Page 16 - Acertaining Economic Damages Calculation

Further quoting TK-7 Corp. v. Estate of Barbouti, fn 3 the court pointed out that "[e]ssentially, [the ex-
pert’s] ‘lack of familiarity with the methods and reasons underlying... [Grey Israel’s] projections virtual-
ly precluded any assessment of the validity of the projections through cross-examination,’" a fact which
the court appeared to find troubling as the existence of a robust cross-examination has been pointed to
underpin Rule 703 that allows experts to rely on hearsay. fn 4 Accordingly, the court concluded that the
expert did not meet the Daubert requirements because he did not know the basis for his lost sales testi-
mony.

Moreover, the plaintiff’s expert gave a "ballpark" estimate of growth rates based upon his recollection of
growth rates of other products that he had worked with in the past without checking the accuracy of his
recollection or the specific growth rates of those products. The expert did not perform any calculations
to arrive at the growth rates, he did not base his growth rates on any experience with growth rates in the
diet products industry, and he did not base his growth rates on growth rates of any products in any other
industry. On this basis, the court concluded that the expert did not meet the Daubert requirements be-
cause his opinion on the growth rates of the distributor's lost sales was based on an approximation of
growth rates of other products without making a "valid scientific connection to the potential growth rate
for a specific diet product."

In concluding on the issue of admissibility of the expert’s opinion regarding the growth rate, the court
noted that the expert's

...opinion does not provide an even remotely adequate explanation to bridge the 'analytical gap
between the data and the opinion offered.' GE v. Joiner, 522 U.S. 136, 146, 139 L. Ed. 2d 508,
118 S. Ct. 512 (1997). First, he has no recollection, and has not verified the accuracy, of the oth-
er products' growth figures upon which he bases his opinion. And second, he does not demon-
strate how his general experience and 'approximate' knowledge of the growth rates of those other
product markets translates into the potential growth rate for Slim-Fast's diet products. Pfizer, Inc.
v. Advanced Monobloc Corp., 1999 Del. Super. LEXIS 330. No. 97C-04-037-WTQ, 1999 WL
743927, at *5 (Del. Super. Ct. Sept. 2, 1999). fn 5

Finally, in resolving defendant’s motions for summary judgment, the court cited the Tanner court, which
had stated that "[i]t is clear that, in order to recover profits lost by [the] defendant’s breach of contract,
the plaintiff must lay a basis for a reasonable estimate of his loss." Because the court found that Chemi-
pal’s expert’s opinion "must be precluded for lack of reliability," plaintiff lacked evidence of its damag-
es. Thus, the court ultimately granted defendant Slim-Fast’s motion for summary judgment.

Bruno v. Bozzuto’s, Inc., 311 F.R.D. 124 (M.D. Pa. 2015)

In this matter, plaintiffs, who were owners and operators of a small supermarket chain, accused the de-
fendant, a wholesale distribution company, of breach of contract related to the potential supply and fi-
nancing of its grocery operations. In support of the damage claim, plaintiffs retained two experts, who
together prepared a damages model predicated on a pro forma projection prepared by defendant. De-

fn 3 TK-7 Corp. v. Estate of Barbouti, 993 F.2d 722, 732 (10th Cir. 1993).

fn 4 See TK-7 Corp. v. Estate of Barbouti, 993 F.2d 722, 732 (10th Cir. 1993) cited by the Chemipal court.

fn 5 Chemipal Ltd., 350 F. Supp. 2d at 595.

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