Page 77 - Acertaining Economic Damages Calculation

the CPA. More importantly, the court found statements made by the plaintiff outside of the litigation to
be in conflict with claims made in litigation:

The best evidence we have to go on are Plaintiff's own contemporaneous assessments of TTRA's
impact. For instance, a December 3, 1992, letter intended for "interested friends" concedes, "to
date there has been no impact on cash from the comparability add-on, however the possibility is
always present..." APC made the same assessment for the year 1993. It is well established that
such a contemporaneous assessment has greater evidentiary value than conflicting post hoc
expert testimony. [emphasis added] fn 14

With respect to the production limitations on timber volume, the court reasoned that these limitations
would only be of relevance if APC was likely to have hit the maximum capacity allowed under the orig-
inal contract. Based upon the evidence introduced at trial, APC could not afford to purchase all the tim-
ber that it would have otherwise been allowed under the contract due to changes in economic conditions.
Because the company was required to process all it purchased, its supply of product available for sale
exceeded demand, which led to costly increases in warehousing expenses, as evidenced by remarks
made by its president and chairman, who stated at a mill managers’ meeting, "We cannot be production
driven in a market that will not absorb the production. We have to adjust that production to what the
market will take." fn 15

APC was eventually forced to close the pulp mill, which APC’s president attributed to a myriad of nega-
tive micro- and macro-economic factors he described in numerous speeches and presentations in the
months leading up to the closure. The court observed the following:

When one considers the contractual guarantees that were negated by the statute, it is easy to as-
sume that, collectively, these broken promises must have had a devastating effect on the contrac-
tor's rights. That was certainly the self-serving testimony of Plaintiff's witnesses, and the overall
theme of its case. But one need look no further than APC's actual behavior to realize that was not
the case at the time. fn 16

The collective conclusions reflected in the many contemporaneous statements made by APC’s manage-
ment were deemed to be considerably more persuasive than the testimony offered by the plaintiff’s team
of appraisers, economists, and other experts on the TTRA damages.

Best Evidence and the Use of Customer Survey Data

Surveys are sometimes used to establish consumer preferences and predict buying behavior that may be
relevant to establish lost profits or reasonable royalties, often seen in matters involving intellectual prop-
erty disputes. Although a survey expert may plan or conduct the survey, the survey results may be useful
to the damages expert as part of his analysis, provided the survey is designed and conducted in accord-
ance with accepted standards. Surveys are discussed in the Reference Manual on Scientific Evidence as
follows:

fn 14 Alaska Pulp, 59 Fed. Cl. at 418.

fn 15 Id. at 420.

fn 16 Id.

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