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Missouri says yes to Daubert

Missouri's governor recently signed into law a bill in favor of adopting the Daubert standard applicable to the admissibility of expert testimony. The move by the governor apparently is the first in several major tort reform measures he hopes to accomplish during his term.

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.

Damages testimony undergoes Daubert treatment in class certification stage

Class actions have their own rules, including when it comes to expert testimony. An unresolved issue is whether damages expert testimony is subject to a Daubert inquiry at the class certification stage, before the court has approved the request to proceed as a class action. The U.S. Supreme Court has yet to give clear guidance, but defendants are increasingly proactive and move to exclude the testimony at the beginning of the litigation in an attempt to thwart class certification and knock the case out early.

Expert’s Damages Opinion Specific Enough for Class Certification Stage

In a securities case, court applies Daubert analysis to plaintiff expert’s market efficiency opinion and event study; expert is qualified even without academic background, and his damages opinion is sufficiently specific to facts of the case and reliable.

Willis v. Big Lots, Inc.

In a securities case, court applies Daubert analysis to plaintiff expert’s market efficiency opinion and event study; expert is qualified even without academic background, and his damages opinion is sufficiently specific to facts of the case and reliable.

Defendant’s Move to Exclude Damages Expert at Class Certification Stage Fails

Court performs Daubert inquiry at class certification stage, finding plaintiffs’ expert testimony is admissible; expert has shown it is possible to calculate damages by applying common, reliable formula to entire class, court says, certifying class.

In re Stericycle, Inc.

Court performs Daubert inquiry at class certification stage, finding plaintiffs’ expert testimony is admissible; expert has shown it is possible to calculate damages by applying common, reliable formula to entire class, court says, certifying class.

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.

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.

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.

Chancery Relies on ‘Simple and Powerful’ DCF for Fair Value

Chancery finds gap separating fair value determinations of three valuation experts in a merger involving a privately held company “alarmingly” wide; court says only the DCF, “a simple and powerful concept,” achieves a reliable indicator of fair value.

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.

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.

Chancery Achieves Fair Value by Blending Three ‘Imperfect Techniques’

Court says uncertainty about company’s future performance and viability limits reliability of values derived from DCF and multiples-based comparable company analyses as well as deal price; court blends three “imperfect techniques” to determine fair value.

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.

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