"The Apple iPod iTunes Anti-Trust Litigation"

Filing 754

Administrative Motion to File Under Seal Opposition to Plaintiffs' Daubert Motion 737 filed by Apple Inc.. (Attachments: # 1 Declaration of Kiernan ISO Admin Motion to Seal, # 2 Exhibit 1 of Kiernan ISO Admin Motion to Seal, # 3 Exhibit 2 of Kiernan ISO Admin Motion to Seal, # 4 Proposed Order Granting Motion to Seal, # 5 Apple's Opp to Pls' Daubert Motion (Redacted), # 6 Apple's Opp to Pls' Daubert Motion, # 7 Declaration of Kiernan ISO Apple's Opp to Pls' Daubert Motion, # 8 Exhibit 1-4 (Redacted), # 9 Exhibit 5-12 (Redacted), # 10 Exhibit 1-2, 6, 9-11, # 11 Proposed Order Denying Plfs' Daubert Motion)(Kiernan, David) (Filed on 1/14/2014)

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Robert A. Mittelstaedt (State Bar No. 60359)
[e-mail]
Craig E. Stewart (State Bar No. 129530)
[e-mail]
David C. Kiernan (State Bar No. 129530)
[e-mail]
Amir Q. Amiri (State Bar No. 271224)
[e-mail]
JONES DAY
555 California Street, 26th Floor
San Francisco, CA 94104
Telephone:
+1.415.626.3939
Facsimile:
+1.415.875.5700
Attorneys for Defendant
APPLE INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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THE APPLE IPOD ITUNES ANTITRUST
LITIGATION

Case No. 4:05-cv-00037 YGR
[PROPOSED] ORDER DENYING
PLAINTIFFS’ DAUBERT MOTION
TO EXCLUDE CERTAIN OPINION
TESTIMONY OF KEVIN M.
MURPHY AND ROBERT H. TOPEL

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[Proposed] Order
4:05-cv-00037 YGR

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Presently before the court is Plaintiffs’ Daubert Motion to Exclude Certain Opinion

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Testimony of Kevin M. Murphy and Robert H. Topel. Having reviewed the papers on file and

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considered the relevant arguments, this Court hereby DENIES the motion.

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Plaintiffs ask the Court to exclude one portion of Apple’s expert reports—the portion

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dealing with statistical significance. Plaintiffs’ motion is based largely on the declaration of their

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previously undisclosed expert Dr. Jeffrey M. Wooldridge. His declaration, however, directly

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contradicts the graduate-level textbook he has authored, leading to his admission that if his new

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opinion on “clustering” were correct, he would need to revise the textbook that he has been using

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for years. Additionally, Dr. Wooldridge has pointed to no peer-reviewed sources corroborating

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the opinions and theories advanced in his declaration. Such opinion testimony is invalid under

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the Supreme Court’s precedent and the Federal Rules of Evidence. See Wagner v. County of

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Maricopa, 673 F.3d 977, 982 (9th Cir. 2012) (an expert’s analysis should be “supported by the

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typical Daubert factors ‒ testing, peer review and general acceptance”); Daubert v. Merrell Dow

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Pharm., Inc., 43 F.3d 1311, 1318 (9th Cir. 1995) (Daubert II) (requiring expert to “point to some

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objective source” to show conclusions are scientifically valid); Cabrera v. Cordis Corp., 134 F.3d

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1418, 1423 (9th Cir. 1998) (explaining expert opinion unreliable where expert could not “identify

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any peer-reviewed research justifying his conclusions”).

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Indeed, Dr. Wooldridge appears to have inappropriately manufactured his opinions

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specifically for purposes of litigation. See Cabrera, 134 F.3d at 1423 (expert opinion unreliable

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where developed “expressly for the purpose of testifying”); see also Johnson v. Manitowoc Boom

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Trucks, Inc., 484 F.3d 426, 434-35 (6th Cir. 2007) (opinions “conceived, executed, and invented

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solely in the context of th[e] litigation” are per se inadmissible).

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Moreover, Plaintiffs never disclosed Dr. Wooldridge testimony during the course of

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discovery, despite the fact that the parties have litigated the topics on which he has opined for

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over two years. This alone is grounds to exclude Dr. Wooldridge’s opinions. See Reed v. Smith

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& Nephew, Inc., 527 F. Supp. 2d 1336, 1348 (W.D. Okla. 2007) (striking declaration of

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undisclosed expert submitted in support of Daubert motion); see also Moore v. Napolitano, 926

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F. Supp. 2d 8, 25 n.12 (D.D.C. 2013); Jeffries v. Centre Life Ins. Co., No. 1:02-cv-351, 2004 WL
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[Proposed] Order
4:05-cv-00037 YGR

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5506494 at *1 (S.D. Ohio Jan. 28, 2004).
Further, the Court finds ample evidence in the record that supports the conclusions of

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Apple’s experts regarding the correlation of standard errors in the regressions submitted by

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Plaintiffs’ disclosed expert, Roger G. Noll. In light of Drs. Murphy and Topel’s qualifications on

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the issue and the volume of evidence supporting their conclusions in the academic literature, the

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Court finds their opinions admissible under Daubert and Fed. R. Evid. 702.

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IT IS SO ORDERED.

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Dated: ______________, 2014

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Hon. Yvonne Gonzalez Rogers

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SFI-848877v1

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[Proposed] Order
4:05-cv-00037 YGR