`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF KENTUCKY
`OWENSBORO DIVISION
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`CIVIL ACTION NO: 4:15-CV-00077-JHM
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`CHARLES MORRIS, et al.
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`V.
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`
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`TYSON CHICKEN, INC., et al.
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`
`
`PLAINTIFFS
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`DEFENDANTS
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`MEMORANDUM OPINION AND ORDER
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`
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`This matter is before the Court on Defendants’ Motion to Exclude the Testimony of Kyle
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`Stiegert. [DN 175]. Fully briefed, this matter is ripe for decision.
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`I.
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`BACKGROUND
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`Plaintiffs have poultry growing arrangements with Defendant Tyson Chicken, Inc. [DN 18
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`¶¶ 2–20]. Plaintiffs allege that “Tyson, and its named employees, acted illegally and unconscionably
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`in a manner that prevented [] Plaintiffs from growing chickens in a fair and profitable manner.” [Id.
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`¶ at 32]. Plaintiffs sued Defendants alleging violations of the Packers and Stockyards Act of 1921
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`(PSA), breach of contract, breach of the implied covenant of good faith and fair dealing, and fraud.
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`[Id. at ¶¶ 165–97].1 Defendants retained Stiegert to provide expert testimony to support their claims
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`in this case. Defendants seek to exclude Stiegert’s testimony. [DN 175].
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`II.
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`STANDARD OF REVIEW
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`
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`Federal Rule of Evidence 702 provides that “[a] witness who is qualified as an expert by
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`knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise
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`if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to
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`understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts
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`1 The Court dismissed some of the claims in Plaintiffs’ Amended Complaint. [DN 35]. The claims mentioned here are
`the claims that remain.
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`or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has
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`reliably applied the principles and methods to the facts of the case.” Under Rule 702, the trial judge
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`acts as a gatekeeper to ensure that expert evidence is both reliable and relevant. Mike’s Train House,
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`Inc. v. Lionel, LLC, 472 F.3d 398, 407 (6th Cir. 2006) (citing Kumho Tire Co., Ltd. v. Carmichael,
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`526 U.S. 137 (1999)).
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`Parsing the language of the Rule, it is evident that a proposed expert’s opinion is
`admissible, at the discretion of the trial court, if the opinion satisfies three
`requirements. First, the witness must be qualified by “knowledge, skill, experience,
`training, or education.” FED. R. EVID. 702. Second, the testimony must be relevant,
`meaning that it “will assist the trier of fact to understand the evidence or to determine
`a fact in issue.” Id. Third, the testimony must be reliable. Id.
`
`In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528–29 (6th Cir. 2008). “Rule 702 guides the trial
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`court by providing general standards to assess reliability.” Id.
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`
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`In determining whether testimony is reliable, the Court’s focus “must be solely on principles
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`and methodology, not on the conclusions that they generate.” Daubert v. Merrell Dow Pharm. Inc.,
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`509 U.S. 579, 595 (1993). The Supreme Court identified a non-exhaustive list of factors that may
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`help the Court in assessing the reliability of a proposed expert’s opinion. These factors include:
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`(1) whether a theory or technique can be or has been tested; (2) whether the theory has been subjected
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`to peer review and publication; (3) whether the technique has a known or potential rate of error; and
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`(4) whether the theory or technique enjoys “general acceptance” within a “relevant scientific
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`community.” Id. at 592–94. This gatekeeping role is not limited to expert testimony based on
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`scientific knowledge, but instead extends to “all ‘scientific,’ ‘technical,’ or ‘other specialized’
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`matters” within the scope of Rule 702. Kumho Tire, 526 U.S. at 147. Whether the Court applies
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`these factors to assess the reliability of an expert’s testimony “depend[s] on the nature of the issue,
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`the expert’s particular expertise, and the subject of his testimony.” Id. at 150 (quotation omitted).
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`Any weakness in the underlying factual basis bears on the weight, as opposed to admissibility, of the
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`evidence. In re Scrap Metal Antitrust Litig., 527 F.3d at 530 (citation omitted). See also Brooks v.
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`2
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`Case 4:15-cv-00077-JHM-HBB Document 247 Filed 10/28/20 Page 3 of 13 PageID #: 8810
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`Caterpillar Glob. Mining Am., LLC, No. 14CV-00022, 2017 WL 5633216, at *1–2 (W.D. Ky. Nov.
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`22, 2017).
