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U.S. District Court (New York) Denies Daubert Challenge and Allows Testimony of DCF Method of Determining Damages

The plaintiff’s damages expert was challenged in a Daubert motion in this case asserting that his use of historical data from two comparable companies as the basis for his revenue growth estimates amounted to “cherry picking” rather than using a survey or other independent method. The court allowed the testimony, noting that “‘any selection of comparable companies is inherently the product of expert judgment,’ and the record does not indicate that [the expert’s] judgment was biased or otherwise flawed.”

Schiano v. Harsanyi

This case was important for two reasons. First, it was a bellwether deciding that an employee bookkeeper can be liable for assisting in fraudulent schemes representatives of the company perpetrate and can be found to have breached a fiduciary duty to the company. Secondly, forensic accountants, in determining damages, should now be alerted and alert attorneys to this possible liability of an employee bookkeeper.

New York Appellate Court Finds Bookkeeper Employee Liable for Aiding and Abetting Fraud and Breach of Fiduciary Duty

This case was important for two reasons. First, it was a bellwether deciding that an employee bookkeeper can be liable for assisting in fraudulent schemes representatives of the company perpetrate and can be found to have breached a fiduciary duty to the company. Secondly, forensic accountants, in determining damages, should now be alerted and alert attorneys to this possible liability of an employee bookkeeper.

Am. Nw. Distribs. v. Four Roses Distillery LLC

Even under the new FRE 702, testimony was admissible if it was “reliable” and based on an acceptable foundation and related to the case at hand. The expert in this case met all these requirements. Since the methodology the expert used was not challenged, that part of the new FRE 702 was not applicable. The court admitted the expert.

Washington U.S. District Court Rules Damages Expert’s Calculations Are ‘Reliable’ and Admissible Under Rule 702

Even under the new FRE 702, testimony was admissible if it was “reliable” and based on an acceptable foundation and related to the case at hand. The expert in this case met all these requirements. Since the methodology the expert used was not challenged, that part of the new FRE 702 was not applicable. The court admitted the expert.

Bombshell ruling on exclusion of damages experts in NFL case

“The Court agrees that [the experts’] testimonies based on their flawed methodologies should be excluded.” So wrote a federal judge in overturning the $4.7 billion verdict against the NFL in the Sunday Ticket antitrust case.

Damages experts brace for post-outage BI work

In the wake of the massive technology outage, the “large and significant factor around this outage is business interruption,” said Dave Burg, Kroll’s Global Head of Cyber Risk, in an interview with Bloomberg.

Brown v. Progressive Mt. Ins. Co.

In discussing and ruling on motions to exclude portions of testimony of three experts in a class action case against Progressive Insurance for breach of contract in determining the actual cash value to be paid in valuing a used car, the court provided well-reasoned decisions as to the application of FRE 702. It was in effect a tutorial.

U.S. District Court (Georgia) Rules on Various Motions to Exclude Testimony Under FRE 702 (A Tutorial)

In discussing and ruling on motions to exclude portions of testimony of three experts in a class action case against Progressive Insurance for breach of contract in determining the actual cash value to be paid in valuing a used car, the court provided well-reasoned decisions as to the application of FRE 702. It was in effect a tutorial.

ECB USA, Inc. v. Savencia, S.A.

This case was an example of the application of Rule 702 as to witness acceptance or exclusion. In this case, the same witness was allowed to testify in part and excluded in part.

U.S. District Court Allows Testimony in Part of Expert Witness on Certain Damages

This case was an example of the application of Rule 702 as to witness acceptance or exclusion. In this case, the same witness was allowed to testify in part and was excluded in part.

West v. Home Depot

While this was not a business valuation- nor a finance-related case, it was one of the first cases under the December 2023 amendments of Rule 702 that specifically addressed “a historic safe harbor” allowing challenges under cross-examination in place of exclusion of witnesses.

Federal District Court (Illinois) Rules That Prior ‘Historic Safe Harbor’ No Longer Comports With Rule 702

While this was not a business valuation- nor a finance-related case, it was one of the first cases under the December 2023 amendments to Rule 702 that specifically addressed “a historic safe harbor” allowing challenges under cross-examination in place of exclusion of witnesses.

Expert partially excluded in damages case

In Nevada, an expert was to testify in the Las Vegas Sun’s antitrust lawsuit against the Las Vegas Review-Journal.

Econometric Analysis in Lost Profits

An Econometric Analysis focuses on the application of economic theories and methods to legal issues, particularly in the assessment of lost profits. Join experts, Josh Shilts, CPA, ASA, ABV/CFF/CGMA, CFE and Brian Rohl, CPA, ABV, CFF, as they use a Regression Analysis to demonstrate how economic factors impact financial outcomes in legal cases. This session will include a real-life case study utilizing a Regression Analysis and includes the review and analysis of an incremental cost ...

Las Vegas Sun, Inc. v. Adelson

In this dispute between media companies, the court here ruled on some discovery issues and allowed the testimony of the defendant’s expert in part. Testimony related to methodology was allowed for a jury to decide, but the expert was not allowed to testify on any interpretation of a 2005 joint operating agreement or opine on the plaintiff’s intent to degrade the quality of the printed newspaper. These were legal conclusions or opinions as to the plaintiff’s state of mind.

Federal District Court (Nevada) Partially Excludes Expert’s Testimony and Also Limits Discovery in Damages Case

In this dispute between media companies, the court here ruled on some discovery issues and allowed the testimony of the defendant’s expert in part. Testimony related to methodology was allowed for a jury to decide, but the expert was not allowed to testify on any interpretation of a 2005 joint operating agreement or opine on the plaintiff’s intent to degrade the quality of the printed newspaper. These were legal conclusions or opinions as to the plaintiff’s state of mind.

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.

Slatowski v. Sig Sauer, Inc.

The defendant, an ICE officer, was injured when his pistol fired unintentionally. The defendant gun manufacturer, Sig Sauer, filed a motion for summary judgment, arguing that the plaintiff cannot establish its defective design product liability claim because the expert testimony it offered to prove causation was inadmissible and unreliable. The court granted the defendant’s motion.

Plaintiff Fails to Prove Causation—U.S. District Court (Pennsylvania) Grants Summary Judgment to Defendant

The defendant, an ICE officer, was injured when his pistol fired unintentionally. The defendant gun manufacturer, Sig Sauer, filed a motion for summary judgment, arguing that the plaintiff cannot establish its defective design product liability claim because the expert testimony it offered to prove causation was inadmissible and unreliable. The court granted the defendant’s motion.

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.

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