United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT

        ___________

         No. 98-3732
        ___________

Concord Boat Corporation; Galaxie           *
Boat Works, Inc.; Sea Arrow Marine,         *
Inc.; Mariah Boats, Inc.; Harris Kayot,     *
Inc.; Armada Manufacturing Company,         *
Inc.; Baha Cruisers/FRP Industries, Inc.;   *
Campion Marine, Inc.; Caravelle Boats;      *
KCS International/Cruisers, Inc.; Mirage    *
Holdings, Inc.; Play Time                   *
Manufacturing By Ohio Marine                *
Distributor, Inc.; Powerquest Boats,        *   Appeal and Cross Appeal from the
Inc.; Silverton Marine Corporation;         *   United States District Court for
Independent Boat Builders, Inc.; WTYS       *   the Eastern District of Arkansas.
No. 4 Inc., doing business as Thompson      *
Boat Co.; Century Craft Industries, Ltd.,   *
formerly known as Vanguard Industries;      *
Avenger Manufacturing; G W Invader;         *
Malibu Boats West; Maverick Boat            *
Company, Inc.; Weeres Industries            *
Corporation; Doral International, Inc.;     *
Albermarle Boats, Inc.,                     *
                                            *
             Plaintiffs - Appellees,        *
   v.                                       *
                                            *
Brunswick Corporation, a Delaware           *
corporation,                                *
                                            *
              Defendant - Appellant,        *
__________                                  *

National Association of Manufacturers,      *
                                         *
      Amicus on Behalf of Appellant.     *

      __________

       98-4042
      __________

Concord Boat Corporation; Galaxie         *
Boat Works, Inc.; Sea Arrow Marine,       *
Inc.; Mariah Boats, Inc.; Harris Kayot, *
Inc.; Armada Manufacturing Company, *
Inc.; Baha Cruisers/FRP Industries, Inc.; *
Campion Marine, Inc.; Caravelle Boats, *
Inc.; KCS International/Cruisers, Inc.;   *
Mirage Holdings, Inc.; Play Time          *
Manufacturing By Ohio Marine              *
Distributor, Inc.; Powerquest Boats,      *
Inc.; Silverton Marine Corporation;       *
Thompson Boat Company; Independent *
Boat Builders, Inc.; WTYS No. 4 Inc., *
doing business as Thompson Boat           *
Company; Century Craft Industries, Ltd., *
formerly known as Vanguard Industries; *
Avenger Manufacturing; G W Invader; *
Malibu Boats West; Maverick Boat          *
Company, Inc.; Weeres Industries          *
Corporation; Doral International, Inc.;   *
Albermarle Boats, Incorporated,           *
                                          *
              Plaintiffs - Appellants,    *
   v.                                     *
                                          *
Brunswick Corporation, a Delaware         *
corporation,                              *
                                          *
               Defendant - Appellee,      *

                                        -2-
__________

National Association of Manufacturers,*
                                      *
      Amicus on Behalf of Appellee.   *
                                 ___________

                               Submitted: September 15, 1999
                                   Filed: March 24, 2000
                                    ___________

Before McMILLIAN and MURPHY, Circuit Judges, and BOGUE,1 District Judge.
                          ___________

MURPHY, Circuit Judge.

       A number of boat builders2 brought this antitrust action against stern drive engine
manufacturer Brunswick Corporation (Brunswick) for violations of Sections 1 and 2
of the Sherman Act, 15 U.S.C. §§ 1 and 2 (1994), and of Section 7 of the Clayton Act,
15 U.S.C. § 18 (1994). Brunswick counterclaimed, arguing that the boat builders had
themselves conspired to restrain trade in violation of Section 1 of the Sherman Act.
The case was tried to a jury for ten weeks, and a verdict was returned in favor of the
boat builders for $44,371,761. Post trial motions were filed by both sides, and
judgment was eventually entered for the boat builders in the amount of $133,115,283,
plus $7,783,224 in attorney fees and $1,267,424 in costs. The district court granted



      1
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
      2
        The plaintiffs include twenty four corporations that manufacture and sell
recreational boats; they are located in various states, including Arkansas, California,
Florida, Illinois, Indiana, Kentucky, Texas, Michigan, Minnesota, New Jersey, North
Carolina, Ohio, Washington, Wisconsin, and Canada. An additional party plaintiff is
an Illinois buying cooperative composed of recreational boat manufacturers.

                                           -3-
Brunswick's motion for judgment as a matter of law on its counterclaim, but denied its
motions for a new trial and for judgment as a matter of law on the boat builders' claims.
It also denied the boat builders' motion for equitable relief. Both sides appeal, and we
reverse.

                                            I.

                                            A.

       Neither side contests the finding of the jury that the relevant market is the market
for inboard and stern drive marine engines. Since the early 1980s there have been a
number of manufacturers in the market, including inboard manufacturers PCM, Indmar,
Crusader, Volvo, Marine Power, MTU, Caterpillar, Detroit Diesel, Cummins, and
Toyota, and stern drive manufacturers Brunswick, Outboard Marine Corporation
(OMC), Volvo Penta of the Americas (Volvo), and Yamaha. In this opinion we
employ the term "stern drive engines" to include both types of engines.

       The manufacturers use standard automobile engine blocks to make stern drive
engines for motor boats. They “marinize” the automobile engines and equip them with
a drive system and then sell them to boat builders who may be affiliated with the
manufacturer or may be independent buyers. The boat builders install the engines in
their brand name boats and sell the completed boats to dealers. Stern drive engines are
used primarily in recreational power boats known as runabouts, which are typical water
skiing boats, and in cruising boats, which are larger and more expensive boats and
usually have cabins. Runabouts and cruising boats together make up about 40% of all
recreational power boats.

     Brunswick has been the market leader in stern drive engine manufacturing for
many years, and by 1983 it had earned a 75% market share. Beginning in 1982 it
employed McKinsey & Company (McKinsey) to provide consulting services to its

                                           -4-
engine business. McKinsey consultants suggested various ways for Brunswick to
increase the sales of its engines. In 1984 Brunswick began to offer market share
discounts to boat builders and dealers. Several of its competitors, including Volvo and
OMC, also offered market share discounts at about the same time. Under the
Brunswick programs, boat builders and dealers could agree to purchase a certain
percentage of their engine requirements from Brunswick for a fixed period of time in
exchange for a discount off the list price of the engine. From 1984 to 1994, Brunswick
offered a 3% discount to boat builders who bought 80% of their engines from the
company, a 2% discount for 70% of all purchases, and a 1% discount for those who
took 60% of their needs from Brunswick. For the 1995 to 1997 model year program,
the market share requirements were reduced so that the maximum 3% discount could
be earned by buying 70% from Brunswick; customers could receive a 2% discount for
65% market share and 1% for 60% market share. Another feature was added to the
program in 1989 to offer long term discounts of an additional 1 or 2% to anyone who
signed a market share agreement for two to three years.3 Boat builders also could
receive a volume discount of up to 5% based on the quantity of engines purchased.
Brunswick attempted to increase its market share requirement to 95% in its proposed
1994 "Industry Growth Program," but was unsuccessful due to serious backlash from
boat builders. The market share discounts were eliminated entirely in the middle of
1997.

      Neither the regular market share discount program, the long term program, nor


      3
        Four financially troubled boatbuilders--Baja, Porter, Pro-Line, and Fountain--
entered into long term contracts with Brunswick in exchange for financial assistance.
The contracts were for three to five years and, in the case of Baja and Porter, they
contained some provisions extending beyond five years. The Baja and Fountain
contracts required those companies to purchase 100% of their engines from Brunswick.
Porter was required to purchase 99%, and Pro-Line's contract contained a 50% market
share threshold. The boat builders' expert testified that these companies made up about
5% of the stern drive engine market. See Tr. at 1179.

                                          -5-
the volume discount program obligated boat builders and dealers to purchase engines
from Brunswick, and none of the programs restricted the ability of builders and dealers
to purchase engines from other engine manufacturers. Builders and dealers were able
to buy up to 40% of their engines from other manufacturers and still obtain a discount
from Brunswick. Several boat builders chose to take a higher percentage of their
engines from Brunswick than necessary to qualify for its largest market share discount;
some purchased 95 or 100% of their engines from Brunswick.

       In the year after Brunswick and other stern drive engine manufacturers instituted
market share discount programs, Brunswick’s largest domestic competitor, OMC,
introduced a new stern drive engine called the “Cobra.” The Cobra engine registered
solid early sales, which increased OMC’s stern drive engine market share and
simultaneously reduced Brunswick’s market share to approximately 50%. Brunswick
began exploring its competitive options, and in December 1986 it purchased two of the
largest boat builders, U.S. Marine (Bayliner) and Ray Industries (Sea Ray).4 These
purchases were noted throughout the boating industry. Brunswick hoped this vertical
integration would enable it to synthesize engine manufacturing and boat building,
leading to a higher quality and less expensive product.