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`III. DISCUSSION
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`Plaintiffs retained Stiegert to determine whether Tyson’s actions adversely affected
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`competition and to assess their damages. [DN 180 ¶ 11]. Stiegert opines that Tyson exercised
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`monopsony power over Plaintiffs and that they suffered damages as a result. [Id. at ¶¶ 18–19]. He
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`defines a monopsony as “a market structure where there is only one buyer (known as a monopsonist)
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`for a particular good or service, such as chicken growing services.” [Id. at ¶ 63]. Defendants ask that
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`the Court exclude Stiegert’s testimony because (1) he is unqualified to give poultry-related opinions,
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`(2) his opinion on Tyson’s monopsony status is unreliable, and (3) his damage calculations are
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`unreliable. [DN 175 at 12, 16, 33]. The Court addresses each issue in turn.
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`A. Qualifications
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`Defendants argue that since Stiegert has no knowledge, skill, experience, training, or
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`education in the poultry industry and he makes statements outside of his area of expertise, Stiegert’s
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`poultry-related opinions are inadmissible. [Id. at 33]. Plaintiffs respond that Stiegert is “entitled to
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`opine on what data regarding the chicken industry and chickens provides necessary background . . .
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`even though he has not grown chickens himself.” [DN 193 at 10].
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`“To be qualified as an expert witness under Rule 702, an expert need not be a blue-ribbon
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`practitioner with optimal qualifications or have an intimate level of familiarity with every component
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`of a product as a prerequisite to offering expert testimony.” Jackson v. E-Z-GO Div. of Textron, Inc.,
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`326 F. Supp. 3d 375, 387–88 (W.D. Ky 2018) (cleaned up). “In other words, experts need not even
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`have direct experience with the precise subject matter or product at issue.” Id. at 388 (cleaned up).
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`Furthermore, “an expert is permitted wide latitude to offer opinions, including those that are not based
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`3
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`on firsthand knowledge or observation” as long as “the expert’s opinion will have a reliable basis in
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`the knowledge and experience of his discipline.” Daubert, 509 U.S. at 592.
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`While Stiegert’s experience with the broiler growing industry may be lacking, Stiegert does
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`have significant experience in economics. Stiegert is a professor in the Department of Agricultural
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`and Applied Economics at the University of Wisconsin-Madison. [DN 180 at ¶ 1]. Before Stiegert’s
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`almost two decades as a professor at the University of Wisconsin-Madison, he spent eight years as a
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`research-teaching faculty member at Kansas State University. [Id. at ¶ 2]. While he was pursing his
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`doctorate in agricultural economics, he spent four years as a United States Department of Agriculture
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`(USDA) research fellow at Purdue University. [Id.]. Stiegert was also a research assistant for two
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`years at the University of Nebraska-Lincoln, while working on his master’s degree in agricultural
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`economics. [Id.]. His primary research areas are agricultural and food markets, both international
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`and domestic. [Id. at ¶ 3]. Stiegert has over two decades of experience in economic analysis, research,
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`and teaching. [Id. at 80]. He has taught courses such as Agricultural Finance, Econometric Analysis,
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`Applied Microeconomics, Quantitative Methods, and Agribusiness Management.
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` [Id.].
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`Additionally, Stiegert has consulted on antitrust issues. [Id. at 82]. The Court is satisfied that Stiegert
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`has the qualifications to determine whether Tyson’s action adversely affected competition and to
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`assess Plaintiffs’ damages. Defendants concerns about Stiegert’s experience are best suited for
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`cross-examination. See Brooks, 2016 WL 276126, at *3 (finding that an engineering expert’s “lack
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`of practical experience designing safety features on roof bolters is an issue of weight best suited for
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`cross-examination”) (citation omitted).
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`Next, Defendants argue that some of Stiegert’s opinions fall outside the scope of his expertise.
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`[DN 175 at 33]. The opinions that Defendants take issue with relate to the facts and data that Stiegert
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`relies on to reach his economic opinions, which are well within his expertise. See Maiz v. Virani, 253
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`F.3d 641, 665 (11th Cir. 2001) (affirming the district court’s decision to allow an economics expert
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`4
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`to testify on damages related to real estate fraud, even though the expert had no specific real estate
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`experience). To the extent there are weaknesses in Stiegert’s qualifications to testify about a topic
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`related to monopsony power and damages, cross-examination is the appropriate time to address those
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`weaknesses. Stiegert, however, will not be able to testify to poultry-related opinions that have no
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`relation to his ultimate conclusions.
