Daubert and Other Gatekeeping Challenges of Antitrust Economists

This paper examines the affect of Daubert v. Merrell Dow Pharms and related gatekeeping decisions on expert testimony since January 2000, focusing primarily on economic testimony in antitrust cases. An analysis of gatekeeping motions on economic testimony taken from two data sets that attempt to track these motions suggests that the courts’ gatekeeping may have created additional barriers to plaintiff antitrust cases, and so may discourage well-qualified economists from taking these cases. These data show that economists appear to be most frequently challenged when providing economic opinions on behalf of the plaintiff in antitrust cases, while defense experts are often unchallenged. Moreover, plaintiff exclusions are much higher than defense expert exclusions. These results suggest further research should be done to test the reliability of the data, determine the causes of the apparent imbalance, and see what actions -- if any -- should be taken to address any imbalance.