      4
        Brunswick also made several other acquisitions that were not part of the main
focus of the boat builders' Clayton Act claims. In 1987 it made a small asset purchase
from BMW Marine Diesel, a European diesel engine manufacturer; Brunswick hoped
this would enable it to compete with Volvo in Europe. See Tr. at 4552. In 1990 it
acquired Kiekhaefer Aeromarine, which annually produced about sixty high
performance stern drive engines that were priced at more than $50,000. Neither of
these acquisitions involved products that competed in the relevant market, nor did they
occur during the limitations period. See discussion Part III.A. The boat builders
characterized both companies as "small players" in their closing argument at trial. See
Tr. at 6632. In 1995 Brunswick bought boat builder Baja Cruisers which had 2.8% of
the stern drive engine market; the boat builders' expert testified that Baja was not really
a significant player in the market. See 

1189.

                                           -6-
       Other events occurred about this time which improved Brunswick's competitive
position. OMC’s success with the Cobra was short lived because the company began
receiving complaints that the engine’s shift cable was defective. After a year
investigating complaints, OMC was forced to recall all of its Cobra engines in 1989.
This resulted in significant market share gains by Brunswick. Brunswick also
experienced a market share gain in 1993 as a result of mistakes made by Volvo and
OMC when they merged, leading to decreased consumer confidence in their products.
In 1994 Yamaha, another stern drive engine manufacturer, left the market. The price
of Brunswick's stern drive engine increased between 1986 and 1997 from $4775 to
$4984, fluctuating both upward and downward in the interim.

                                          B.

       The boat builders filed this antitrust suit in 1995, more than ten years after
Brunswick and other stern drive engine manufacturers first instituted market share
discount programs, and over nine years after Brunswick acquired Bayliner and Sea
Ray. They alleged that Brunswick had violated Section 7 of the Clayton Act by
acquiring Bayliner and Sea Ray in 1986 and subsequently holding them, enabling
Brunswick to create a monopoly in the stern drive engine market. They contended that
Brunswick had used its market share discounts, volume discounts, and long term
discounts and contracts, coupled with the market power it had achieved in purchasing
Bayliner and Sea Ray, to restrain trade and to monopolize the market in violation of
Sections 1 and 2 of the Sherman Act. According to the boat builders, Brunswick's
monopolization of the market enabled it to charge supracompetitive high prices for their
engines, which drove other engine manufacturers out of business. The boat builders
also claimed that Brunswick had fraudulently concealed both the special deals that they
gave to certain boat builders and the stern drive engine that Bayliner was developing.



      Brunswick denied the allegations and counterclaimed against several of the boat

                                          -7-
builders, alleging that they had conspired to boycott Brunswick engines at industry boat
shows and to price Brunswick engines higher than competitors' engines in violation of
Section 1 of the Sherman Act. Brunswick also brought three state law counterclaims
against two of the boat builders, alleging that they had submitted falsified market share
affidavits.

       Both sides filed pretrial motions, including Brunswick's motion in limine to limit
the testimony of Dr. Robert Hall, the expert witness for the boat builders. Brunswick
argued that Dr. Hall's economic model was unreliable and did not have the capacity to
distinguish between lawful and unlawful market behavior; his opinion therefore could
not provide the jury with an adequate basis to assess antitrust liability or damages. At
a pretrial Daubert hearing,5 the boat builders assured the district court that Dr. Hall's
testimony and economic model would segregate unlawful conduct by Brunswick from
lawful behavior that had contributed to its market share. The district court did not
make specific findings regarding Dr. Hall's methodology or the bases of his opinions,
but it ruled that the jury could draw its own conclusions about the value of his
testimony.

      During the course of the ten week trial, both parties called numerous witnesses
and presented over 800 exhibits, including voluminous economic data, charts and
graphs made in the course of business and for trial purposes, internal business
memoranda, consultants' reports, deposition testimony, and much more. The boat
builders called over 30 witnesses, many of whom testified by videotaped deposition.
Among these witnesses were owners of some of the plaintiff boat building companies,
as well as several current and former Brunswick employees. Brunswick called some
15 witnesses, including its own employees and owners of boat building companies and
boat dealerships. Expert witnesses presented differing interpretations of stern drive
engine market events and of Brunswick's conduct in that market.

      5
          See Daubert v. Merrell Dow Pharms., Inc., 

, 592 (1993).

                                          -8-
       The boat builders' primary evidence to establish Brunswick's antitrust liability
was presented by their sole expert, Dr. Hall, a professor of economics at Stanford
University. He testified that Brunswick had monopoly power in the stern drive market
that enabled it to use its market share discount programs to impose a "tax" on boat
builders and dealers who chose to purchase engines from other manufacturers. He
defined the "tax" as the discount these purchasers gave up by not buying from
Brunswick. He stated that Brunswick's program effectively required its competitors to
charge substantially lower prices in order to convince customers to purchase from them
and forgo the discount. Dr. Hall further testified that the discount programs, combined
with the market power Brunswick acquired by purchasing Bayliner and Sea Ray,
enabled Brunswick to capture 78% of the stern drive engine market. According to Dr.
Hall, other manufacturers could not enter into stern drive engine manufacturing as a
result of Brunswick's having such a high percentage of the market. He concluded that
the discount programs were anticompetitive.

       In support of the boat builders' damage claim, Dr. Hall relied on the Cournot
model of economic theory that posits that a firm "maximizes its profits by assuming the
observed output of other firms as a given, and then equating its own marginal cost and
marginal revenue on that assumption." 4 Phillip E. Areeda et al., Antitrust Law: An
Analysis of Antitrust Principles and Their Application ¶ 925a (rev. ed. 1998). Dr. Hall
postulated that in a stern drive engine market that was competitive, Brunswick and
some other firm would each maintain a 50% market share. Under this theory, any
market share over 50% would be evidence of anticompetitive conduct on Brunswick's
part. Since Brunswick at various points in time had garnered a market share as large
as 78% percent, Dr. Hall concluded that it had engaged in anticompetitive conduct and
that the boat builders had been overcharged at the moment Brunswick's market share
surpassed the 50% threshold.

      Brunswick moved for judgment as a matter of law at the close of the boat
builders' case. The district court heard arguments on the motion but declined to rule

                                          -9-
on it at that stage. Brunswick then called its various witnesses, including two expert
witnesses. Dr. Frederick Warren-Boulton, former chief economist for the Antitrust
Division of the United States Department of Justice, testified that Brunswick's discount
programs served efficiency and business purposes by improving the predictability of
engine demand and by helping to keep manufacturing costs to a minimum. He
explained that the discount programs encouraged competition in the boat building
industry by providing discounts to smaller boat builders who otherwise would not be
able to order sufficient quantities of engines to qualify for strict volume discounts. Dr.
Richard Rapp, an economist who is president of National Economic Research
Associates, testified that there was no rational basis by which Dr. Hall's model could
identify alleged overcharges. He pointed out that the Hall model used a mechanical
formula to determine Brunswick's alleged overcharge percentage for any year. The
only independent variable in the formula was Brunswick's stern drive market share.
See Tr. at 5288-91. According to the formula, an overcharge was calculated anytime
Brunswick's market share surpassed 50%. See 

at which Brunswick sold
its engines was therefore irrelevant for purposes of the formula because the overcharge
amount was related solely to Brunswick's market share. See 

was submitted to the jury with a detailed verdict form divided into a
number of sections.6 The jury deliberated for a day and a half before returning its
verdict. It found that Brunswick had violated three antitrust statutes, Sections 1 and 2
of the Sherman Act and Section 7 of the Clayton Act. The jury awarded a total of
$44,371,761 in answer to a question that asked it to assess the individual damages
suffered by each boat builder as a result of Brunswick's "antitrust violation or
violations." Although the jury found liability for all three antitrust claims, the form of
the verdict did not require it to specify what amount of damages was caused by each
type of antitrust violation. The jury was asked, however, to consider damages for three


      6
      A copy of the verdict form with the jury's answers is attached to this opinion.
See Appendix.

                                          -10-
separate time periods: one ending December 7, 1991,7 one from that date to the day
of the verdict, and one for the post verdict period. It found damages only for the period
starting December 7, 1991, and running to June 19, 1998, the date of the verdict. It
rejected the boat builders' fraudulent concealment claim, which would have extended
the four year limitations period, by awarding no damages for the period before
December 7, 1991. The jury also found for the boat builders on Brunswick's
counterclaim for unreasonable restraint of trade in violation of Section 1 of the Sherman
Act and for state law violations.

                                           C.

       Both sides filed post trial motions. Brunswick moved for judgment as a matter
of law on Count 1 of its counterclaim, alleging that the boat builders had engaged in a
per se unlawful conspiracy to boycott its engines at industry boat shows and to price
its engines at a disadvantage to its competitors. The boat builders filed a protective
motion for judgment as a matter of law on Brunswick's counterclaim in the event the
court were to overturn the jury verdict. The district court granted Brunswick's motion
on Count 1 of its counterclaim, concluding as a matter of law that the boat builders had
committed a per se violation of Section 1 of the Sherman Act. It awarded Brunswick
only nominal damages of $1, however, because of a failure of proof. The boat builders
filed a renewed motion for judgment as a matter of law, or alternatively for
reconsideration of the order granting Brunswick judgment on its antitrust counterclaim.
This motion was denied, and neither side has appealed the final resolution of
Brunswick's counterclaim.

