In a Pennsylvania breach of contract case, the plaintiff’s damages expert was to testify as to lost profits. Opposing counsel filed a Daubert motion, claiming the expert’s pricing calculations (a key component to the lost profits analysis) could not be based on anything in the record.

In—for now: The court allowed the expert to testify, and it would be admissible at trial as “long as there is a basis for those assumptions in the record.” After the expert’s testimony but before the jury’s verdict was entered, the opposing side moved that the testimony be struck because the expert’s assumptions “had no factual basis in the trial evidence.” The court did not rule on the motion until after the trial. The jury found the defendant liable for the breach of contract and awarded $25 million in compensatory damages.

After entering the judgment, the court granted the motion excluding the expert’s testimony and asking for a new trial on damages only. The expert’s testimony was not based on the trial record. Specifically, without the expert’s testimony as to pricing calculation, the jury could not have reached the damages award it did reach, of $25 million. The plaintiff filed a motion for reconsideration, but it was denied.

The case is Paramount Fin. Commc’ns, Inc. v. Broadridge Inv’r Commc’n Sols., Inc., 2023 U.S. Dist. LEXIS 154020; 2023 WL 5635772, and a case analysis and full court opinion are on the BVLaw platform.