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BV News and Trends April 2024

A monthly roundup of key developments of interest to business valuation experts.

Court excludes valuation expert by mistake

In an Ohio divorce matter, an appellate court has remanded a case back to the trial court because it “abused its discretion” when it excluded a valuation expert’s testimony and report.

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.

Miller v. Miller

In this Ohio divorce case, the trial court did not consider a valuation report of a competent expert the husband submitted. As such, “the trial court erred by sustaining an objection which appellant never made and by rendering judgment without considering all the evidence presented.” The trial court also erred by failing to reserve jurisdiction to modify the spousal maintenance award and not explaining why it refused to do so. The Appellate Court remanded on both of the above issues.

Ohio Trial Court Fails to Consider Expert Testimony—Appellate Court Remands

In this Ohio divorce case, the trial court did not consider a valuation report of a competent expert the husband submitted. As such, “the trial court erred by sustaining an objection which appellant never made and by rendering judgment without considering all the evidence presented.” The trial court also erred by failing to reserve jurisdiction to modify the spousal maintenance award and not explaining why it refused to do so. The Appellate Court remanded on both of the above issues.

BVR Power Panel offers insights into recent issues

BVR has an ongoing webinar series of Power Panels, consisting of veteran practitioners and thought leaders covering recent trends and issues.

Business as usual (so far) under tougher Rule 702

The first reported appellate decision to cite the new Rule 702 changes has appeared, but there’s no sea change to report.

BV News and Trends February 2024

A monthly roundup of key developments of interest to business valuation experts.

The Wisdom of the Pastrami Sandwich: The Secret Sauce for Delivering Compelling Expert Testimony

In this workshop, forensic expert Michael Kaplan and jury trial consultant and communications specialist Jesse Wilson identify and explore the powerful storytelling skills that transform technically accurate, matter-of-fact testimony into a story that will persuade the jurors. Through the expert testimony of our attendee volunteers, Jesse and Michael demonstrate the incorporation of these skills into expert testimony, transforming otherwise factual and accurate testimony into powerful stories that become compelling expert testimony.

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.

BVLaw Review: The Top Valuation Cases of 2023

The BVLaw platform added approximately 70 cases during 2023, bringing the total to about 4,300 cases in the database. The cases are all related in some way to valuation, economic damages and lost profits, and other litigation. This article is a rundown of some of the more important cases for 2023.

BV News and Trends January 2024

A monthly roundup of key developments of interest to business valuation experts.

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.

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.

Julie A. Su v. Reliance Trust Co.

In this ESOP-related case, the court ruled that two experts of a former defendant can testify for the remaining defendants to the extent their testimony was not duplicative. The defendant’s motion to exclude testimony of the government’s (plaintiff’s) witness because the new FRE 702 rules were not followed was denied, as the court explained the new FRE 702 had not been violated.

U.S. District Court Allows Nonduplicative Testimony of Experts and Allows Testimony on Clarification of New FRE 702

In this ESOP-related case, the court ruled that two experts of a former defendant can testify for the remaining defendants to the extent their testimony was not duplicative. The defendant’s motion to exclude testimony of the government’s (plaintiff’s) witness because the new FRE 702 rules were not followed was denied, as the court explained the new FRE 702 had not been violated.

What to know from the first-ever ASA litigation conference

BVWire attended the ASA’s 2023 Litigation in Valuation Conference last week, which was the first of its kind offered by the ASA.

Key Points From the VSCPA Forensic and Valuation Conference

An economic update, a new IRS crackdown, goodwill, reasonable comp, healthcare insights, expert testimony, and options are among the topics recapped from the annual two-day Forensic and Valuation Conference hosted by the Virginia State Society of CPAs.

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