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`B. Reliability
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`Defendants argue that Stiegert’s opinion about Tyson’s monopsony status and his damages
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`calculations are unreliable. [DN 175 at 12, 16]. Plaintiffs respond that Stiegert’s opinion about
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`Tyson’s monopsony power is based on extensive analysis and that Defendants issues with Stiegert’s
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`damages calculations should be left for trial. [DN 193 at 13 , 22].
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`1. Monopsony
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`Defendants argue that Stiegert’s opinion about Tyson’s monopsony status does not meet Rule
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`702’s standard because he did not use reliable principles or methods, he did not reliably apply his
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`principles or methods, and it is not based on sufficient facts or data. [DN 175 at 12].
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`Defendants specifically take issue with who Stiegert includes in the relevant market to
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`determine if Tyson is a monopsony. [DN 175 at 13]. Stiegert relied on information about general
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`practices in the broiler growing services market and the location of the growers who contract with
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`Tyson at Robards to determine the boundaries of the geographic market for Robards. [DN 180 ¶ 71].
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`After determining that Perdue Farms was the only integrator within the geographic boundaries of
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`Robards, Stiegert determined Perdue was not in the relevant market based on testimony from
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`Plaintiffs and the location of the farms of two Plaintiffs in relations to Perdue’s facility. [Id. at ¶¶ 72–
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`76]. Stiegert testified that Tyson being a single integrator and little switching between Perdue and
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`Tyson are the elements that form the basis of his monopsony opinion. [DN 177 Stiegert Dep. 238:22–
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`5
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`239:9]. The weaknesses underlying Stiegert’s opinion on Tyson’s monopsony status go to the weight
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`and not the admissibility of the testimony.
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`Second, Defendants also argue that Stiegert did not reliably apply his methodology because
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`the record contradicts his findings. [DN 175 at 15]. Stiegert determined that Perdue was not in the
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`relevant geographic market, in part, because of Plaintiffs’ testimony that they could not switch to
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`Perdue. For example, Stiegert says, “[b]ecause of Tyson’s monopsony position at the Robards
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`Complex, Tyson could maintain a higher number of days-out2 compared to its representations without
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`fear that growers would switch to another integrator that would offer a lower number of days-out.”
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`[DN 180 ¶ 107]. Defendants claim that Stiegert’s reference to Plaintiffs’ testimony shows the
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`opposite when he says, “John Pinkston, Tim Vincent and Morgan Rickard state they switched from
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`Perdue to Tyson because Perdue had a long out-time . . . .” [Id. at ¶ 73]. The Court does not find
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`Defendants argument persuasive because it is not necessarily contradictory. Also, Defendants
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`concerns such as Stiegert not considering any difference between Tyson and Purdue like changes in
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`grower pay, contract terms, specification requirements, or benefits are the types of issues that should
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`also be explored with vigorous cross-examination. [DN 175 at 15, DN 201 at 13]. The Court finds
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`that Stiegert reliably applied his methodology to determine whether Tyson was a monopsony.
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`Third, Defendants argue that Stiegert’s opinion is not based on sufficient facts or data because
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`he only examined Plaintiffs to evaluate Tyson’s monopsony status rather than a larger number of the
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`growers at Robards [DN 175 at 15]. After careful review of Stiegert’s reports and testimony, the
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`Court finds that Stiegert’s opinion on Tyson’s monopsony status is based on sufficient facts and data
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`because it is based not only on Plaintiffs’ deposition testimony and a phone interview with one of the
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`plaintiffs, but also research. [DN 180 ¶¶ 63–76, DN 180-2 ¶¶ 16–18, 33]. Defendants’ concern about
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`2The number of broiler flocks a grower receives in a year is “flock placement” and the “days-out” refers to the time
`between flocks. [DN 180-1 at 5].
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`6
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`the number of growers Stiegert relied on to determine that Purdue was not in the relevant geographic
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`market goes to the weight of his testimony and not its admissibility.
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`2. Damages
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`Defendants argue that Stiegert’s damages opinions are based on a “speculative and previously
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`rejected method of calculating damages” and that his damage calculations are unreliable. [DN 175 at
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`17]. Stiegert made three damages calculations based on damages from the suppression of the rate of
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`grower pay, lost earnings from the way Tyson deals with condemnation, and damages because of the
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`days-out time period. [DN 180 ¶ 110].