     Brunswick also filed a renewed motion for judgment as a matter of law and for
a new trial on the boat builders' claims. In support of its motion for judgment,


      7
     December 7, 1991 was four years before the day on which this action was filed,
December 7, 1995.

                                          -11-
Brunswick attacked both the jury's finding of liability and its calculation of damages.
It contended that Dr. Hall's testimony should have been limited by the court because
his opinion had no basis in the economic reality of the stern drive engine market.
Brunswick further claimed that his model was flawed because it failed to account for
market share gains that resulted from lawful competitive activity and from market
events unrelated to its conduct. Brunswick argued that the jury adopted all aspects of
Dr. Hall's presentation and theory and thus awarded damages for losses due to factors
other than any anticompetitive conduct. Brunswick also argued that its market share
discount programs were not anticompetitive because they were above cost and were
not unlawfully exclusionary. Finally, Brunswick contended that the boat builders had
not presented sufficient evidence to sustain the jury's verdict on any of their claims and
that the Clayton Act claims were barred by the statutory limitations period.
Brunswick's motion for a new trial raised many of the same issues. It argued that the
jury verdict went against the weight of the evidence, that the damages awarded were
grossly excessive, that Dr. Hall's testimony was unfairly prejudicial, and that the
plaintiffs were awarded damages for conduct that was not anticompetitive. The district
court denied both motions.

       The boat builders filed a motion for equitable relief seeking orders to divest
Brunswick of Bayliner and Sea Ray,8 to proscribe Brunswick's use of market share
discount programs, and to prohibit it from further violation of the antitrust laws. The
district court also denied this motion. It ruled that the boat builders' request for


      8
        In denying equitable relief to the boat builders, the district court indicated that
they had asked for an "order that Brunswick divest itself within twelve months of its
US Marine [Bayliner] and Sea Ray boat manufacturing divisions . . . ." Order of Oct.
16, 1998 at 7. The boat builders apparently had not specifically requested divestiture
of Baja, which was being operated as part of the Sea Ray division. The court held that
"[i]n light of the record as a whole, the balance of equities precludes any award of
divestiture, including the divestiture by Brunswick of Baja . . . ." 

(emphasis
in original).

                                           -12-
divestiture was barred by laches in light of the jury's finding of no damages prior to
December 7, 1991 and that the balance of equities precluded any order to divest. It
also refused to enjoin market share discount programs, again citing laches and no
showing of irreparable harm. Finally, the court rejected the boat builders' request to
enjoin Brunswick from violating assorted antitrust laws on the grounds that such an
injunction would be imprecise, impossible to monitor and enforce, and so broad that
it potentially could preclude Brunswick from engaging in legitimate business activity.

       Following its rulings on the various post trial motions, the district court trebled
the damages found by the jury and awarded the boat builders $7,783,223.94 in attorney
fees and $1,267,424.18 in costs. See Concord Boat Corp. v. Brunswick Corp., 34 F.
Supp.2d 1125, 1134 (E.D. Ark. 1998). The final award totaled $142,165,931.12.

                                           II.

       Brunswick argues on appeal that it is entitled to judgment as a matter of law
because the boat builders' Clayton Act claims were barred by the statute's four year
limitations period and because the evidence was insufficient as a matter of law to
enable a reasonable jury to find that Brunswick's discount programs and acquisitions
restrained trade and monopolized the market in violation of the Sherman Act.
Brunswick contends that above cost discounting and vertical integrations constitute
competitive business behavior that should be encouraged because of the resulting
benefits for consumers and purchasers.9 It also claims that Dr. Hall's testimony should


      9
        The National Association of Manufacturers (NAM) has submitted an amicus
curiae brief supporting Brunswick's position that this type of discount program results
in lower prices for consumers. NAM's 14,000 member companies and subsidiaries,
which include 10,000 small manufacturers, employ approximately 85% of all
manufacturing workers in the United States and produce over 80% of the nation's
manufactured goods. See Amicus Curiae Br. for the National Association of
Manufacturers at 1. It states that this case has significant implications for potential

                                          -13-
not have been admitted because his approach did not provide a reasonable basis for
either liability or damages. His opinion that competitive conduct would have resulted
in a "50-50 lockstep duopoly" in the market was without factual support, wholly
speculative, and methodologically unsound according to Brunswick. See Def.'s Br. at
61. In support of its motion for a new trial Brunswick says that the boat builders'
Clayton Act claims were not timely filed, that it is not possible to know what part of
the antitrust damages awarded by the jury resulted from the Clayton violations it found,
and that Dr. Hall's expert opinion should not have been admitted.

       The boat builders contend that their evidence was sufficient to permit a
reasonable jury to find that Brunswick had used its discounts and acquisitions to
restrain trade and monopolize the market in violation of the Sherman Act. They claim
that they proved that Brunswick's monopolization of the engine market resulted in
higher engine prices which forced its primary rivals, Volvo and OMC, to merge in 1993
and resulted in Yamaha's departure from the market in 1994. They also argue that the
statute of limitations does not bar their Clayton Act claims because Brunswick's
purchases of Bayliner and Sea Ray were part of a continuing violation and because
their damages were only speculative during the limitations period. They also contend
that there was no need for the jury to be asked to tie any damages to a particular type
of antitrust violation and that the damage award can be sustained if any of their antitrust
claims are upheld. Finally, the boat builders cross appeal from the denial of their
motion for equitable relief, but they do not appeal the jury's rejection of their fraudulent
concealment claim.

      We review de novo the denial of a motion for judgment as a matter of law, using
the same standards as the district court. See Amerinet, Inc. v. Xerox Corp., 

, 1505 (8th Cir. 1992), cert. denied, 

(1993). Judgment as a matter


antitrust liability for its members should they choose to offer above cost, non exclusive
discounts to consumers. See 

                                           -14-
of law is appropriate "[i]f during a trial by jury a party has been fully heard on an issue
and there is no legally sufficient evidentiary basis for a reasonable jury to find for that
party . . . ." Fed. R. Civ. P. 50(a)(1). We "must assume as proven all facts that the
nonmoving party's evidence tended to show, give her the benefit of all reasonable
inferences, and assume that all conflicts in the evidence were resolved in her favor."
Hathaway v. Runyon, 

, 1220 (8th Cir. 1997). Applying this standard,
the motion "must be granted when the non-movant's case rests solely upon speculation
and conjecture lacking in probative evidentiary support." Johnson v. Niagra Mach. &
Tool Works, 

, 1225 (8th Cir. 1981) (internal quotations and citation
omitted). This is because the non-moving party, while entitled to all supportable
inferences, is not given “the benefit of unreasonable inferences or those at war with the
undisputed facts.” Sip-Top, Inc. v. Ekco Group, Inc., 

, 830 (8th Cir. 1996)
(citations and internal quotations omitted). A motion for judgment as a matter of law
should be granted if, when considering the evidence in this manner, "'without weighing
the credibility of the witnesses, there can be but one reasonable conclusion as to the
verdict.'" McGreevy v. Daktronics, Inc., 

, 840 (8th Cir. 1998) (citing
Sip-Top, 

); see also Ryther v. KARE 11, 

, 844 (8th
Cir.) (en banc), cert. denied, 

(1997). We review the denial of a motion
for a new trial under an abuse of discretion standard. See Wood v. Minnesota Mining
& Mfg. Co., 

, 311 (8th Cir. 1997).

                                           III.

                                            A.

       The boat builders claim that Brunswick's purchases of Bayliner and Sea Ray in
December 1986 and its continuing holding of them served “substantially to lessen
competition, or to tend to create a monopoly" in violation of Section 7 of the Clayton
Act. 15 U.S.C. § 18 (1994). Brunswick argues that these claims are barred by the
statute's limitations period and that its acquisitions were not anticompetitive as a matter

                                           -15-
of law. Section 7 of the Clayton Act protects against more than one type of
anticompetitive conduct, but all cases are governed by the limitations period in Section
4B that requires that an action be commenced "within four years after the cause of
action accrued." 15 U.S.C. § 15b (1994).

       Section 7 "is primarily aimed at arresting, at their incipiency, acquisitions and
mergers that substantially lessen competition or tend to create a monopoly."
Midwestern Mach., Inc. v. Northwest Airlines, Inc., 

, 442 (8th Cir. 1999)
(citing United States v. E.I. du Pont de Nemours & Co., 

, 589 (1957)).
An antitrust cause of action generally "accrues and the statute begins to run when a
defendant commits an act that injures a plaintiff's business." Zenith Radio Corp. v.
Hazeltine Research, Inc., 

, 338 (1971). A Section 7 action challenging
the initial acquisition of another company’s stocks or assets accrues at the time of the
merger or acquisition. See Midwestern Mach., 

. Brunswick
acquired Bayliner and Sea Ray in December 1986, and the cause of action for these
widely publicized transactions accrued at that time. The statute's four year limitations
period for the initial acquisitions therefore expired in 1990. Since this action was not
filed until 1995, Section 7 claims based on Brunswick's initial acquisitions are time
barred.

       Clayton Act claims are not limited to challenging the initial acquisition of stocks
or assets, however, since "'holding as well as obtaining assets' is potentially violative
of section 7." Midwestern Mach., 

(quoting United States v. ITT
Continental Baking Co., 

, 240 (1975)). A Clayton Act violation may
occur "'at or any time after the acquisition, depending upon the circumstances of the
particular case.'" 

du Pont de Nemours & 

).
"[W]hile the primary thrust of § 7 is to prohibit and thus to forestall anti-competitive
and monopolistic acquisitions," completed acquisitions and "post-acquisition conduct
may amount to a violation of § 7." 

and citations omitted). The
rationale for extending Section 7 liability beyond the acquisition itself is that "'as a

                                          -16-
practical matter it often may be difficult to foresee and evaluate the real impact and
effect of an acquisition until the transaction has been completed and the aggregate
combine is operating.'" 

