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Expert’s critique of opposing valuation gets excluded

In a Tennessee damages case, the defense engaged a valuation expert to do two things: (1) critique the valuation report of the opposing side; and (2) offer his own estimate of damages.

Another expert ‘Dauberted’ out of a damages case

In last week’s issue, we reported on a damages case in which a valuation expert’s testimony was excluded because of the methodology used in the analysis. In this week’s case (also a damages matter), the expert didn’t even get that far before being excluded.

Lost profits calculation goes off the track

In a Missouri breach of contract case, the plaintiffs were carriers who delivered print newspapers to subscribers under an agreement that gave them territorial rights.

Rieves v. Town of Smyrna

The plaintiffs’ business was allegedly damaged by the actions of the defendant. The plaintiffs engaged an expert in economic damages and lost profits. The defendants engaged their own expert to provide his opinions as to why he believed the plaintiffs’ expert’s opinions were unreliable. The court ultimately excluded this portion of the defendants’ expert’s testimony. The defendants’ expert’s calculation of damages, however, was a matter for cross-examination and will be allowed.

U.S. District Court Excludes Expert’s Testimony on Critique of Plaintiffs’ Damages but Allows Same Expert Testimony on His Damages Calculation

The plaintiffs’ business was allegedly damaged by the actions of the defendant. The plaintiffs engaged an expert in economic damages and lost profits. The defendants engaged their own expert to provide his opinions as to why he believed the plaintiffs’ expert’s opinions were unreliable. The court ultimately excluded this portion of the defendants’ expert’s testimony. The defendants’ expert’s calculation of damages, however, was a matter for cross-examination and will be allowed.

U.S. Appellate Court Affirms Witness’s Exclusion—Cites New Rule 702 but Follows Abrogated Precedent Instead

The district court in this case excluded the testimony of the plaintiffs’ medical expert witness in this medical malpractice case, citing Rule 702, resulting in a summary judgment against the plaintiffs. The plaintiffs appealed, but the circuit court affirmed the district court, citing Rule 702 in affirming the exclusion of the plaintiffs’ witness. Even though the 2023 amended Rule 702 was cited, the circuit court reverted back to the pre-amended Rule 702 to bolster its exclusion of the witness.

Rodriguez v. Hosp. San Cristobal, Inc.

The district court in this case excluded the testimony of the plaintiffs’ medical expert witness in this medical malpractice case, citing Rule 702, resulting in a summary judgment against the plaintiffs. The plaintiffs appealed, but the circuit court affirmed the district court, citing Rule 702 in affirming the exclusion of the plaintiffs’ witness. Even though the 2023 amended Rule 702 was cited, the circuit court reverted back to the pre-amended Rule 702 to bolster its exclusion of the witness.

Business Valuation Update Yearbook, 2024 Edition

January 2024 PDF, Softcover (401 pages)

BVR (editor)

Business Valuation Resources, LLC

Another year has come and gone and it's time again for one of BVR's “greatest hits” publications!  The Business Valuation Update Yearbook 2024 covers the previous year’s most groundbreaking and thought-provoking advancements in valuation.  It captures changes in regulations and professional standards, key takeaways from professional conferences, and tactical practice-building ideas. This critical desktop reference puts you ahead of the competition with on-the-ground reporting by the BVR editorial team including an Introduction by Andy Dzamba, BVR Executive Editor and insights from notable BV experts. Learn more >>

Business Valuation Case Law Yearbook, 2024 Edition

January 2024 PDF, Softcover (222 pages)

BVR (editor)

Business Valuation Resources, LLC

The legal coverage and in-depth analysis from the BVR legal team including an Introduction by Jim Alerding, BVR Legal Editor delivers lessons learned to help appraisers reach better and more defensible valuation conclusions. The 2024 Yearbook illustrates how financial experts helped their side win (and lose) in the courtroom and includes 70 new cases that were added to BVLaw in 2023. Learn more >>

Motobilt, Inc. v. Bystronic, Inc.

In this breach of warranty case, the plaintiff offered opinions of a damages expert but found the expert’s opinions inadmissible. The defendant argued that the plaintiff’s expert “applies accounting and economic principles” to assess the value of the equipment, but his report did not identify any such principles or explain how they supported his valuation methodology. Since the plaintiff had no damages evidence to offer, the defendant was granted summary judgment.

U.S. District Court Finds Plaintiff’s Expert’s Testimony Inadmissible and Grants Summary Judgement to Defendant

In this breach of warranty case, the plaintiff offered opinions of a damages expert but found the expert’s opinions inadmissible. The defendant argued that the plaintiff’s expert “applies accounting and economic principles” to assess the value of the equipment, but his report did not identify any such principles or explain how they supported his valuation methodology. Since the plaintiff had no damages evidence to offer, the defendant was granted summary judgment.

Bextermueller News Distribs., Inc. v. Lee Enters.

In determining damages, the plaintiffs’ damages expert used a method of determining damages revolving around a calculation of lost revenue. The defendants argued the testimony was irrelevant and unreliable because the lost revenue calculations were based on the erroneous premise that the plaintiffs were entitled to recover, as damages, delivery fees for digital subscribers to a newspaper. The court disagreed and excluded the expert’s testimony under Rule 702.