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`a. But-for Methodology
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`The Court must first address Defendants complaint about Stiegert using the but-for
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`methodology. Defendants argue that Stiegert’s damages opinions are based on a “speculative and
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`previously rejected method of calculating damages” because all three of Stiegert’s damage
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`calculations are based on a but-for world. [DN 175 at 17]. The but-for world “is a scenario in which
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`Tyson at the Robards Complex competes with other integrators for the growing services offered by
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`[] Plaintiffs and other growers in the Robards Complex market.” [DN 180 ¶ 109]. In other words,
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`Stiegert “compare[d] the current earnings of [] Plaintiffs with what they would have earned if Tyson
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`did not engage in the practices” that he outlines in his report. [Id.].
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`“Damages calculations in antitrust cases seek to compare plaintiffs' actual experience in the
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`real world with what the plaintiffs' experience would have been, ‘but for’ the antitrust violation.” In
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`re Pool Prod. Distrib. Mkt. Antitrust Litig., 166 F. Supp. 3d 654, 678 (E.D. La. 2016) (citation
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`omitted). In the context of the Sherman Act, the Sixth Circuit has acknowledged that three generally
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`accepted methods for proving antitrust damages are regression analyses, a yardstick test, and a
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`7
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`before-and-after test.3 Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 793 (6th Cir. 2002)
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`(citations omitted). However, the Sixth Circuit has not identified these methods as the only reliable
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`methods.
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`Next, Defendants reliance on In Re Processed Egg Prods. Antitrust Litig., 312 F.R.D. 124
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`(E.D. Pa. Nov. 10, 2015) is misplaced. In that case, Plaintiffs alleged a “conspiracy by the nation’s
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`major egg producers to control and limit the supply of eggs and thereby increase the prices of eggs.”
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`Id. at 129. In a motion for class certification, Plaintiffs relied on Stiegert’s testimony to “demonstrate
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`that common evidence can demonstrate antitrust impact and damages.” Id. at 150. Stiegert used a
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`model to estimate the supply of eggs in the but-for world. Id. at 153. The court determined that one
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`of the reasons the model was flawed was because it “faile[d] to account for the effects on the supply
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`of eggs by producers not involved in the conspiracy.” Id. at 155. The court did not adopt a complete
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`rejection of Stiegert’s use of a but-for methodology as Defendants seem to imply, but rather the court
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`determined the way Stiegert applied the model in that case made it less reliable. This Court will not
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`reject Stiegert’s use of a but-for methodology generally, but will examine how Stiegert applies the
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`principle to each damage calculation to determine if they are reliable. Ultimately, Defendants
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`criticisms of Stiegert for his use of a but-for test and whether he should have used an alternative
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`method go to the weight of Stiegert’s opinions and not their admissibility.
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`
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`3“A multiple regression analysis is useful in quantifying the relationship between a dependent variable . . . and independent
`variables . . . . This type of model can also ‘control for other independent variables so as to isolate and identify the effect
`of a single independent variable on the dependent variable.’” In re Se. Milk Antitrust Litig., 739 F.3d 262, 285 (6th Cir.
`2014) (citation omitted). The yardstick test requires “the expert to analyze the differences in the price of the product at
`issue among meaningfully comparable markets, firms, or locations. It is typically used when comparing profitability
`between similar firms . . . or to compare profit margins within the same company in differently situated markets.”
`Kentucky v. Marathon Petrol. Co. LP, No. 15-CV-354, 2020 WL 2842842, at *7 (W.D. Ky. June 1, 2020) (citations
`omitted). The before-and-after test “compares . . . the prices a plaintiff paid during the period of violations with . . . prices
`paid . . . after the violation period's termination.” In re Pool Prod., 166 F. Supp. 3d at 678 (cleaned up).
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`8
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`b. Suppression of Grower Pay Damages
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`Defendants criticize Stiegert’s suppression of grower pay damage calculation on two basis:
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`(1) Defendants disagree with Stiegert’s reliance on an article to determine that Plaintiffs were paid
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`7% less based on Tyson’s monopsony status, (2) they assert that Stiegert assumes in a but-for world
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`that the Robards growers would be paid based on Tyson’s gross margins. [DN 175 at 19–20].
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`First, when calculating the ratio of Plaintiffs’ weighted average grower pay in 2010 with
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`Tyson’s gross margin excluding grower pay in the same year, Stiegert adjusted the grower pay in
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`2010 upward by 7% because of research that he believes estimates that grower pay in a monopsony
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`market is lower by 7% than in a market with four or more integrators. [DN 180 ¶¶ 119, 121; DN
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`177-13 at 13, DN 180-2 ¶ 72]. Defendants say that Stiegert “did no independent review of the article
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`or its conclusions, nor did he test its applicability to the Robards Complex.” [DN 175 at 20]. They
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`also criticize the article itself to show that it has no “probative force in this case.” [Id.]. For example,
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`Defendants point out that “[t]he article is based on survey responses from 2006” and that “[t]here is
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`no indication that any responses forming the basis of the article included any Robards grower.” [Id.].
