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Casper v. SMG

October 5, 2005


The opinion of the court was delivered by: Irenas, Senior District Judge.


This antitrust case arises out of a labor dispute involving trade show and convention work at the Atlantic City Convention Center. Presently before the Court is the Motion to Strike the Expert Opinions on Labor Related Issues of Dr. Phillip L. Harvey filed by Defendants SMG, Robert McClintock, and South Jersey Regional Council of Carpenters, Local 623 (collectively "Defendants"). For the reasons that follow, the Court will grant Defendants' motion.


To place the present motion in context, a brief discussion of the parties' dispute is in order. Atlantic Exposition Services, Inc. ("AES"), Plaintiff Casper's assignor and predecessor plaintiff in this case, was a contractor who provided workers to set up and dismantle temporary exhibits for trade shows at the Atlantic City Convention Center ("ACCC") and other smaller venues in the Southern New Jersey area. Defendants SMG and McClintock, SMG's employee in-charge, managed the ACCC.

SMG entered into an agreement*fn1 ("Agreement") with Defendant South Jersey Regional Council of Carpenters, Local 623 (the "Carpenters") under which SMG would not subcontract work to employers, including AES, who did not have collective-bargaining agreements with the Carpenters. This agreement prevented AES from using the less expensive Painter's union workers for jobs at the ACCC, allegedly causing AES to "lose marketing advantage, to incur significantly increased labor costs and resulting lost profits." (Compl. at p 21)

AES attacked the Agreement in two different forums. First, AES filed a complaint with the National Labor Relations Board ("NLRB") alleging that the Agreement was an unfair labor practice which violated Section 8(e) of the National Labor Relations Act. In a written opinion, Administrative Law Judge Schlesinger held that the Agreement violated Section 8(e). That holding was affirmed by the NLRB*fn2 and the Third Circuit,*fn3 although only the findings essential to the holding were affirmed.

AES now attacks the Agreement in this Court as a violation of the Sherman Act.*fn4 Although this Court has not yet had the opportunity to address Plaintiff's antitrust claim on the merits, all parties appear to agree that a key legal issue in the antitrust case will be whether the "non-statutory labor exception" to the antitrust laws will apply to the Agreement.


Plaintiff's expert, Professor Philip L. Harvey ("Professor Harvey") is currently an Associate Professor of Law and Economics at Rutgers Law School. He holds a J.D. and a Ph.D. in Economics. It is apparent from Professor Harvey's resume and extensive list of publications that he is most accurately characterized as a lawyer who also holds a doctorate in economics rather than an economist who also holds a law degree.*fn5 In his expert report, he has opined on four specific questions which analyze certain conclusions reached by ALJ Schlesinger and address the three factors that the Third Circuit's Conex opinion identified as prerequisites for the application of the non-statutory labor exception.*fn6 Defendants' present motion seeks to strike the report as impermissible legal opinion. Plaintiff asserts that while legal analysis may be inappropriate in other contexts, in this case Conex "invites, and indeed, may require" the type of analysis undertaken in Professor Harvey's report. (Opp. Br. at p. 7)



The district court must limit expert testimony so as to not allow experts to opine on "what the law required" or "testify as to the governing law." U.S. v. Leo, 941 F.2d 181, 196-97 (3d Cir.1991). "The rule prohibiting experts from providing their legal opinions or conclusions is 'so well established that it is often deemed a basic premise or assumption of evidence law-a kind of axiomatic principle.' In fact, every circuit has explicitly held that experts may not invade the court's province by testifying on issues of law." In re Initial Public Offering Sec. Lit., 174 F.Supp.2d 61, 64 (S.D.N.Y.2001) (citing U.S. v. Leo; other citations omitted).*fn7

The Third Circuit's opinion in United States v. Pecora suggests that the same general rule is applicable in the labor context.*fn8 798 F.2d 614 (3d Cir.1986). In that case, defendants presented two labor law professors as expert witnesses, who testified about the meaning of Section 302 of the Taft-Hartley Act and whether a union was a "representative" as that term was defined by Section 302. The Court noted, "[o]f course, the opinions of witnesses on matters of law or on questions of ultimate fact, to the extent they depend on legal issues, are binding neither on this court, nor the district court." Id. at 620 n. 2.

Here, throughout his report, Professor Harvey relies on case law and statutes, applying them to the "contemporaneous documentary record" and "oral testimony"*fn9 in this case, to answer legal questions. For example, answering the first of four questions asked of him, Professor Harvey concludes that he "agrees" with ALJ Schlesinger's determination that "SMG was not an employer in the construction industry for purposes of Section 8(e) [of the National Labor Relations Act]."*fn ...

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