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Don’t assume causation, AICPA panel warns damages experts

Causation presents one of the most vexing problems for damages experts. But ignoring causation and simply working off the assumption that it exists may end up being the biggest problem for an expert.

United States ex rel. Landis v. Tailwind Sports Corp.

In Daubert case, court finds government’s combined expert testimony concerning financial impact of negative publicity on sponsor (USPS) of Lance Armstrong and his cycling team provides “sufficiently non-speculative framework for determining damages.”

Combined Expert Testimony May Provide Valid Damages Framework

In Daubert case, court finds government’s combined expert testimony concerning financial impact of negative publicity on sponsor (USPS) of Lance Armstrong and his cycling team provides “sufficiently non-speculative framework for determining damages.”

Federal Circuit drills down into Panduit, apportionment, and lost profits

The Federal Circuit recently examined a paramount damages issue that comes up in patent cases: whether, in terms of calculating lost profits, the patent holder’s ability to meet the Panduit factors makes a separate apportionment analysis unnecessary.

Loss of Value Damages Does Not Require Showing of Complete Destruction

In tortious interference with business relations case, 8th Circuit says district court did not err when it allowed plaintiff’s expert to testify to total loss of value where company was not completely destroyed but harmed; damages award was not excessive.

West Plains, LLC v. Retzlaff Grain Co. (II)

In tortious interference with business relations case, 8th Circuit says district court did not err when it allowed plaintiff’s expert to testify to total loss of value where company was not completely destroyed but harmed; damages award was not excessive.

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.

No ‘Circular Reasoning’ in Expert’s Lost Profits Calculation

Appeals court upholds lost profits award, finding expert’s damages model was admissible under Daubert; market survey was only one of “competing principles or methods” to gather facts on sales, and failure to use it does not make opinion per se unreliable.

Expert’s Exclusion Dooms ‘Frozen Market’ Theory and Loss of Value Claims

Court excludes expert damages calculation where expert relied solely on “temporal relationship” to show causation between loss of value in plaintiff’s business and defendants’ actions and did not account for alternative explanation for plaintiff’s loss.

Federal Circuit Discusses Rationale Behind Different Measures of Damages

Federal Circuit says expert’s royalty analysis was not improper “pseudo” lost profits analysis that tried to circumvent higher standard of proof, where expert considered plaintiff’s profits as one of many factors in her hypothetical-negotiation model.

Federal Circuit reacts coolly to ‘pseudo’ lost profits argument; royalty analysis may consider profits

The Federal Circuit recently found a reasonable royalty calculation that took into account the plaintiff’s profit margin was not a lost profits analysis in disguise. The plaintiff’s expert did not try to circumvent the “but for” causation requirement that applied to a lost profits claim.

Packgen v. Berry Plastics Corp. (II)

Appeals court upholds lost profits award, finding expert’s damages model was admissible under Daubert; market survey was only one of “competing principles or methods” to gather facts on sales, and failure to use it does not make opinion per se unreliable.

No ‘Circular Reasoning’ in Expert’s Lost Profits Calculation

Appeals court upholds lost profits award, finding expert’s damages model was admissible under Daubert; market survey was only one of “competing principles or methods” to gather facts on sales, and failure to use it does not make opinion per se unreliable.

Expert’s Exclusion Dooms ‘Frozen Market’ Theory and Loss of Value Claims

Court excludes expert damages calculation where expert relied solely on “temporal relationship” to show causation between loss of value in plaintiff’s business and defendants’ actions and did not account for alternative explanation for plaintiff’s loss.

TiVo Research & Analytics, Inc. v. TNS Media Research

Court excludes expert damages calculation where expert relied solely on “temporal relationship” to show causation between loss of value in plaintiff’s business and defendants’ actions and did not account for alternative explanation for plaintiff’s loss.

Danmark v. CMI USA, Inc.

Federal Circuit says expert’s royalty analysis was not improper “pseudo” lost profits analysis that tried to circumvent higher standard of proof, where expert considered plaintiff’s profits as one of many factors in her hypothetical-negotiation model.

Federal Circuit Discusses Rationale Behind Different Measures of Damages

Federal Circuit says expert’s royalty analysis was not improper “pseudo” lost profits analysis that tried to circumvent higher standard of proof, where expert considered plaintiff’s profits as one of many factors in her hypothetical-negotiation model.

8th Circuit Validates Employment Contract and Damages Related to Breach

Appeals court affirms plaintiff’s employment contract with employee is enforceable, and competitor interfering with it is liable for profits plaintiff employer lost; court notes plaintiff established causation and proved loss with reasonable certainty.

2nd Circuit Chafes at Wholesale Exclusion of Loss Causation Testimony

Second Circuit says district court “went astray” when, under Daubert, it excluded entire loss causation and damages testimony of plaintiffs’ expert instead of just eliminating unreliable part; appeals court ruling revives securities fraud class action.

Defendant’s Obfuscatory Tactics to Preclude Expert Testimony Fail

Court rejects defendant’s relevance attack on plaintiff expert’s opinion, noting under Daubert testimony need not “fit” a particular cause of action but is relevant where it assesses damages based on harm to plaintiff caused by defendant’s misconduct.

Loss of Value Damages Does Not Require Showing of Complete Destruction

In tortious interference with business relations case, trial court rejects post-trial attack, finding sufficient evidence to support jury award to plaintiff, including expert testimony about total loss of value to company based on defendants’ misconduct.

West Plains, LLC v. Retzlaff Grain Co. (I)

In tortious interference with business relations case, trial court rejects post-trial attack, finding sufficient evidence to support jury award to plaintiff, including expert testimony about total loss of value to company based on defendants’ misconduct.

Showers v. Pfizer, Inc. (In re Pfizer Inc. Sec. Litig.)

Second Circuit says district court “went astray” when, under Daubert, it excluded entire loss causation and damages testimony of plaintiffs’ expert instead of just eliminating unreliable part; appeals court ruling revives securities fraud class action.

St. Jude Med. S.C., Inc. v. Biosense Webster, Inc.

Appeals court affirms plaintiff’s employment contract with employee is enforceable, and competitor interfering with it is liable for profits plaintiff employer lost; court notes plaintiff established causation and proved loss with reasonable certainty.

No Legal Barrier to ­Expert’s Adjusted Lost Profits ­Analysis

Federal Circuit upholds lost profits award based on adjusted market share analysis, finding expert accounted for huge price disparity between patentee’s product and infringer’s product and based market elasticity discount on sound economic principles.

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