Before Daubert, the methodologies that experts could rely upon to support their economic reasoning had to be “generally accepted” by the relevant scientific community. The so-called Frye “general acceptance” standard may have appeared to be quite accepting of expert testimony, but it is viewed by many to be too restrictive. It would exclude, for instance, testimony based on new, but nonetheless reliable, methodologies that have not yet been generally accepted. The Supreme Court’s ruling in Daubert made it plain that the Court had intended to expand the kinds of methodologies that experts could use and rely upon when informing judges and juries of their opinions. As stated in the ruling, general acceptance is “not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence...”

However, in practice, Daubert is most often associated with motions to exclude expert testimony. In an antitrust case, the successful exclusion of an expert—and perhaps the mere introduction of a motion in limine to exclude an expert—has serious implications. In light of this possibility, economists and attorneys may be quite reluctant to engage in analyses that could possibly be the subject of a Daubert hearing or a motion in limine.

Where, then, have we come out? Has the passage of Daubert encouraged the introduction and use of economic testimony based on reliable, albeit new, methodologies as the Supreme Court appears to have intended?

If the kind of merger analysis that has been done since the Daubert decision is any indication, it appears that economists and attorneys have not been deterred from conducting analyses that depart from well-trodden paths so as to incorporate important marketplace realities. Economists have, in fact, pushed into new ground to tailor their analyses to specific market situations and facts or to find the data needed when market data were not available. However, the kind of studies that depart from time-honored textbook formulae so as to incorporate relevant and pertinent market facts would certainly be called novel or new. Judges should be mindful that these are also the studies that are the most likely to be useful.

This article was published in The Economics Committee Newsletter, American Bar Association Section of Antitrust Law Economics Committee, Vol. 1, No. 1, Spring, 2001, p. 16–20.