Wood’s testimony was relevant to addressing the conclusions made by Giacomelli regarding consumer perceptions of Keurig-compatible packs.

The court determined that the sources underlying Wood’s opinion were sufficient to demonstrate reliability. It noted that the arguments against Wood’s testimony were more about interpretation rather than the reliability of the sources themselves.

Dr. Marc Hillmyer. The court found that Dr. Marc Hillmyer was qualified as an expert on the biodegradation and compostability of plastics. His experience in sustainable polymers, including biodegradation, chemical recyclability, and reprocessing of polymers, supported his qualification to testify in this case.

Dr. Hillmyer’s methodology was deemed reliable as it was based on credible data. The court agreed with Keurig that the methodology preferred by JBR, which involved conducting specific degradation studies on the OneCups, was not the only appropriate method. This supported the admissibility of his testimony under Rule 702.

The court concluded that Dr. Hillmyer’s testimony would assist the trier of fact in evaluating Keurig’s allegations against JBR. His opinion was relevant to determining whether JBR’s claims about their OneCups being “97% biodegradable” and “compostable” were false and misleading.

Dr. Martin Asher. The court denied Keurig’s motion to exclude the testimony of Dr. Martin Asher, who was the damages expert for Plaintiff Winn-Dixie Stores Inc. Keurig’s objections to Dr. Asher’s analysis were similar to those previously made against Dr. Phillip Johnson, whose testimony was also not excluded. The court found that Dr. Asher’s and Dr. Johnson’s analyses were virtually identical in many respects, and thus, the objections were considered and rejected based on the court’s prior rulings.

The Case is No. 1:14-md-02542-VSB-SLC.

Judge: Broderick, V.

Attorneys: Aldo A. Badini (Winston & Strawn LLP) for TreeHouse Foods, Inc. Daniel Johnson, Jr. (Dan Johnson Law Group, LLP) for JBR, Inc. d/b/a Rogers Family Co. Hollis L. Salzman (Robins Kaplan LLP) for Ney Silverman Insurance Associates, L.L.C. Geoffrey Graham Grivner (Buchanan Ingersoll & Rooney PC) for Green Mountain Coffee Roasters, Inc. Courtney Jack Linn (Orrick, Herrington & Sutcliffe LLP) for Keurig Green Mountain, Inc. f/k/a Green Mountain Coffee Roasters, Inc.

Companies: TreeHouse Foods, Inc.; JBR, Inc. d/b/a Rogers Family Co.; Ney Silverman Insurance Associates, LLC; Green Mountain Coffee Roasters, Inc.; Keurig Green Mountain, Inc. f/k/a Green Mountain Coffee Roasters, Inc.

Cases: Antitrust NewYorkNews