(quoting Carlson Cos. v. Sperry & Hutchinson
Co., 

, 962 (8th Cir. 1974)).

       Section 7 actions challenging the holding or use of assets remain subject to the
four year limitations period, and the normal antitrust accrual rule applies. The
limitations period thus starts to run at "the point the act first causes injury." Klehr v.
A.O. Smith Corp., 

, 190-91 (1997) (citing Zenith Radio 

); E.I. du Pont de Nemours & 

(action accrues when
"threat of the prohibited effects is evident"); ITT Continental Baking 

(antitrust action accrues later when there is "no realistic threat of restraint of
commerce or creation of a monopoly" at the initial acquisition); Midwestern Mach.,

n.3 (sweep of Section 7 claims restricted by the statute of
limitations, laches, and problems of proof and causation). The statute can be tolled
under certain circumstances, such as where a defendant has engaged in fraudulent
concealment, see Kansas City, Mo. v. Federal Pacific Elec. Co., 

(8th
Cir.), cert. denied, 

(1962), or where a plaintiff's damages are only
speculative during the limitations period, see Zenith Radio 

.

       The record indicates that the boat builders did not prove that the statute of
limitations was tolled or that the limitations period was extended, unlike the plaintiffs
in Midwestern Machinery, E.I. du Pont de Nemours & Company, and ITT Continental
Baking Company. The limitations period in this case cannot be extended on the basis
of the holding and use of the acquisitions because the evidence at trial showed that the
boat builders' injury accrued in 1986. Brunswick's purchases of Bayliner and Sea Ray
were public information at the time of acquisition and were well known throughout the
boat manufacturing industry. See Tr. at 1929. At trial the boat builders provided the
jury with damage calculations for each year beginning in 1986, and these calculations
were based solely on Brunswick's market share. This showed that the damages

                                          -17-
resulting from any injury based on Brunswick's holding and use of Bayliner and Sea
Ray could have been quantified as early as 1986. Brunswick's market share was the
only independent variable in the boat builders' damage formula, and it was easily
calculable at that time. Moreover, in 1990 the boat builders' buying cooperative,
Independent Boat Builders, Incorporated (IBBI), advised its members to declare
Brunswick’s practices “in violation of the Sherman Anti-Trust Act.” Def.'s Ex. 318.
This advice would have alerted the boat builders to investigate whatever violations of
the antitrust laws might have been committed by Brunswick's holding and use of the
companies it had acquired.

       Thus, by 1990 at the very latest the boat builders were aware of their alleged
injuries and of their potential Section 7 claims with regard to Brunswick's holding and
use of Bayliner and Sea Ray. As the Seventh Circuit has noted,

      the statute of limitations is not tolled simply in order to wait and see just how
      well the defendant does in the market from which he excluded the plaintiff.
      Otherwise it would be tolled indefinitely in a very large class of antitrust suits.

Brunswick Corp. v. Riegel Textile Corp., 

, 271 (7th Cir. 1984), cert.
denied, 

(1985). If the rule were different, a merger or acquisition could
be subject to continual challenge under Section 7. See Midwestern Mach., 

n.3.

       The boat builders also claim that Brunswick's holding of Bayliner and Sea Ray
resulted in a continuing violation, but they cite no appellate decision applying that
concept in a Section 7 case. Continuing violations typically arise in the context of
Sherman Act or RICO10 claims where multiple defendants are alleged to be part of an
ongoing conspiracy. See, e.g., Zenith Radio 

(Sherman Act


      10
       See Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.
§§ 1961-68 (1994).

                                         -18-
conspiracy); Hanover Shoe, Inc. v. United Shoe Mach. Corp., 

, 502 n.15
(1968) (Sherman Act refusal to deal); Grand Rapids Plastics, Inc. v. Lakian, 

, 406 (6th Cir. 1999), petition for cert. filed, 

(U.S. Nov. 10,
1999) (No. 99-1232) (Robinson-Patman price discrimination scheme); Hugh Chalmers
Motors, Inc. v. Toyota Motor Sales U.S.A., Inc., 

, 763 (8th Cir. 1999),
petition for cert. filed, 

(U.S. Dec. 1, 1999) (No. 99-934) (antitrust
conspiracy involving product tying, price discrimination, restraint of trade, and
monopolization). In such a situation, the statute of limitations runs from the last "overt
act." Grand Rapids Plastics, 

(internal quotations and citation
omitted). Continuing violations have not been found outside the RICO or Sherman Act
conspiracy context, however, because acts that "simply reflect or implement a prior
refusal to deal or acts that are merely unabated inertial consequences (of a single act)
do not restart the statute of limitations." DXS, Inc. v. Siemens Med. Sys., Inc., 

, 467-68 (6th Cir. 1996) (citations and internal quotations omitted).

       Even if a continuing violation analysis were applicable to the Section 7 claims
here, the boat builders have not shown any overt act that would restart the limitations
period. The holding or use of assets is by its nature an "unabated inertial
consequence[]" of the initial acquisition. DXS, 

(internal
quotations and citations omitted). Where a company is merely holding or using assets
in the same manner as at the time of acquisition, there is no "separate new overt act"
to restart the limitations period as is found, for example, in each new sale by a Sherman
Act price fixing defendant. Cf. 

. Rather than engaging in
another sale or overt act, this type of defendant simply continues to hold or use an
asset. If this were enough to make out a continuing violation, there would in effect be
no statute of limitations since a Section 7 challenge to the holding or use of assets could
be brought at any time. The policy reasons for the four year statutory limitations period
for acquisition claims have been discussed by the Ninth Circuit:




                                           -19-
       [t]he four-year limitation of Clayton Act § 4B for private antitrust actions for
       damages is long enough to enable potential plaintiffs to observe the actual effects
       of a possible antitrust violation and to calculate its potential effects. The abuses
       which would occur if plaintiffs were permitted to search the history of other
       firms and challenge at their pleasure any possible violations, no matter how old,
       seem apparent.

International Tel. & Tel. Corp. v. General Tel. & Elecs. Corp., 

, 929 (9th
Cir. 1975), overruled on other grounds, California v. American Stores Co., 

(1990).

      The boat builders rely on a civil RICO case and two district court cases in
arguing that a continuing violation can be found in the Section 7 context. See 

; see also Teletronics Proprietary, Ltd. v. Medtronic, Inc., 

, 842-44 (S.D.N.Y. 1988); Julius Nasso Concrete Corp. v. DIC Concrete Corp.,

, 1022-25 (S.D.N.Y. 1979). In Klehr the Supreme Court considered
the four year antitrust limitations period in deciding when a RICO cause of action
accrues and the limitations period starts to run:

       Antitrust law provides that, in the case of a "continuing violation," say, a price
       fixing conspiracy that brings about a series of unlawfully high priced sales over
       a period of years, "each overt act that is part of the violation and that injures the
       plaintiff," e.g., each sale to the plaintiff, "starts the statutory period running
       again, regardless of the plaintiff's knowledge of the alleged illegality at much
       earlier times."

(internal quotations and citations omitted). The Court cited only Sherman
Act cases, however, and did not discuss Section 7 Clayton claims. Although the boat
builders contend that "[n]umerous courts have applied Zenith to Clayton § 7 actions
and held that the cause of action accrues each time an injury is incurred," Pls.' Br. at 58,
neither of the cited district court cases discussed continuing injuries. Those plaintiffs
instead alleged that merged companies began holding or using assets differently at
some time after the acquisitions and that this subsequent change affected the running


                                           -20-
of the limitations period. Here, however, the boat builders never pointed to evidence
showing that Brunswick was holding or using Bayliner and Sea Ray differently than
when it originally acquired them, and the continuing violation exception to the
limitations period does not apply to save their Section 7 claims from being time barred.

       Giving the boat builders the benefit of all reasonable inferences from the
evidence, their alleged Section 7 injuries accrued at the latest in 1990 and their
damages were then calculable. The four year statute of limitations started to run at that
time and expired no later than 1994. Their action was not filed until December 7,
1995, and they have not shown that the statute was tolled or that the continuing
violation exception applies. Their Section 7 claims are therefore time barred. Since
the statute of limitations had run on the Section 7 claims, they should not have been
submitted to the jury and Brunswick is entitled to judgment as a matter of law with
respect to them.

                                           B.

       The parties disagree about what impact dismissal of the Clayton Act claims
should have on the case on appeal since the verdict form did not ask the jury to allocate
damages to each type of antitrust claim or to consider what damages were caused by
each type of violation.