Plaintiff Expert Is Excluded—Lost Revenue Calculation Is Not an Approach Allowed for Damages in Missouri (Rule 702 Exclusion)

Plaintiff news carriers operated as home delivery carriers under a contract with the defendant newspaper. Around 2017, the defendant began offering an electronic version of the newspaper, allegedly breaching the exclusive territorial provisions of the contract with the carriers. In determining damages, the plaintiffs’ damages expert used a method of determining damages revolving around a calculation of lost revenue. The defendants argued her testimony was irrelevant and unreliable because her lost revenue calculations were based on the erroneous premise that the plaintiffs were entitled to recover, as damages, delivery fees for every digital subscriber. The court disagreed and excluded the expert’s testimony under Rule 702.

Trade Secret Damages

Trade secrets are one of the primary forms of intellectual property, along with patents, trademarks, and copyrights. Trade secrets essentially are confidential proprietary information that provide a competitive advantage by not being known or generally available to competitors. As a result, trade secrets are frequently valuable. Unlike patents, trademarks, and copyrights, trade secrets can only be established in court, as the existence of a trade secret is a question of fact to be determined by ...

Recovery of both lost profits and disgorgement not allowed in New York case

In a New York case, the issue of damages involved a Lego interpretation model of the Second Beit Hamikdash, or Second Holy Temple, and an alleged infringement of the copyright on this model (click here to see the model).

Testimony of damages expert excluded due to no basis

In a Pennsylvania breach of contract case, the plaintiff’s damages expert was to testify as to lost profits.

Doe v. Trs. of Dartmouth Coll.

The defendant in this action, trustees of Dartmouth College, moved to have the testimony of the plaintiff’s expert as to lost wages and lost earning capacity excluded. The plaintiff had filed an action against the defendant for breach of contract and violation of Title IX by expelling him from Dartmouth’s Geisel School of Medicine. The court granted in part and denied in part the motion to exclude.

U.S. District Court Allows Expert Testimony on Lost Wages and Lost Earning Capacity in a Title IX Private Action

The defendant in this action, trustees of Dartmouth College, moved to have the testimony of the plaintiff’s expert as to lost wages and lost earning capacity excluded. The plaintiff had filed an action against the defendant for breach of contract and violation of Title IX by expelling him from Dartmouth’s Geisel School of Medicine. The court granted in part and denied in part the motion to exclude.

Taylor Precision Prods. v. Larimer Grp., Inc.

In the damages portion of this complex suit, the court determined damages based on the plaintiff’s expert’s determination and report of same. It awarded damages on the first component of his damages calculation, the damages based on an adjusted “lost” EBITDA, but not on the second component, which the court deemed to be speculative.

Plaintiff Awarded Direct Damages But Not Speculative ‘Growth Damages’

In the damages portion of this complex suit, the court determined damages based on the plaintiff’s expert’s determination and report of same. It awarded damages on the first component of his damages calculation, the damages based on an adjusted “lost” EBITDA, but not on the second component, which the court deemed to be speculative.

JBrick, LLC v. Chazak Kinder, Inc.

The defendants challenged the testimony of the plaintiff’s damages expert, and the plaintiff challenged the testimony of the defendants’ damages rebuttal expert. The case involved a Lego interpretation model of the Second Beit Hamikdash, or Second Holy Temple, and an alleged infringement of the copyright on this model. The court struck the plaintiff’s expert’s damages of a product related to the Temple Product but allowed testimony of damages on the Temple Product. The court also struck the plaintiff’s expert’s testimony that the plaintiff should be awarded lost profits on the Temple Product plus a disgorgement of the defendants’ profits. Both may not be awarded. The court also struck portions of the defendants’ rebuttal testimony and report.

Daubert Challenges on Experts on Damages Partially Successful

The defendants challenged the testimony of the plaintiff’s damages expert, and the plaintiff challenged the testimony of the defendants’ damages rebuttal expert. The case involved a Lego interpretation model of the Second Beit Hamikdash, or Second Holy Temple, and an alleged infringement of the copyright on this model. The court struck the plaintiff’s expert’s damages of a product related to the Temple Product but allowed testimony of damages on the Temple Product. The court also struck the plaintiff’s expert’s testimony that the plaintiff should be awarded lost profits on the Temple Product plus a disgorgement of the defendants’ profits. Both may not be awarded. The court also struck portions of the defendants’ rebuttal testimony and report.

Wong v. Wong

The defendants and plaintiffs were all family members who co-owned seven apartment buildings that the defendants managed. The defendants embezzled profits from the buildings for at least a decade. On appeal, the defendants conceded plaintiffs were entitled to an award of both compensatory and punitive damages based on their wrongdoing, but they challenged the amount of the awards. The appellate court agreed that the punitive damages were excessive as a matter of law and adjusted them. All other defendants’ contentions were rejected, and the trial court was affirmed in those matters.

California Appeals Court Reduces Punitive Damages as Being Excessive

The defendants and plaintiffs were all family members who co-owned seven apartment buildings that the defendants managed. The defendants embezzled profits from the buildings for at least a decade. On appeal, the defendants conceded plaintiffs were entitled to an award of both compensatory and punitive damages based on their wrongdoing, but they challenged the amount of the awards. The appellate court agreed that the punitive damages were excessive as a matter of law and adjusted them. All other defendants’ contentions were rejected, and the trial court was affirmed in those matters.

Paramount Fin. Commc’ns, Inc. v. Broadridge Inv’r Commc’n Sols., Inc.

In a post-judgment order and opinion, the court struck the testimony of the plaintiff’s damages expert witness and ordered a new trial on damages. The plaintiff moved for reconsideration of the order. The court denied the plaintiff’s motion in this breach of contract case. There was insufficient evidence in the record to support the damages calculation.

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