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

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).

GUESTS

Edoardo Peruzzi is a postdoctoral researcher at Leibniz University Hannover. He studied philosophy and economics at the Scuola Normale Superiore, the University of Pisa, and the University of Siena. He was a visiting scholar at the TINT Centre for Philosophy of Social Science at the University of Helsinki and the Center for the History of Political Economy at Duke University. During his doctoral research, Edoardo studied the application of economic theory in legal proceedings, employing tools from philosophy of economics, philosophy of science, and empirical analysis.

Christine Bartholomew is the Vice Dean for Academic Affairs, a professor of law at University at Buffalo School of Law, and an associate editor for the ABA Antitrust Law Journal. Her academic publications have appeared in many leading academic journals and have been cited by state and federal courts and major news outlets. She is also the co-editor of the ABA’s forthcoming Antitrust Daubert Handbook. Prior to joining academia, she served in executive and lead counsel positions for numerous national, multi-million-dollar antitrust cases.