        Brunswick believes it is entitled to a new trial on any remaining claims because
the jury was not asked to specify the damages attributable to the individual theories of
liability. It cites several Supreme Court and appellate decisions in support. In
Spectrum Sports, Inc. v. McQuillan, 

, 459-60 (1993), the Supreme Court
overturned a Section 2 antitrust judgment because there was no way to know whether
the jury had relied on an erroneously submitted claim in setting damages. Similarly in
Sunkist Growers, Inc. v. Winckler & Smith Citrus Prods. Co., 

, 29-30
(1962), the Court set aside an antitrust judgment where one theory of liability should

                                          -21-
not have been submitted to the jury. Many other cases have reached similar results if
a jury might have relied on erroneously submitted claims. See, e.g., Robertson v.
Norton Co., 

, 908 (8th Cir. 1998); Dakota Indus., Inc., v. Ever Best Ltd.,

, 912 (8th Cir. 1994); Dudley v. Dittmer, 

, 673 (8th Cir.
1986); Northeastern Tel. Co. v. American Tel. & Tel. Co., 

, 94-95 (2d Cir.
1981), cert. denied, 

(1982); see also Barber v. Whirlpool Corp., 

, 1278 (4th Cir. 1994).

       The boat builders argue that the entire damage award may be upheld even when
based on Brunswick's Sherman Act liability alone, but they provide no persuasive
authority for their theory. They cite a civil rights case dealing only with alternate
grounds for summary judgment, see Duffy v. Wolle, 

, 1035 n.5 (8th Cir.
1997), cert. denied, 

(1998), and a distinguishable antitrust case, see
General Indus. Corp. v. Hartz Mountain Corp., 

, 800-01 (8th Cir. 1987).
Hartz upheld a judgment on Section 2 grounds despite the erroneous submission of a
Section 1 claim to the jury, but there the appellant had not challenged the form of
special verdict or objected to it at trial. See 

. Here, Brunswick
alerted the district court at trial to the problems with the general verdict form and
specifically objected to it on the grounds that it did not "account for the disaggregation
principles that need to be addressed by the jury in order that the Court and, if
necessary, the Court of Appeals can determine which conduct the jury thought was
lawful versus which conduct was unlawful . . . ." Tr. at 6316-26. Moreover, the claims
in Hartz were all brought under the Sherman Act; Section 7 of the Clayton Act was not
implicated.

       This case is like Spectrum Sports and Sunkist Growers, in that the jury
considered an erroneously submitted claim in determining its verdict on damages. It
found Brunswick liable for violating Section 7 of the Clayton Act and Sections 1 and
2 of the Sherman Act, but it is not possible to know what damages it found to have
been caused by the acquisitions upon which the Section 7 claims were based. The

                                          -22-
verdict form did not require the jury to consider what damages resulted from each type
of violation. See 

. The jury could have assigned millions of
dollars in damages to a claim that should not have been submitted in the first instance
because of the statute of limitations. Had the verdict form included a damage question
for each of the three statutory claims, it would have been possible to deduct from the
total damage figure the amount awarded for the Section 7 claim. See Mueller v.
Hubbard Milling Co., 

, 1038 n.13 (8th Cir.), cert. denied, 

(1978) (special verdicts especially suited to multiple theories of liability).

       Because there is no way to know what damages the jury assigned to the Section
7 claims based on the verdict form that was used, Brunswick would be entitled at the
very least to a new damages trial on the boat builders' Sherman Act claims.

                                          IV.

       Brunswick argues that another trial on the boat builders' Sherman Act claims is
not required because it is entitled to judgment as a matter of law on those claims and
the district court erred in not granting its motion for judgment. Brunswick contends
that its discount programs and acquisitions represented pro competitive business
conduct that did not unreasonably restrain trade or monopolize the market. The boat
builders therefore did not suffer any antitrust injury, and they have not shown causation
or damages. The boat builders respond that Brunswick's discount programs amounted
to de facto exclusive dealing and its acquisitions enabled it to foreclose a substantial
share of the stern drive engine market and to charge supracompetitive high prices for
its engines.

       The boat builders' antitrust allegations claim damages based on the combined
effect of Brunswick's market behavior over some ten years. Under federal law treble
damages are available to "[a]ny person who shall be injured in his business or property
by reason of anything forbidden in the antitrust laws . . . ." 15 U.S.C. § 15 (1994). In

                                          -23-
order to prevail plaintiffs must prove for each claim "'an antitrust violation, the fact of
damage or injury, a causal relationship between the violation and the injury, and the
amount of damages.'" Amerinet 

(quoting Rosebrough
Monument Co. v. Memorial Park Cemetery Ass'n, 

, 1146 (8th Cir.
1981), cert. denied, 

(1982)); see also Green v. Associated Milk
Producers, Inc., 

, 1157 (8th Cir. 1982). Antitrust injury, causation, and
damages all are necessary parts of the proof because "Congress did not intend the
antitrust laws to provide a remedy in damages for all injuries that might conceivably be
traced to an antitrust violation." Hawaii v. Standard Oil Co., 

, 262-63
n.14 (1972).

       Because the boat builders presented the same evidence for their Section 1 and
2 claims, relying primarily on Dr. Hall to present the key evidence to support their
theories of liability and causation, we examine Dr. Hall's presentation first and then turn
to the separate antitrust claims.

                                            A.

      Brunswick argues that Dr. Hall's expert opinion should have been excluded
because it was contrary to undisputed record evidence and because it did not separate
lawful from unlawful conduct. The district court recognized that

      the task Dr. Hall faced in analyzing this case was an enormous one.
      Notwithstanding the complex nature of the conduct at issue, Dr. Hall was
      required to construct a hypothetical market, a "but for" market, free of the
      restraints and conduct alleged to be anticompetitive. The difficulty of such a
      task has long been recognized by courts in antitrust cases . . . .

Concord Boat Corp. v. Brunswick Corp., 

, 927 (E.D. Ark. 1998).
Despite the inherent difficulty of the task, counsel for the boat builders assured the
district court before trial that Dr. Hall's model would reflect the reality of the market


                                           -24-
and would segregate any lawful acts and unrelated market events that might have
contributed to Brunswick's market share from any anticompetitive conduct in order to
enable the jury to assign damages only for illegal actions taken by Brunswick.

       Counsel's assurances did not eliminate the need for a thorough analysis of the
expert's economic model and his proffered opinion. Under Daubert the district court
is to make a "preliminary assessment of whether the reasoning or methodology
underlying the testimony is scientifically valid and of whether that reasoning or
methodology properly can be applied to the facts in issue." 

-
93. Among the factors to consider is whether the "'expert testimony proffered in the
case is sufficiently tied to the facts of the case that it will aid the jury in resolving a
factual dispute.'" 

(quoting United States v. Downing, 

, 1242
(3d Cir. 1985)). The Court referred to this requirement as "fit," meaning that the expert
testimony must not only be based on reliable science but must also "fit" the particular
facts of the case. See 

years the Supreme Court has put renewed emphasis on the importance
of the "fit" of an expert's opinion to the data or facts in the case:

      [C]onclusions and methodology are not entirely distinct from one another. . . .
      [N]othing in either Daubert or the Federal Rules of Evidence requires a district
      court to admit opinion evidence that is connected to existing data only by the
      ipse dixit of the expert. A court may conclude that there is simply too great an
      analytic gap between the data and the opinion proffered.

General Elec. Co. v. Joiner, 

, 146 (1997); see also Jaurequi v. Carter Mfg.
Co., 

, 1082 n.3 (8th Cir. 1999). A court must focus on the
"reasonableness of using such an approach, along with [the expert's] particular method
of analyzing the data thereby obtained, to draw a conclusion regarding the particular
matter to which the expert testimony was directly relevant." Kumho Tire Co. v.
Carmichael, 

, 154 (1999) (emphasis in original).


                                           -25-
       The district court commented that because Brunswick had not challenged the
Cournot model as a scientific theory, its "criticisms are reduced to complaints about
how Dr. Hall applied the Cournot model to the facts of this case." Concord Boat

. If a party believes that an expert opinion has not
considered all of the relevant facts, an objection to its admission is appropriate. See
Kumho Tire 

; 

. Even a theory that might
meet certain Daubert factors, such as peer review and publication, testing, known or
potential error rate, and general acceptance,11 should not be admitted if it does not
apply to the specific facts of the case. See Kumho Tire 

; 

.

        Not all relevant circumstances were incorporated into the expert's method of
analysis related to antitrust liability. Dr. Hall's opinion that Brunswick's discount
programs imposed a tax on boat builders who chose to purchase engines from other
manufacturers is not supported by the evidence that some boat builders chose to
purchase 100% of their engines from Brunswick when they only needed to purchase
80% to qualify for the maximum discount.12 If Brunswick's market share had enabled
it to charge supracompetitive high prices for its engines, presumably none of the boat
builders would have chosen to purchase more than the minimum percentage required
to receive the discount. There was other evidence that the boat builders were not
unable to forgo Brunswick's discounts. For example, the boat builders wielded
sufficient power over Brunswick to force it to scuttle its 1994 "Industry Growth
Program," which would have raised the market share requirement to 95%, and their

      11
        It is not clear how often the Cournot model has been employed in antitrust
cases; a Westlaw search on February 3, 2000 did not find any other federal antitrust
case discussing its application.
      12
         The owner of Mariah Boats, for example, which was found by the jury to have
suffered $16 million of the damages awarded to the boat builders, testified that when
Brunswick lowered its market share discount level to 70% in 1994, "it was of no
significance [to Mariah] because we were 90-plus anyway." Tr. at 2129.

                                         -26-
reaction led to a reduction in market share levels for the 1995 to 1997 model year
program.

