manufacturers, such as bid submission deadlines or the submission of a test report pertaining to their bearing prepared by an independent library.
On July 9, 1981, after three weeks of trial, the jury rendered a verdict on special interrogatories in which it found that Litton was not liable for product defamation, but was liable for both monopolization and attempted monopolization in violation of § 2 of the Sherman Act and assessed damages in the amount of $ 958,691.00. Pursuant to Section 4 of the Clayton Act, 15 U.S.C. § 15, the Court entered judgment in favor of American Bearing on June 10, 1981 in the trebled amount of $ 2,876,073.00. Litton then filed the motions now before the Court.
II. STANDARDS FOR GRANTING MOTIONS FOR JUDGMENT N.O.V. AND NEW TRIAL
In order to grant a motion for judgment n.o.v. the Court must find as a matter of law that the plaintiff failed to adduce sufficient facts to justify the verdict. Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205, 1210 (3d Cir. 1970), cert. denied, 400 U.S. 826, 91 S. Ct. 51, 27 L. Ed. 2d 55 (1970). Such a motion "may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment." 5A Moore's Federal Practice, P 50.07(2) at 50-77 (footnote omitted) (2d ed. 1974); Thomas v. E. J. Korvette, Inc., 476 F.2d 471, 474 (3d Cir. 1973). In making this determination "it is the duty of the trial court to take that view of the evidence most favorable to the party against whom the motion is made ..." 6A Moore's, supra, P 59.08(5) at pp. 59-152 (1979); Bonjorno v. Kaiser Aluminum & Chemical Corp., 518 F. Supp. 102, 105 (E.D.Pa.1981).
Motions for a new trial require the exercise of discretion by the Court, whose "duty is essentially to see that there is no miscarriage of justice." 6A Moore's, supra P 59.08(5), at 59-160 (footnote omitted) (1974), Thomas v. E. J. Korvette, Inc., 476 F.2d 471, 474-75 (3d Cir. 1973). The jury's verdict may be set aside only if manifest injustice will result if it were allowed to stand. The Court may not substitute its own judgment for that of the jury merely because the Court may have reached a different conclusion.
III. LITTON'S MOTION
Litton has asserted numerous and overlapping arguments in support of its motions for judgment n.o.v. or a new trial. In general, Litton claims that American Bearing produced insufficient evidence to support the jury's verdict on the § 2 Sherman Act claims in several material respects; that portions of the Court's jury instructions relating to the Sherman Act claims were erroneous, and; that the Court erred in various evidentiary and discovery rulings, particularly in its failure to grant Litton's motions to strike the testimony of the plaintiff's economist.
At the hearing on Litton's motion, held on February 19, 1982, counsel for Litton focused on the following contentions with respect to its claim for judgment n.o.v.: (1) American Bearing failed to prove that Litton's allegedly unlawful conduct was the proximate cause of injury to American Bearing; (2) that there was insufficient evidence for the jury to find that the relevant market as defined by American Bearing existed and insufficient evidence for the jury to determine the parties' market shares; and (3) that American Bearing failed to prove the exercise of monopoly power by Litton. Litton's argument relating to American Bearing's purported failure of proof centered upon the expert testimony of plaintiff's economist whose testimony constituted an integral part of the proof offered by American Bearing in support of its Sherman Act claims. Litton asserts that his testimony was based on numerous unsupported assumptions and was too speculative and misleading to prove a sufficient basis for the jury's verdict. In addition, Litton argued that the speculative and misleading nature of the economist's testimony, his reliance on unsupported assumptions and his alleged reliance on hearsay statements of a type not reasonably relied upon by experts in the field rendered his testimony inadmissible and that the Court erred in failing to strike his testimony as requested by Litton at trial.
IV. LITTON'S ARGUMENTS RELATING TO THE TESTIMONY OF PLAINTIFF'S ECONOMIST
Litton's arguments in support of its motions for judgment n.o.v. and a new trial are for the most part grounded upon the expert testimony of plaintiff's economist. At trial, Litton moved to strike his testimony in its entirety, asserting that it was speculative, misleading, based on unsupported assumptions and based on hearsay statements of a type not reasonably relied upon by experts in the field. Litton now asserts that the Court erred in denying its motion to strike and relying essentially on these same arguments, asserts that the testimony of the economist was not sufficient evidence upon which a jury could have determined the relevant market and market shares, the existence of proximate cause and the amount of damages. Since the Court has determined that certain critical portions of the economist's testimony should have been stricken for reasons hereinafter discussed and that there has been a miscarriage of justice, the only appropriate remedy is a new trial. Therefore, a lengthy review of the sufficiency of the evidence would be fruitless since, under these circumstances, even if the remaining evidence is insufficient to support the jury's verdict, the Court, in the interest of justice, will exercise its discretion under Fed.R.Civ.Pro. 50(b) and will order a new trial and will deny the motion for judgment n.o.v. in favor of Litton. Cone v. West Virginia Pulp & Paper, 330 U.S. 212, 67 S. Ct. 752, 91 L. Ed. 849 (1947); 5A Moore's Federal Practice P 50.11.
A. The Applicable Legal Principles
Rule 703 of the Federal Rules of Evidence provides:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Under Rule 703 an expert may testify to an opinion based on information which is not necessarily admissible into evidence provided the information is "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Zenith Radio Corporation v. Matsushita Electric Industrial Co., Ltd., 505 F. Supp. 1313, 1322 (E.D.Pa.1980) (hereinafter Zenith Radio ).
When an expert bases an opinion upon facts or data which are not in evidence the question as to whether the facts or data are of the type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject is a matter to be determined by the court. As stated by Judge Becker in Zenith Radio, supra at 1325, "... it is nonetheless plain that courts routinely make the decision whether a particular expert has reasonably based his opinions upon trustworthy underpinnings. * * * Moreover, any other result would open the door to wholesale admission of otherwise inadmissible evidence before the jury not, to be sure, as probative of the truth, but to explain the expert's opinion. Such a result could not have been contemplated by the rule."
In Zenith Radio, supra, a case in which the court determined, in advance of trial, the admissibility of opinions expressed in various expert reports, the court noted that Rule 703 had evolved from an exception to the hearsay rule which had been employed in a number of jurisdictions and which was originally limited to a "traditional mainstream" of cases which the court identified as: cases in which a physician was permitted to testify based upon information received from nurses, patients, radiologists, pathologists, etc.; cases involving expert testimony relating to land valuation based upon comparable sales, and; cases in which courts permitted experts to testify as to the valuation of businesses based upon diverse background sources, including accounting data. See discussion of the history of Rule 703 in Zenith Radio, supra at pp. 1321-1324. Based upon a thorough review of the cases precursing Rule 703, the cases applying Rule 703, Rule 703 itself, the Advisory Notes, and the history of the Rule, Judge Becker set forth a list of factors to be used to guide a court in determining the reasonableness of reliance under Rule 703 in cases falling outside this traditional mainstream of cases. These factors are:
1. The extent to which the opinion is pervaded or dominated by reliance on materials judicially determined to be inadmissible, on grounds of either relevance or trustworthiness;
2. The extent to which the opinion is dominated or pervaded by reliance upon other untrustworthy materials;