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`Defendants also emphasize the article finds 7% lower revenues for growers in a market with a single
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`integrator is an average. [Id.]. As another example, they take issue with Stiegert not examining
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`Plaintiffs’ contracts to see if they were long-term contracts or paid for fuel reimbursements because
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`the article found those factors correlate with an increase in grower pay. [Id. at 21]. Each of
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`Defendants criticisms of Stiegert’s reliance on the 7% figure from the article go to the weight of his
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`testimony and not its admissibility.
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`Second, Defendants argue that Stiegert’s margin-based pay opinions are unreliable because
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`(a) he never does anything to show competitive integrators pay growers based on the company’s gross
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`margins; (b) the only academic support Stiegert offers for that pay system is a reference to his own
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`9
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`article from his days as a graduate student, and (c) Stiegert arrives at an arbitrary number of 30.6%
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`for the percentage of Tyson’s margins that are owed to the growers. [DN 175 at 23].
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`Stiegert explained the economic principles behind his use of gross margins when he said, “[a]s
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`the profit margin of producing chicken increases—that is to say, as increases in the market price of
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`chicken exceed the increases in feed and other costs of producing chicken—the marginal revenue
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`product of [] Plaintiffs’ labor increases.” [DN 180 ¶ 115]. He described what he shows in his damage
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`analysis is that “while Tyson’s gross margin . . . increased, i.e., the value marginal product of the
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`growers’ effort increased, growers share of these margins decreased as the grower pay did not keep
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`up with increases in Tyson’s gross margin before growers were paid.” [Id.]. So, Stiegert used “as
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`the basis for comparing grower pay received by [] Plaintiffs with Tyson’s gross margin, calculated
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`before it pays the growers, for damage analysis.” [Id.]. The source of Stiegert’s data to calculate
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`damages on this basis is from tournament4 information for the Robards Complex, Tyson’s chicken
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`segment financial information from Agri-stats, and Tyson’s annual report form 10-K. [DN 180 ¶ 117,
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`Table 11 at 61]. Stiegert explained that because he only had access to Agri-stats data up to June 2016,
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`he used the average ratio of Tyson’s chicken segment percentage operating margin from Tyson’s
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`10-K. [DN 180 at 61 n.157]. While Stiegert’s reliance on his article “Third World Debt and Wheat
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`Imports: An Analysis for Selected Countries” for support for using a base year for his calculations,
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`may be questionable [DN 177-16, DN 177 Stiegert Dep. 315:21–316:23], the Court is nonetheless
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`satisfied that Stiegert used a reliable method by using gross margins based on his application of
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`economic principles of which he has knowledge based on his education and experience.
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`Stiegert uses 30.6% as the share of grower pay to gross margin in Table 12 of his damage
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`calculation. [DN 180 at 63]. Stiegert said that his estimate of the share of gross margin that should
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`go to the growers is reasonable “[g]iven that the growers have been estimated to contribute
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`4Growers are paid for their performance based on the tournament system. [DN 18 ¶ 45].
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`10
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`approximately half of the capital and [the] vast majority of the labor associated with the production
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`of a whole chicken.” [Id. at ¶ 122]. He described what 30.6% represented when he said it shows that
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`Tyson “before it paid any growers was getting 19 cents as its operating margin, 30.6[%] of that is
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`going back to the growers.” [DN 177 Stiegert Dep. 181:3–9]. It was calculated using 2010 grower
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`pay divided by gross margin in 2010. [Id. at 181:8–9; DN 180 Table 12 at 63]. He assumed that
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`everyone should have received 30.6% of the gross margin from 2010–2018. [DN 177 Stiegert Dep.
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`183:3–13]. It is a benchmarking approach that Stiegert has used before. [Id. at 197:2–10]. Stiegert
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`acknowledges that the percentage does not suggest that it is a constant throughout the entire time
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`period of any economic condition. [Id. at 197:11–14]. The Court is satisfied as to the reliability of
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`the percentage he uses in his calculation.
