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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.

Case Collapses When Experts Apply Wrong Measure of Damages

District court adopts Bankruptcy Court’s finding that expert testimony was inadmissible because the plaintiff’s experts used the wrong method to calculate damages; lost profits were not available where the plaintiff’s business was completely destroyed.

Court Sets Aside Big Lost Profits Award Based on Bad Yardstick Analysis

Court strikes down multimillion-dollar lost profits award, finding it was based on expert testimony that was “sheer surmise and conjecture”; using yardstick method, expert claimed upstart company would have achieved 50% of sales of market leader.

Court Sets Aside Big Lost Profits Award Based on Bad Yardstick Analysis

Court reconsiders earlier order for retrial on lost value damages, finding plaintiffs “had no intention of pursuing a realistic damages award” and lack admissible evidence supporting multimillion-dollar value claims; instead, court awards one dollar.

Damages Calculation Admissible Under Facts Available to PI Expert

Court says P.I. expert properly based economic loss determination on plaintiff’s actual work situation at time of expert report instead of speculating about future earnings; testimony is helpful to jury because it explains issues not usually encountered.

Berman v. Unimin Corp.

Court says P.I. expert properly based economic loss determination on plaintiff’s actual work situation at time of expert report instead of speculating about future earnings; testimony is helpful to jury because it explains issues not usually encountered.

Court Nixes Royalty Calculation Relying on Unalike Prior Licenses

Court says prior licensing agreements undergirding expert’s hypothetical reasonable royalty have no bearing on what the parties would have negotiated for the trademark in dispute; court finds calculation too speculative to assist jury and excludes it.

No Automatic Bar to Royalties Accruing After Life of Patent

Court finds expert’s use of two-supplier and market share methods as well as Panduit test generate admissible lost profits calculation; court also admits expert’s reasonable royalty analysis, saying it does not include unlawful post-expiration sales.

Comcast Cable Communs. v. Sprint Communs. Co.

Court says forward citation method to determine value of patent in suit is not per se unreliable and royalty testimony based on it is admissible under Daubert; also, there is no bright-line rule against use of code- or step-counting for apportionment.

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.

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.

Case Collapses When Experts Apply Wrong Measure of Damages

District court adopts Bankruptcy Court’s finding that expert testimony was inadmissible because the plaintiff’s experts used the wrong method to calculate damages; lost profits were not available where the plaintiff’s business was completely destroyed.

Sherwood Invs. Overseas Ltd. v. Royal Bank of Scot. N.V. (In re Sherwood Invs. Overseas Ltd., Inc.)

District court adopts Bankruptcy Court’s finding that expert testimony was inadmissible because the plaintiff’s experts used the wrong method to calculate damages; lost profits were not available where the plaintiff’s business was completely destroyed.

Washington v. Kellwood Co. (III)

Court reconsiders earlier order for retrial on lost value damages, finding plaintiffs “had no intention of pursuing a realistic damages award” and lack admissible evidence supporting multimillion-dollar value claims; instead, court awards one dollar.

Court Sets Aside Big Lost Profits Award Based on Bad Yardstick Analysis

Court reconsiders earlier order for retrial on lost value damages, finding plaintiffs “had no intention of pursuing a realistic damages award” and lack admissible evidence supporting multimillion-dollar value claims; instead, court awards one dollar.

Expert Prevails by Documenting Adherence to Valuation Standards

In fraud case, court rejects Daubert challenge, finding expert sufficiently identified assumptions and estimates she relied on and properly re-created subject company’s financial situation based on AICPA standards and authoritative valuation treatises.

Is Expert Opinion Based Solely on Experience Admissible?

Court rules expert testimony based solely on experience may be admissible under Federal Rule of Evidence 702, notwithstanding Daubert requirements.

Daubert Flexible as to Solvency Determination for Multiple Debtor Entities

Court finds Daubert centers on reliability, not persuasiveness, and can accommodate experts’ different approaches to determining solvency in case with multiple debtor entities; court rejects exclusion of expert opinion relying on GAAP-based financials.

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.

Flawed Lost Profits Analysis Leaves Plaintiff Bereft of Damages Evidence

Court excludes damages opinion where expert relied on historical data from one construction project to calculate lost profits for subject project without establishing comparability as to type of contract and scope of work and by using “ad hoc” method.

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.

Court Nixes Royalty Calculation Relying on Unalike Prior Licenses

Court says prior licensing agreements undergirding expert’s hypothetical reasonable royalty have no bearing on what the parties would have negotiated for the trademark in dispute; court finds calculation too speculative to assist jury and excludes it.

Arctic Cat v. Sabertooth Motor Group

Court says prior licensing agreements undergirding expert’s hypothetical reasonable royalty have no bearing on what the parties would have negotiated for the ...

In Buyout, Income-Based Expert Appraisal Beats Other Value Indicators

In partnership dispute, appeals court affirms redemption award based on multiple-of-earnings valuation, finding valuation was reliable and admissible under state equivalent of Daubert and trial court had discretion to disregard other indicators of value.

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