United States District Court, D. Colorado
AURARIA STUDENT HOUSING AT THE REGENCY, LLC, a Colorado limited liability company, Plaintiff,
CAMPUS VILLAGE APARTMENTS, LLC, a Delaware limited liability company, Defendant.
ORDER DENYING PLAINTIFF'S MOTION TO STRIKE INITIAL EXPERT REPORT AND GRANTING PLAINTIFF'S MOTION TO STRIKE SUPPLEMENTAL EXPERT REPORT
WILLIAM J. MARTÍNEZ, District Judge.
Plaintiff Auraria Student Housing at the Regency, LLC ("Plaintiff") brings this action against Campus Village Apartments, LLC ("Defendant") for conspiracy to monopolize under Section 2 of the Sherman Act, 15 U.S.C. § 2. This matter is before the Court on the following motions: (1) Plaintiff's "Motion to Strike (Initial) Expert Report of Stephen D. Silberman, Ph.D., ' and Preclude Introduction of Facts and Data Relied Upon By Him There and Exclude his Trial Testimony Relating to Uncharged Offense of Monopolization and Inapplicable Elements of Monopoly Power and Relevant Market" ("First Motion") (ECF No. 178); and (2) Plaintiff's "Motion to Strike Untimely and Improper Supplemental' Expert Report of Stephen D. Silberman, Ph.D., and Preclude Use of That Information to Supply Evidence at Trial" ("Second Motion") (ECF No. 180). For the reasons set forth below, the First Motion is denied, and the Second Motion is granted.
I. LEGAL STANDARD
A district court must act as a "gatekeeper" in admitting or excluding expert testimony. Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2004). Admission of expert testimony is governed by Rule 702, which provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed. R. Evid. 702.
The proponent of the expert testimony bears the burden of proving the foundational requirements of Rule 702 by a preponderance of the evidence. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009).
Plaintiff moves to strike both Dr. Silberman's initial expert report ("Initial Report") (ECF No. 179-2) and his supplemental expert report ("Supplemental Report") (ECF No. 181-4). The Court will discuss each motion in turn below.
A. First Motion: Initial Report
Plaintiff's First Motion raises several arguments in two general categories: (1) the opinions in the Initial Report should be excluded as irrelevant, misleading, confusing, and unhelpful to the jury, because they address monopolization instead of conspiracy to monopolize; and (2) Dr. Silberman's opinions are inadmissible because they rely on insufficient facts or data and are not the product of reliably applied economic principles and methods. (ECF No. 179.)
1. Relevance of Monopolization Opinions
Plaintiff argues that the opinions in Dr. Silberman's Initial Report should be excluded because they address monopolization, not Plaintiff's claim of conspiracy to monopolize. (ECF No. 179 at 1-3.) Plaintiff points out that Dr. Silberman's opinions about monopoly power in a relevant market are pertinent to a monopolization claim, but argues that these opinions have no relevance to a conspiracy claim. ( Id. )
A claim of conspiracy to monopolize under Section 2 of the Sherman Act requires four elements: "(1) the existence of a combination or conspiracy to monopolize; (2) overt acts done in furtherance of the combination or conspiracy; (3) an effect upon an appreciable amount of interstate commerce; and (4) a specific intent to monopolize." TV Commc'ns Network, Inc. v. Turner Network Television, Inc., 964 F.2d 1022, 1026 (10th Cir. 1992) (internal citation omitted). In contrast, a Section 2 monopolization claim requires "(1) the possession of monopoly power in the relevant market and (2) the ...