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`c. Lost Earnings from Condemnation Practices
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`
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`Defendants argue that Stiegert calculating the pay each Plaintiff would have received if Tyson
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`weighed condemned birds at 50% instead using the average weight prescribed by the contract is
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`unreliable. [DN 175 at 29]. Defendant also find Stiegert’s method unreliable because his
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`condemnation damages also stems from Robards’ practice of not paying growers for condemned birds
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`that are used at an animal food processing plant. [Id. at 30].
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`
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`Condemnation is the process of removing birds from processing that are deemed unfit for
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`human consumption as determined by the USDA. [DN 180-1 at 4]. A bird may be wholly condemned
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`or partially condemned. [Id.]. Under the contract, wholly condemned birds are subtracted from the
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`pounds allocated to the grower for payment according to the average weight of the whole birds
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`delivered to the plant. [Id.]. If a bird is partially condemned, growers received full credit for the bird
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`for pay purposes. [Id.].
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`Stiegert asserts that “it is common knowledge that condemned birds weigh approximately [50
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`%] of the weight of a healthy bird.” [DN 180 ¶ 123]. So, he calculates the pay Plaintiffs would have
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`11
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`received if Tyson had weighed the condemned birds at 50% instead of the average weight. [Id.]. The
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`50% figure is from a 1987 Canadian article. [DN 177-17 at 4]. Stiegert relied on this article because
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`he could not “find any data on the . . . actual weights that . . . Tyson was . . . extracting from the
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`flocks.” [DN 177 Stiegert Dep. 118:3–5]. Defendants contend that “[n]owhere in the article is there
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`evidence that this was based on empirical analysis; and [] Stiegert made no effort to do that here.”
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`[DN 175 at 29]. Defendants also highlight that “the Canadian plant at issue handled condemnation
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`and paid average weights exactly as is done under the contract here with Plaintiffs.” [Id.] [emphasis
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`in original]. Like Defendants’ complaints about Stiegert’s reliance on an article for his 7% figure to
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`calculate damages based on suppression of grower pay, each of Defendants criticisms of Stiegert’s
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`reliance on the 50% figure from the Canadian article go to the weight of his testimony and not its
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`admissibility.
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`Stiegert also calculates condemnation damages because Tyson does not pay growers for
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`condemned birds that it uses at their dog food processing plant. [DN 180 ¶ 126]. However, Stiegert
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`does not show in his determination that in a competitive market Tyson would pay growers for chicken
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`meat that it recovers from the condemned birds and uses in its dog food production. See Gen. Elec.
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`Co. v. Joiner, 522 U.S. 136, 146 (1997) (to admit opinion evidence that is connected to existing data
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`only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical
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`gap between the data and the opinion proffered.”). Therefore, Stiegert’s damages calculations of
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`$135,958 based on this practice of condemnation is excluded.
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`d. Days-Out Damages
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`Defendants argue that Stiegert’s damages calculation based on days-out is flawed because (1)
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`it is based on the number of days-out Plaintiffs’ counsel asked him to assume, (2) the assumption is
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`not corroborated by Plaintiffs’ depositions, and (3) the assumption is inconsistent with the contract.
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`[DN 175 at 31–32].
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`Case 4:15-cv-00077-JHM-HBB Document 247 Filed 10/28/20 Page 13 of 13 PageID #: 8820
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`Stiegert was informed that Tyson represented to one of the Plaintiffs that the number of
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`days-out would be 10–14 days in the summer months and 14–21 days in the winter months. [DN 180
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`¶ 127]. Stiegert “used Robards Complex tournament data to calculate the number of days-out between
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`tournaments for each house and aggregated it across the years from 2010 through 2019.” [Id. at ¶
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`130]. Stiegert was asked to assume that the days-out had Tyson honored its representations was 12
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`days in the summer and 17.5 days in the winter.” [Id.]. “Unless the information or assumptions that
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`plaintiff's experts relied on were ‘so unrealistic and contradictory as to suggest bad faith,’ inaccuracies
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`in the underlying assumptions or facts do not generally render an expert's testimony inadmissible.”
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`R.F.M.A.S., Inc. v. So, 748 F. Supp. 2d 244, 269 (S.D.N.Y. 2010) (citation omitted). Here, Stiegert
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`has explained the basis of his assumption and it does not appear to be so unrealistic and contradictory
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`as to suggest bad faith. Defendants can attack the weaknesses in the assumption on
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`cross-examination.
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`IV.
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`CONCLUSION
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`For the reasons set forth above, Defendants’ Motion to Exclude the testimony of Stiegert [DN
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`175] is DENIED IN PART AND GRANTED IN PART.
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`October 27, 2020
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`cc: counsel of record
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