Nancy Fannon (Meyers, Harrison & Pia) is concerned that recent BVWire reports on causation and lost profits leave the impression that damages experts don’t have to consider causation. Failure to link your damages to the actions of the defendant and rule out all causes for the loss, she says, makes an expert vulnerable at deposition or on cross-examination and a likely candidate for exclusion at trial.
“I frequently find that the misconception among experts is that they do not need to address cause,” which, she feels, may contribute to a general lack of credibility with the court. “The question is,” she goes on to say, “how can you calculate the extent of damages flowing from the breach, if you don't consider the realm of things that could have caused the plaintiff's presumably declining results? Is the attorney going to tell you the economy is down, prices went up, his client's product is nearly obsolete, a new competitor went in down the street? I don't think so. That's our job to ferret it out.”