       Dr. Hall used the Cournot model to construct a hypothetical market which was
not grounded in the economic reality of the stern drive engine market, for it ignored
inconvenient evidence. The basis for his model was a theoretical situation in which
some other manufacturer's engine would be viewed as equal in quality to Brunswick's.
See Tr. at 1351. In this hypothetical market, Dr. Hall assessed an overcharge on each
engine sold at any point where Brunswick possessed over the 50% market share he
deemed permissible. The overcharge was described as the difference between the
actual price paid by the boat builders and the price that would theoretically have existed
in a more competitive market. This approach was not affected by the actual price at
which Brunswick's engines were sold since the overcharge percentage was applied any
time its market share surpassed 50%. As Dr. Hall testified but his opinion did not
reflect, Brunswick had achieved a 75% share in the mid 1980s, before it started the
market share discounts and before it acquired Bayliner and Sea Ray. See Tr. at 1392.

       The model also failed to account for market events that both sides agreed were
not related to any anticompetitive conduct, such as the recall of OMC's Cobra engine
and the problems associated with the Volvo/OMC merger. Dr. Hall admitted on cross
examination that such facts could have been incorporated into his model but that he had
not done so:

      I did not numerically attribute--in other words, it wasn't some specific
      adjustment that you'll see in my computer spread sheet saying, "Here's what I did
      because of OMC." And that's because of the framework that I was working in.
      Remember, I was stepping back and saying, "What's a reasonable benchmark for
      what a freer market would have been?" . . . . Within that framework, there isn't
      a slot . . . [to get] down into the year by year details.
      . . . What I want to do is stand back and say what averaged over the years, with,
      of course, ups and downs.


                                          -27-
Tr. at 1417-18. Dr. Hall testified about OMC's recall of its Cobra engine and admitted
that the "decline in OMC's market share and the corresponding increase during this
time period of Brunswick's market share is very much related to the switch-over in
engines previously supplied by OMC . . . ." Tr. at 1249. The OMC/Volvo joint
venture alone increased Brunswick's market share by as much as 10%. See Def.'s Ex.
1207 (letter dated May 21, 1993 from David Ball to IBBI members: Brunswick "picked
up over 10 unearned market share points this past year due to the chaos created by the
Volvo/OMC joint venture announcement"); Tr. at 4954 (testimony of David Ball,
President of IBBI). There was also evidence that the boat builders did not hesitate to
switch to OMC and Volvo when they offered superior discounts. Cf. SMS Sys.
Maintenance Servs., Inc. v. Digital Equip. Corp., 

, 19-20 (1st Cir. 1999),
petition for cert. filed, 

(U.S. Dec. 13, 1999) (No. 99-995) (actual
behavior of customers more important than "self-serving testimony" of plaintiffs).

       Dr. Hall's expert opinion should not have been admitted because it did not
incorporate all aspects of the economic reality of the stern drive engine market and
because it did not separate lawful from unlawful conduct. Because of the deficiencies
in the foundation of the opinion, the expert's resulting conclusions were "mere
speculation." Virgin Atlantic Airways Ltd. v. British Airways PLC, 

,
580 (S.D.N.Y. 1999) (summary judgment appropriate on Section 1 and 2 claims
because "an expert's opinion is not a substitute for a plaintiff's obligation to provide
evidence of facts that support the applicability of the expert's opinion to the case").
Expert testimony that is speculative is not competent proof and contributes "nothing to
a 'legally sufficient evidentiary basis.'" Weisgram v. Marley Co., ---U.S.---, 

, 1015, 1020 (2000) (citing Brooke Group Ltd. v. Brown & Williamson Tobacco
Corp., 

, 242 (1993)). "Expert testimony is useful as a guide to interpreting
market facts, but it is not a substitute for them." Brooke Group 

;
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

, 594 n.19 (1986)
("[E]xpert opinion evidence . . . has little probative value in comparison with the
economic factors . . . .").

                                          -28-
       An expert opinion cannot sustain a jury's verdict when it "is not supported by
sufficient facts to validate it in the eyes of the law, or when indisputable record facts
contradict or otherwise render the opinion unreasonable . . . ." Brooke Group 

; see also Wright v. Willamette Indus., Inc., 

, 1108 (8th Cir.
1996) (motion for judgment should have been granted because the expert opinion on
causation was speculative). An error in admission of evidence is reversible if the ruling
affected a substantial right of a party. See Fed. R. Ev. 103(a); see also White v.
Honeywell, Inc., 

, 1275 (8th Cir. 1998); cf. Fed. R. Civ. P. 61. Here Dr.
Hall's expert opinion was the basis of the boat builders' damage case, and the jury
clearly relied on his opinion in reaching its verdict because the damages it awarded to
the individual boat builders were identical to the detailed figures Dr. Hall had
calculated. Compare Pls.' Ex. 2556, and Tr. at 2608-46, with Appendix to this opinion.
It cannot be said that the verdict would have been the same without the expert
testimony, and its admission affected Brunswick's substantial rights. Brunswick's
motion for judgment should have therefore been granted. See Weisgram, 

.

                                           B.

       Brunswick argues that it is entitled to judgment as a matter of law on the boat
builders' Sherman Act claims because of the improper expert testimony and because
the other evidence presented by the boat builders was insufficient to demonstrate
antitrust injury, causation, and damage. The boat builders argue that there is more than
sufficient evidence in the trial record of Brunswick's anticompetitive conduct to support
the jury's finding of liability and damages. Antitrust plaintiffs must prove an antitrust
violation by a preponderance of the evidence. Cf. Herman & MacLean v. Huddleston,

, 390 (1983). After a thorough examination of the record, we find that the
boat builders failed to carry their burden of proof and Brunswick's motion for judgment
should have been granted for this reason.



                                          -29-
                                            1.

        Section 1 of the Sherman Antitrust Act prohibits “[e]very contract, combination
in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce.” 15
U.S.C. § 1 (1994). To prove a Section 1 violation, a plaintiff must show an agreement
in the form of a contract, combination, or conspiracy that imposes an unreasonable
restraint on trade. See Willman v. Heartland Hosp. E., 

, 610 (8th Cir.
1994), cert. denied, 

(1995). The unreasonableness of a restraint is
determined using either a per se standard or a standard that examines all of the
circumstances, the so-called rule of reason test. See Business Elecs. Corp. v. Sharp
Elecs. Corp., 

, 723 (1988). Under the per se standard, conduct that is
"manifestly anticompetitive" or "would always or almost always tend to restrict
competition," 

and citation omitted), is conclusively presumed
to restrain competition unreasonably "'without elaborate inquiry as to the precise harm
[it has] caused or the business excuse for [its] use.'" Rossi v. Standard Roofing, Inc.,

, 461 (3d Cir. 1998) (quoting Northern Pac. Ry. Co. v. United States, 

, 5 (1958)). Practices that have been held to be illegal per se include price fixing,
division of markets, group boycotts, and tying arrangements. See Arizona v. Maricopa
County Med. Soc., 

, 344 n.15 (1982); Double D Spotting Serv., Inc. v.
Supervalu, Inc., 

, 558 (8th Cir. 1998).

       Because the boat builders have not alleged that Brunswick engaged in activity
that would trigger a per se analysis, we apply the rule of reason analysis that focuses
on the "particular facts disclosed by the record," Eastman Kodak Co. v. Image
Technical Servs., Inc., 

, 467 (1992) (internal quotations and citation
omitted), and "weigh[] all of the circumstances . . . in deciding whether a restrictive
practice should be prohibited as imposing an unreasonable restraint on competition,"
Continental T.V., Inc. v. GTE Sylvania Inc., 

, 49 (1977).

      The boat builders' Section 1 theory is that Brunswick violated the law by means

                                           -30-
of its agreements or contracts. They argue that Brunswick's market share discount
programs created an unreasonable restraint of trade in violation of Section 1. See
Tampa Elec. Co. v. Nashville Coal Co., 

(1961); Standard Oil Co. v.
United States, 

(1911). It is undisputed that the market share discounts were
not exclusive contracts. At most the programs were de facto exclusive dealing
arrangements. Dr. Hall testified at trial that the discount programs were "voluntary
contracts. Nobody forced the boatmakers individually to accept these. They accepted
these contracts because they individually got a deal from it. They got their discounts
if they bought a lot of Brunswick engines." Tr. at 1173-74.

      Section 1 claims that allege only de facto exclusive dealing may be viable. See
Twin City Sportservice, Inc. v. Charles O. Finley & Co., 

, 1301-02 (9th
Cir.), cert. denied, 

(1982). The principle criteria used to evaluate the
reasonableness of a contractual arrangement include the extent to which competition
has been foreclosed in a substantial share of the relevant market, the duration of any
exclusive arrangement, and the height of entry barriers. See Tampa Elec. 

; Ryko Mfg. Co. v. Eden Servs., 

, 1233-35 (8th Cir. 1987), cert.
denied, 

(1988); see also Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 

, 45 (1984) (O'Connor, J., concurring) (reasonableness of the restraint on trade
in exclusive dealing cases depends upon whether a "significant fraction of buyers or
sellers are frozen out of a market").

