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.
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.
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.
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.
New Rule 702 crackdown already impacting expert witnesses
Although they don’t officially go into effect until December 1, expert witnesses are already feeling the effects of the changes designed to strengthen Rule 702, which is the federal rule of evidence regarding testifying experts.
‘Fawning terms’ help sink valuation
In an Iowa divorce case, the appellate court affirmed the trial court’s decision to reject the valuation of the husband’s expert for one of his three businesses.
In re Marriage of Marasco
This case was an appeal of an Iowa marital dissolution decree. The husband on appeal argued the value the wife’s expert determined was too high and should not have been relied on. The appellate court noted that part of the reason the trial court used the wife’s expert’s appraisal was that the business was able to obtain a $10 million loan during the time of the valuation. Additionally, the appellate court affirmed that the entire value of the business was community property.
Iowa Court of Appeals Affirms Value of Husband’s Business Determined by Wife’s Expert and Includes Total Value as Marital Property
This case was an appeal of an Iowa marital dissolution decree. The husband on appeal argued the value the wife’s expert determined was too high and should not have been relied on. The appellate court noted that part of the reason the trial court used the wife’s expert’s appraisal was that the business was able to obtain a $10 million loan during the time of the valuation. Additionally, the appellate court affirmed that the entire value of the business was community property.
Using Regression Analysis in Business Valuation
As valuation analysts, we often analyze how one or more variables explain the behavior of another variable such as revenues or trends in market multiples. We are also tasked with analyzing trends in data over time to be used as a basis for a forecast of future expected results. A tool that helps us analyze the relationships between variables is linear regression. Linear regression models can be useful tools in analyzing relationships between economic and ...
Expert Survives Daubert—Allowed to Testify as to Lost Business Value
The case dealt with two motions to preclude testimony of an expert witness as to the loss in value of the plaintiff’s business. The plaintiff was an environmental consulting firm allegedly injured as a result of the actions of certain employees including breach of their fiduciary duty. The court concluded that the witness may testify because his report was based on sufficient facts and data and he applied reliable principles to the facts of this case.
White Buffalo Env’t, Inc. v. Hungry Horse, LLC
The case dealt with two motions to preclude testimony of an expert witness as to the loss in value of the plaintiff’s business. The plaintiff was an environmental consulting firm allegedly injured as a result of the actions of certain employees including breach of their fiduciary duty. The court concluded that the witness may testify because his report was based on sufficient facts and data and he applied reliable principles to the facts of this case.
In a damages case, one expert survives Daubert, another does not
In an ongoing damages case in Delaware, the plaintiff had a Daubert motion to exclude the opinions of the defendant’s rebuttal expert.
Ipse dixit nixes some of expert’s opinion
In an economic damages case in Delaware, both sides filed a number of motions to exclude expert testimony, evidence, and arguments.
VeroBlue Farms USA Inc. v. Wulf
In this complex case, which the district court judge called “a doozy,” the subject of this subissue was a motion by the defendants to exclude the testimony of the plaintiff’s (VeroBlue Farms USA Inc.) damages expert, Brandi Kleinman, CPA/CFF. The district court judge assigned the case to the court’s magistrate judge for recommendation of decision. The motion alleged a multitude of issues and flaws with the opinions of Kleinman. The magistrate, despite these alleged issues and flaws, denied the motion, thereby allowing Kleinman to testify.
U.S. District Court (Texas) Allows Testimony of Damages Expert Despite Alleged ‘Flawed Opinions’
In this complex case, which the district court judge called “a doozy,” the subject of this subissue was a motion by the defendants to exclude the testimony of the plaintiff’s (VeroBlue Farms USA Inc.) damages expert, Brandi Kleinman, CPA/CFF. The district court judge assigned the case to the court’s magistrate judge for recommendation of decision. The motion alleged a multitude of issues and flaws with the opinions of Kleinman. The magistrate, despite these alleged issues and flaws, denied the motion, thereby allowing Kleinman to testify.
Appraisers Continue to Be Excluded Most Under Daubert, Per PwC Study
Under Daubert, appraisers were excluded more often in 2021 than any other type of financial expert witness, according to the latest edition of an annual PwC survey. Of the three most common financial experts (economists, accountants, and appraisers), appraisers had a 38% exclusion rate in 2021, followed by accountants (32%) and economists (27%). The article gives more insights into the survey and some ways to avoid a Daubert challenge.
Delaware Court Grants in Some Cases and Denies in Others Motions to Exclude Expert Witnesses and Certain Evidence to Be Presented
In this ongoing case regarding investment banking services and fees, the court ruled on various motions of the parties to exclude certain testimony from two expert witnesses, one from each side, and to exclude certain evidence to be presented by those witnesses. The court denied the plaintiff’s motions but granted the defendant’s motions.