NFL Sunday Ticket Verdict Overturned—Rule 702 Applies to Exclude Witnesses

In a surprising decision in the NFL Sunday Ticket¹ class action litigation, the court granted the defendants’ motion for judgment as a matter of law. The judgment of the jury after the trial was in favor of the plaintiffs² in the amount of $4.7 billion, which could then have been tripled to $14.1 billion. 

The judge in the case, Philip S. Gutierrez, set aside the jury verdict, citing flaws in the testimony of the plaintiffs’ two damages expert witnesses and, subsequent to the trial and verdict, noting that they would be excluded from testifying. In setting aside the verdict as “a matter of law,” the judge noted that, “[w]ithout the testimonies of Dr. (Daniel) Rascher and Dr. (John) Zona, no reasonable jury could have found class-wide injury or damages.” 

As to Rascher, the judge found that his testimony “was not the product of sound economic methodology” and he did not explain how out-of-market telecasts would have been available on cable and satellite without an additional subscription." As to Zona, the judge noted flaws in his “multiple distributor” models because it predicted consumers would have paid more if another service besides DirecTV offered Sunday Ticket and there was an unsupported assumption that another distributor—either cable, satellite, or streaming—would have been available.

In addition to the fact that the jury failed to follow the court’s instructions in determining its verdict, the real key to granting the defendants’ motion to set aside the verdict as a matter of law lied in Rule 702, as currently constructed.³

The changes to the rule, implemented on Dec. 1, 2023, implemented "provisions that strengthen the Judges’ hand as a gatekeeper." These changes, which BVR has noted in a number of articles and blog posts, including our discussion of the rule changes and their implications,⁴ were in part the reason for the set aside. In my personal opinion, these changes in the rule as applied in this case might also be a reason that the expected appeal to the 9th Circuit (for the second time) might help the set aside of the verdict survive the appeal.

The intriguing question was why the two witnesses have been excluded after the trial and after the verdict by the jury. As noted, the judge found that the verdict should be set aside as a result of the jury not following his instructions, but he went to great lengths to build his backup case, which was the fact that the witnesses should have been excluded. The opinion made it clear that the defendants had made Daubert motions before the trial to have the witnesses excluded, but the court denied those motions against both witnesses.

So how did that happen? I discussed this situation with Drew Soshnick, noted family law and litigation attorney from Fagre Drinker. We both agree that the cross-examination at trial brought out the flaws the judge noted in granting this post-trial motion. We do not have enough information to know why there was not sufficient evidence, or at least not sufficient evidence proffered, pretrial to surface the deficiencies of the two witnesses. One would assume that depositions and report submissions (if there were such submissions) would have surfaced the flaws.

Regardless, the judge did note those flaws that were discovered during the trial and used them to remedy the situation. It will be interesting to see what the 9th Circuit does with this appeal.

¹ In re: NFL Sunday Ticket Antitrust Litigation.
² The class of Sunday Ticket subscribers.
³ As of Dec. 1, 2023, Rule 702 was amended and strengthened. 
⁴ "Changes to Rule 702 Federal Rules of Evidence Now Complete," Business Valuation Resources.