Experts, Daubert, and Judicial Gatekeeping: A Conversation with Edoardo Peruzzi and Christine Bartholomew

Ruled by Reason

On this episode of Ruled by Reason, AAI Senior Counsel David O. Fisher chats with economist Edoardo Peruzzi and antitrust scholar Christine Bartholomew about the role of Daubert challenges in antitrust suits, focusing on the increasing role of Daubert as a gatekeeping device that may be hindering private antitrust enforcement.

The conversation begins with an examination of Peruzzi’s recent working paper, which finds that Daubert challenges have become more frequent in antitrust cases and that, although plaintiffs’ experts are challenged more frequently, defendants’ experts are more often excluded (6:30). Bartholomew places Peruzzi’s findings within a context of increased procedural gatekeeping in antitrust cases, including the conflation of Daubert issues with the requirements of class certification, which she argues has wrongly turned Daubert into an outcome-determinative mechanism that is hindering private antitrust enforcement (22:20).

The group then discusses potential solutions to this problem—including a different admissibility standard for economic testimony, increasing the use of court-appointed experts, and delaying the consideration of admissibility until the eve of trial—but finds none of them to be feasible. (30:15). Instead, they conclude that the solution lies in a return to the language of the Daubert trilogy and its goal of liberalizing the admissibility of expert testimony, which means keeping Daubert questions separate from the standards of class certification and rejecting efforts to treat the “fit” inquiry into a strict requirement of admissibility (40:05).