News Category: daubert


Trial court leans on peer review service for Daubert determination

When, in a Mississippi accounting malpractice case, the trial court used an outside "technical advisor" to determine the admissibility of the parties’ proposed expert testimony, the Daubert hearing assumed a whole other dimension. It was no longer simply a battle between the opposing experts, but an occasion for outside experts to judge the work of the parties’ experts. Read more >>

Missouri says yes to Daubert

Missouri's governor recently signed into law a bill in favor of adopting the Daubert standard applicable to the admissibility of expert testimony. The move by the governor apparently is the first in several major tort reform measures he hopes to accomplish during his term. Read more >>

Damages testimony undergoes Daubert treatment in class certification stage

Class actions have their own rules, including when it comes to expert testimony. An unresolved issue is whether damages expert testimony is subject to a Daubert inquiry at the class certification stage, before the court has approved the request to proceed as a class action. The U.S. Supreme Court has yet to give clear guidance, but defendants are increasingly proactive and move to exclude the testimony at the beginning of the litigation in an attempt to thwart class certification and knock the case out early. Read more >>

AICPA Tips for Testifying Experts

Appraisers working on litigated disputes face special challenges. Several workshops at the recent AICPA conference in Nashville provided insights and survival tips that benefit both the seasoned financial expert witness and the upstart. Read more >>

Flawed yardstick analysis sinks lost profits award

A drawn-out damages case in which a startup compression sportswear company sued the defendant "private label" manufacturer over an abandoned licensing deal promised to make the plaintiff rich but ultimately ended with nominal damages. Read more >>

Daubert tests reliability of testimony, not power of persuasion

The plaintiff, representing the debtor enterprises, sued executives of related family-run consumer lending and retail businesses that had filed for Chapter 11 bankruptcy over allegedly fraudulent transfers. Read more >>

Expert report proves best defense against Daubert offense

In litigation, attacks on expert opinions are par for the course, but a sound expert report can ward off a Daubert challenge and clear the way to admission at trial, as a recent fraud case illustrates. Read more >>

How else to look at the 'Gawker' case: It's about unjust enrichment

It's not your average lost profits or lost business opportunity case. Rather, Hogan's damages experts were successful in quantifying damages under the less-common unjust enrichment theory. Rather than focusing on the damages to Hogan, the plaintiff, stemming from Gawker's misconduct, the experts calculated the gain to Gawker, the defendant, from the misuse of Hogan's assets, that is, his brand and other intellectual property. Read more >>

Court admits expert's anti-'Georgia-Pacific' royalty calculation

There is no absolute requirement to develop a reasonable royalty based on the Georgia-Pacific framework. That's the takeaway from a Daubert ruling in which the court denied the defendant's motion to preclude the testimony of the opposing damages expert, who determined a reasonable royalty based on market data instead of the customary Georgia-Pacific factors. Read more >>

Wholesale exclusion of expert testimony contravenes Daubert, 2nd Circuit says

One error in an extensive economic analysis does not automatically call into question the entire expert opinion, the 2nd Circuit Court of Appeals recently said in the context of a securities fraud lawsuit involving the drug giant Pfizer. With this pronouncement the appeals court resuscitated a class action that had died after the district court excluded the plaintiffs' loss causation and damages expert under Daubert based on errors in the expert's event study. Deprived of the testimony, the plaintiffs were unable to prove two critical elements of their claim. Read more >>

Practice tips for valuation experts from tax court insiders

Judge Laro reminded experts to guard against domineering attorneys who insist on reviewing draft opinions and seek to nudge an expert into achieving a predetermined result. Valuation experts need to know the discovery rules (Rule 26 of the Federal Rules of Civil Procedure) rather than assume that all of the attorney-expert communication is protected. Read more >>

Destruction of financial evidence trips up guilty party's own experts

As a damages expert, what do you do when your own client has destroyed vital financial information? Two highly educated finance professionals working on a contract case solved this dilemma by relying exclusively on the opposing side's sales projections, only to see their analysis buckle under a Daubert challenge. Read more >>

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