       The boat builders failed to produce sufficient evidence to demonstrate that
Brunswick had foreclosed a substantial share of the stern drive engine market through
anticompetitive conduct. They also did not demonstrate that Brunswick's discount
program was in any way exclusive. The programs did not require the boat builders to
commit to Brunswick for any specified period of time. See Rowland Mach. Co. v.
Dresser Indus., Inc., 

, 395 (7th Cir. 1984) (contracts terminable in less
than a year presumptively lawful). They were free to walk away from the discounts at
any time, and they in fact switched to OMC engines at various points when that

                                         -31-
manufacturer offered superior discounts. One of the boat builders' witnesses testified,
for example, that he had switched from 80% Brunswick engines to 70-80% OMC
engines between 1988 and 1991 because OMC was offering better prices. See Tr. at
327. Another witness testified in his deposition that his boat building employer had
switched from 90% Brunswick to 80% OMC in 1993 because of OMC's favorable
pricing. See Def.'s Ex. 3466; cf. SMS Sys. Maintenance Servs., 

(rejecting Sherman Act Section 2 monopolization claim that defendant used generous
warranty contracts to lock in customers where the customers' actual behavior indicated
they were willing and able to switch to other suppliers).

       The boat builders also did not show that significant barriers to entry existed in
the stern drive engine market. If entry barriers to new firms are not significant, it may
be difficult for even a monopoly company to control prices through some type of
exclusive dealing arrangement because a new firm or firms easily can enter the market
to challenge it. Cf. Lomar Wholesale Grocery, Inc. v. Dieter’s Gourmet Foods, Inc.,

, 597-98 (8th Cir. 1987), cert. denied, 

(1988) (predatory
price claim rejected where there was no evidence of a "drastically declining price
structure" or of increasing concentration in the market (internal quotations and citation
omitted)). If there are significant entry barriers in the market, a potential competitor
would have difficulty entering in order to challenge a firm that is charging
supracompetitive high prices. See 

barrier to entry may exist when
large amounts of capital would be required. See Mississippi River Corp. v. F.T.C., 

, 1092 (8th Cir. 1972). The boat builders presented scant evidence that firms
have difficulty entering the stern drive engine manufacturing market. They suggest that
engine manufacturing is a capital intensive business, but Dr. Hall testified that various
companies are capable of assembling stern drive engines and of overcoming whatever
entry barriers might exist. He noted that Toyota had entered the market recently and
was on its way to competing with established manufacturers like Brunswick and
OMC/Volvo. Brunswick's discounts, because they were significantly above cost, left
ample room for new competitors such as Toyota to enter the engine manufacturing

                                          -32-
market and to lure customers away by offering superior discounts.

       In sum, the boat builders failed to establish Section 1 violations or a sufficient
causal connection between the alleged violations and their injuries. In order to make
out their case they had to produce evidence to show that Brunswick's market share
discount programs were an unreasonable contractual arrangement, based on the amount
of market foreclosure, exclusivity, and the erection of entry barriers. See Tampa Elec.

. The boat builders have not shown that a reasonable jury
could have found that Brunswick's programs, which were not exclusionary, caused
harm in the first instance, or that they were a "material cause" of any harm allegedly
suffered. National Ass'n of Review Appraisers & Mortgage Underwriters, Inc. v.
Appraisal Found., 

, 1135 (8th Cir. 1995), cert. denied, 

(1996) (summary judgment affirmed where defendant's allegedly anticompetitive
conduct was not a material cause of plaintiff's injury); see also 

(summary judgment affirmed where plaintiff failed to provide sufficient evidence
of antitrust injury, causation, and damages). The boat builders also failed to account
for "numerous intervening economic and market factors which . . . may have been the
actual cause of the plaintiffs' injuries," such as market share gains related to
competitors' mistakes. Greater Rockford Energy & Tech. Corp. v. Shell Oil Co., 

, 402 (7th Cir. 1993), cert. denied, 

(1994) (summary judgment
affirmed where "as a matter of law, plaintiffs have failed to show with a fair degree of
certainty that the antitrust violation was a material and substantial factor causing their
alleged injuries").

                                           2.

      Section 2 of the Sherman Act prohibits "monopoliz[ing], or attempt[ing] to
monopolize . . . any part of the trade or commerce among the several States . . . ." 15
U.S.C. § 2 (1994). To establish a Section 2 violation, plaintiffs must show that 1) the
defendant possessed monopoly power in the relevant market and 2) the defendant

                                          -33-
willfully acquired or maintained this monopoly power by anticompetitive conduct as
opposed to gaining that power as a result “of a superior product, business acumen, or
historical accident.” United States v. Grinnell Corp., 

, 570-71 (1966); see
also Morgan v. Ponder, 

, 1358 (8th Cir. 1989). Monopoly power is
defined as "the power to control prices or exclude competition." United States v. E.I.
du Pont de Nemours & Co., 

, 391 (1956).

       The boat builders argue that the discount programs and acquisitions were part
of a deliberate plan to exclude competitors from the stern drive engine market, and that
this exclusion enabled Brunswick to charge supracompetitive high prices for its
engines. As with the Section 1 claim, the boat builders point to evidence they say
shows that when Brunswick was threatened in the mid-1980s with OMC's new Cobra
engine and with increasing competition from other engine manufacturers, it offered
market share discounts and acquired Bayliner and Sea Ray in an effort to avoid
competition on the merits. They also allege that Brunswick attempted to erect and
maintain barriers to entry and to place its customers in "golden handcuffs," such that
boat builders and dealers had no choice but to purchase engines from it.

       The Supreme Court "has urged great caution and a skeptical eye when dealing
with unfair pricing claims." Bathke v. Casey's Gen. Stores, Inc., 

, 343 (8th
Cir. 1995). This is because "[l]ow prices benefit consumers regardless of how those
prices are set, and so long as they are above predatory levels, they do not threaten
competition. Hence, they cannot give rise to antitrust injury." Atlantic Richfield Co.
v. USA Petroleum Co., 

, 340 (1990) (rejecting Section 1 claim that a
maximum price fixing conspiracy caused antitrust injury when the prices were fixed
above a predatory level). In the absence of predatory prices,13 any losses caused by


      13
        Predatory pricing occurs when "'a single firm, having a dominant share of the
relevant market, cuts its prices in order to force competitors out of the market, or
perhaps to deter potential entrants from coming in.'" 

                                         -34-
pricing "cannot be said to stem from an anticompetitive aspect of the defendant's
conduct. It is in the interest of competition to permit dominant firms to engage in
vigorous competition, including price competition." 

(emphasis in original)
(internal quotations and citations omitted).

        Because cutting prices in order to increase business often is the very essence of
competition, which antitrust laws were designed to encourage, it "is beyond the
practical ability of a judicial tribunal to control [above cost discounting] without
courting intolerable risks of chilling legitimate price cutting." Brooke Group 

(citation omitted); see also Matsushita Elec. Indus. 

(emphasizing the pro-competitive effect of above cost discounting); 

; Barry Wright Corp. v. ITT Grinnell Corp., 

, 230-36 (1st Cir.
1983). To hold otherwise "would, in effect, render illegal any decision by a firm to cut
prices in order to increase market share. The antitrust laws require no such perverse
result . . . ." Cargill, Inc. v. Monfort of Colorado, Inc., 

, 116 (1986). If
a firm has discounted prices to a level that remains above the firm's average variable
cost, "the plaintiff must overcome a strong presumption of legality by showing other



(quoting Matsushita Elec. Indus. 

n.8. Determining whether price
cutting is predatory is not a simple inquiry:

      The difficulty, of course, is distinguishing highly competitive pricing from
      predatory pricing. A firm that cuts its prices or substantially reduces its profit
      margin is not necessarily engaging in predatory pricing. It may simply be
      responding to new competition, or to a downturn in market demand. Indeed,
      there is a real danger in mislabeling such practices as predatory, because
      consumers generally benefit from the low prices resulting from aggressive price
      competition.

-59 (citing Barry Wright Corp. v. ITT Grinnell Corp., 

, 231 (1st Cir. 1983)). There is no allegation that Brunswick engaged in
predatory pricing.

                                          -35-
factors indicating that the price charged is anticompetitive." 

.
This is because a firm's ability to offer above cost discounts is attributable to "the lower
cost structure of the alleged predator, and so represents competition on the merits . .
. ." Brooke Group 

.

       The decisions of the Supreme Court in Brooke Group and Matsushita illustrate
the general rule that above cost discounting is not anticompetitive. In Brooke Group
Ltd. the trial court had granted the defendants' motion for judgment overturning a $49.6
million verdict after a 115 day trial with nearly 3000 exhibits. See Liggett Group, Inc.
v. Brown & Williamson Tobacco Corp., 

, 348 (M.D.N.C. 1990), aff'd,

, 336 (4th Cir. 1992), aff'd sub nom., Brooke Group 

.
The plaintiff had failed to demonstrate that the defendants had caused injury to
competition. See Brooke Group 

. The Court pointed out that

       [a]lthough [the plaintiff's] theory of liability, as an abstract matter, is within the
       reach of the statute . . . . [The plaintiff] was not entitled to submit its case to the
       jury. . . . The record in this case demonstrates that the anticompetitive scheme
       [the plaintiff] alleged, when judged against the realities of the market, does not
       provide an adequate basis for a finding of liability.

