"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)

Download PDF
1 2 3 4 5 6 7 8 9 Robert A. Mittelstaedt (State Bar No. 60359) ramittelstaedt@JonesDay.com Craig E. Stewart (State Bar No. 129530) cestewart@JonesDay.com David C. Kiernan (State Bar No. 129530) dkiernan@JonesDay.com Amir Q. Amiri (State Bar No. 271224) aamiri@JonesDay.com 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. 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 OAKLAND DIVISION 13 14 15 16 17 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 18 19 20 21 22 23 24 25 26 27 28 [Proposed] Order 4:05-cv-00037 YGR 1 Presently before the court is Plaintiffs’ Daubert Motion to Exclude Certain Opinion 2 Testimony of Kevin M. Murphy and Robert H. Topel. Having reviewed the papers on file and 3 considered the relevant arguments, this Court hereby DENIES the motion. 4 Plaintiffs ask the Court to exclude one portion of Apple’s expert reports—the portion 5 dealing with statistical significance. Plaintiffs’ motion is based largely on the declaration of their 6 previously undisclosed expert Dr. Jeffrey M. Wooldridge. His declaration, however, directly 7 contradicts the graduate-level textbook he has authored, leading to his admission that if his new 8 opinion on “clustering” were correct, he would need to revise the textbook that he has been using 9 for years. Additionally, Dr. Wooldridge has pointed to no peer-reviewed sources corroborating 10 the opinions and theories advanced in his declaration. Such opinion testimony is invalid under 11 the Supreme Court’s precedent and the Federal Rules of Evidence. See Wagner v. County of 12 Maricopa, 673 F.3d 977, 982 (9th Cir. 2012) (an expert’s analysis should be “supported by the 13 typical Daubert factors ‒ testing, peer review and general acceptance”); Daubert v. Merrell Dow 14 Pharm., Inc., 43 F.3d 1311, 1318 (9th Cir. 1995) (Daubert II) (requiring expert to “point to some 15 objective source” to show conclusions are scientifically valid); Cabrera v. Cordis Corp., 134 F.3d 16 1418, 1423 (9th Cir. 1998) (explaining expert opinion unreliable where expert could not “identify 17 any peer-reviewed research justifying his conclusions”). 18 Indeed, Dr. Wooldridge appears to have inappropriately manufactured his opinions 19 specifically for purposes of litigation. See Cabrera, 134 F.3d at 1423 (expert opinion unreliable 20 where developed “expressly for the purpose of testifying”); see also Johnson v. Manitowoc Boom 21 Trucks, Inc., 484 F.3d 426, 434-35 (6th Cir. 2007) (opinions “conceived, executed, and invented 22 solely in the context of th[e] litigation” are per se inadmissible). 23 Moreover, Plaintiffs never disclosed Dr. Wooldridge testimony during the course of 24 discovery, despite the fact that the parties have litigated the topics on which he has opined for 25 over two years. This alone is grounds to exclude Dr. Wooldridge’s opinions. See Reed v. Smith 26 & Nephew, Inc., 527 F. Supp. 2d 1336, 1348 (W.D. Okla. 2007) (striking declaration of 27 undisclosed expert submitted in support of Daubert motion); see also Moore v. Napolitano, 926 28 F. Supp. 2d 8, 25 n.12 (D.D.C. 2013); Jeffries v. Centre Life Ins. Co., No. 1:02-cv-351, 2004 WL -1- [Proposed] Order 4:05-cv-00037 YGR 1 2 5506494 at *1 (S.D. Ohio Jan. 28, 2004). Further, the Court finds ample evidence in the record that supports the conclusions of 3 Apple’s experts regarding the correlation of standard errors in the regressions submitted by 4 Plaintiffs’ disclosed expert, Roger G. Noll. In light of Drs. Murphy and Topel’s qualifications on 5 the issue and the volume of evidence supporting their conclusions in the academic literature, the 6 Court finds their opinions admissible under Daubert and Fed. R. Evid. 702. 7 IT IS SO ORDERED. 8 9 Dated: ______________, 2014 10 11 Hon. Yvonne Gonzalez Rogers 12 13 SFI-848877v1 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- [Proposed] Order 4:05-cv-00037 YGR

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?