(citations omitted). In Matsushita the Court remanded a predatory pricing
conspiracy case for entry of summary judgment for the defendants unless

       there is other evidence that is sufficiently unambiguous to permit a trier of fact
       to find that [the defendants] conspired to price predatorily for two decades
       despite the absence of any apparent motive to do so. The evidence must "ten[d]
       to exclude the possibility" that [the defendants] underpriced [the plaintiffs] to
       compete for business rather than to implement an economically senseless
       conspiracy.

. In both of these cases the Supreme Court put the
focus on the actual facts or realities of the marketplace rather than on hypotheticals.



                                            -36-
       No one argues in this case that Brunswick's discounts drove the engine price
below cost, and Brunswick contends that its discounts were therefore per se lawful.
The district court questioned Brunswick's per se legality theory, since the boat builders'
claim was that Brunswick's conduct as a whole, including the discounts and
acquisitions, enabled it to "charge[] anticompetitive high prices for its engines."
Concord Boat 

(emphasis in original). The court examined
several cases that had "rejected the argument that any pricing practice that leads to
above costs prices is per se lawful under the antitrust laws." 

original);
see LePage's Inc. v. 3M, No. Civ.A 97-3983, 

(E.D. Pa. Nov. 14,
1997) (bundling discounts on several product purchased together); SmithKline Corp.
v. Eli Lilly & Co., 

(3d Cir.), cert. denied, 

(1978) (pricing
scheme linking monopolistic product with another competitive product violated Section
2); Ortho Diagnostic Sys., Inc. v. Abbott Labs., Inc., 

, 467 (S.D.N.Y.
1996) (refusing to dismiss Section 2 bundling claims even though defendant not
accused of pricing below cost because "average variable cost is the controlling standard
in this Circuit [only for] single product cases"). The cases examined by the district
court all involve bundling or tying, however, which "cannot exist unless two separate
product markets have been linked." Jefferson Parish Hosp. Dist. No. 

.
Because only one product, stern drive engines, is at issue here and there are no
allegations of tying or bundling with another product, we do not find these cases
persuasive.

        The boat builders also have not shown that Brunswick's superior market share
was achieved or maintained "by means other than the competition on the merits . . . ."
Sterns Airport Equip. Co. v. FMC Corp., 

, 522 (5th Cir. 1999) (citing
Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 

(1985)); see also
Grinnell 

. A Section 2 defendant's proffered business
justification is the most important factor in determining whether its challenged conduct
is not competition on the merits. See Sterns Airport Equip. 

; see
also Grinnell 

. Section 2 claims cannot succeed if a

                                          -37-
defendant's dominant market share resulted from "a superior product, business acumen,
or historical accident.” Grinnell 

. On the other hand, if the
conduct "has no rational business purpose other than its adverse effects on competitors,
an inference that it is exclusionary is supported." Sterns Airport Equip. 

.

        Brunswick's business justification in this case is that it was trying to sell its
product. Cf. 

Cutting prices is the "very essence of competition."
Matsushita Elec. Indus. 

. Brunswick's competitors also cut prices
in order to attract additional business, confirming that such a practice was a normal
competitive tool within the stern drive manufacturing industry. See id.; see also Trace
X Chem., Inc. v. Canadian Indus., Ltd., 

, 266 (8th Cir. 1984), cert.
denied, 

(1985) ("Acts which are ordinary business practices typical of
those used in a competitive market do not constitute anti-competitive conduct violative
of Section 2."). In addition, Brunswick's discount programs were not exclusive dealing
contracts and its customers were not required either to purchase 100% from Brunswick
or to refrain from purchasing from competitors in order to receive the discount (and in
fact could purchase up to 40% of requirements from other sellers without forgoing the
discount). See Western Parcel Express v. United Parcel Serv. of Am., Inc., 

, 976 (9th Cir. 1999) (affirming summary judgment for defendant in Section 2
predatory pricing and exclusive dealing case where the challenged volume discount
contracts were terminable "for any reason with very little notice" and did not foreclose
customers from entering into contracts with the defendant's competitors). Boat builders
and dealers were free to walk away from Brunswick's discounts at any time, see 

evidence showed that they did so when Brunswick's competitors offered better
discounts, thus discrediting the boat builders' theory that the discounts created "golden
handcuffs" and entry barriers for other engine manufacturers.

                                           C.



                                          -38-
       Giving the boat builders the benefit to which they are entitled of all legitimate
inferences, they did not offer sufficient evidence to enable a jury to determine that
Brunswick's market share discount programs and acquisitions were anticompetitive.
Even considering the erroneously admitted testimony of Dr. Hall, the boat builders
failed to offer a "legally sufficient evidentiary basis for a reasonable jury to find for
[them]." Weisgram, 

(internal quotations and citation
omitted). They did not establish antitrust injury or causation with respect to either
Sherman Act claim. The boat builders had a "full and fair opportunity to present [their]
case," and the record evidence was insufficient to justify the verdict. 

Brunswick is therefore entitled to judgment as a matter of law on the Sherman Act
claims.

                                           V.

       After a careful review of the voluminous record in this case, we conclude that
the judgment for the boat builders cannot be upheld and that Brunswick is entitled to
entry of judgment in its favor. Since the boat builders did not file their case until more
than four years after the accrual of their cause of action under the Clayton Act and no
exception to the running of the limitations period applies, the Section 7 claims should
have been dismissed rather than submitted to the jury. We also conclude that the boat
builders did not make out submissible Sherman Act claims. We therefore reverse and
vacate the judgment in favor of the boat builders, including the award of fees and costs,
and remand for entry of judgment in favor of Brunswick.14




      14
        This resolution moots Brunswick's motion for a new trial, as well as the cross
appeal of the boat builders from the denial of their motion for equitable relief, and we
need not address these issues further.

                                          -39-
A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                          -40-
                                              APPENDIX

The relevant portion of the verdict form with the jury's answers follows:

PART I         Plaintiffs' Antitrust Claims

1.     Do you find from a preponderance of the evidence that Plaintiffs have proved a relevant
       product market?
       YES T NO

2.     If you answered "NO" to Question1 then go to PART II. If you answered "YES" to Question
       1, place an "X" next to the following engines that you find by a preponderance of the evidence
       to be in the relevant product market:
          T stern drive engines
               outboard engines
          T inboard engines
               jet engines

3.     Do you find from a preponderance of the evidence that Brunswick monopolized that market
       in violation of Section 2 of the Sherman Act?
       YES T NO

4.     Do you find from a preponderance of the evidence that Brunswick engaged in an
       unreasonable restraint of trade in that market in violation of Section 1 of the Sherman Act?
       YES T NO

5.     Do you find from a preponderance of the evidence Brunswick engaged in acquisitions which
       had the effect of substantially lessening competition in that market, or tending to create a
       monopoly in that market, in violation of Section 7 of the Clayton Act?
       YES T NO

6.     If you answered YES to either question 3, or question 4, or question 5 (or answered yes to
       more than one of those questions) what, if any, damages did the Plaintiffs suffer (or will
       suffer) as a result of Brunswick's antitrust violation or violations in that market? Use Chart
       1 to fill in the damages, if any, suffered (or to be suffered) by each of the Plaintiffs during each

                                                  -41-
       of the following time periods:

       a. From December 7, 1991 through the date of verdict; and
       b. After the date of verdict.

CHART 1


Plaintiff                       For Time             For Time Period    For Time Period
                                Period to            December 7, 1991   After the Date
                                December 7, 1991     Through the        of Verdict
                                                     Date of Verdict
Albemarle Boats, Inc.           $0                   $83,282            $0
Armada Manufacturing            $0                   $2,646,611         $0
Caravelle Boats, Inc.           $0                   $4,887,179         $0
Campion Marine, Inc.            $0                   $1,196,286         $0
Century Craft Industries        $0                   $39,168 Vanguard   $0
(Vanguard Industries)                                $19,348 Century
Concord Boat Corp.              $0                   $106,459           $0
F R P Industries                $0                   $468,163           $0
G.W. Invader                    $0                   $460,597           $0
Galaxie Boatworks               $0                   $395,362           $0
Harris Kayot                    $0                   $1,644,706         $0
KCS International               $0                   $3,389,006         $0

Malibu Boats                    $0                   $5,036,468         $0

Mariah Boats, Inc.              $0                   $16,626,171        $0
Mirage Boats, Inc.              $0                   $824,028           $0
Ohio Marine Dist. (Play Time)   $0                   $6,428             $0

Powerquest Boats, Inc.          $0                   $2,618,335         $0

Sea Arrow Marine, Inc.          $0                   $15,065            $0
Silverton Mar. Corp.            $0                   $1,566,672         $0



                                            -42-
 Plaintiff                       For Time                For Time Period       For Time Period
                                 Period to               December 7, 1991      After the Date
                                 December 7, 1991        Through the           of Verdict
                                                         Date of Verdict
 Thompson Boat Co.               $0                      $2,324,365            $0

 Weeres Industries               $0                      $18,062               $0


7.      Do you find by a preponderance of the evidence that one or more Plaintiffs are entitled to
        recover damages for the time period prior to December 7, 1991?
        YES       NO T

....

PART II        Brunswick's Section 1 Counterclaim

10.     Do you find by a preponderance of the evidence that any of the Plaintiffs engaged in an
        unreasonable restraint of trade in violation of Section 1 of the Sherman Act?
        YES       NO T




                                              -43-