Page 42 - Economic Damages Calculation

The court allowed the testimony, ruling that Plaintiff’s expert’s reliance on facts that will ultimately be
decided at trial was not subject to exclusion under Daubert:

If the factual underpinnings of [Plaintiff’s expert’s] expert testimony regarding causation are
weak that is a matter not for exclusion, but as the Supreme Court stressed in Daubert for
"[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the
burden of proof . . . ". Daubert, 509 U.S. at 596. See also . . .United States v. Lauder, 409 F.3d
1254, 1264 (10th Cir. 2005) ("Daubert generally does not, however, regulate the underlying facts
or data that an expert relies on when forming her opinion."); Bonner v. ISP Techs., Inc., 259 F.3d
924, 929-30 (8th Cir. 2001) (stating that the "factual basis of an expert opinion goes to the credi-
bility of the testimony, not the admissibility, and it is up to the opposing party to examine the
factual basis for the opinion in cross-examination"). This portion of LG’s motion is therefore de-
nied. fn 15

Once again, this case illustrates that while the plaintiff must establish causation linking the alleged lia-
bility to the claimed damages, it may not be the responsibility of the damages expert to conclusively es-
tablish this link.

Observations

The cases described in the previous section provide examples in which the plaintiff’s expert was chal-
lenged for assuming causation, but the court allowed the plaintiff’s damages expert to testify. It is diffi-
cult to extract from these cases, or any cases, absolute rules that may be applied by damages experts that
determine whether to assume, or to test, causation. However, when one or more of the following factors
are present, the courts appear less likely to exclude the damages expert’s testimony on the basis of as-
sumed causation:

• When the alleged damages occur in less technical circumstances, which may include, for exam-
ple, personal injury; wrongful death; or business interruption actions.

• When the court has found that the expert has applied accepted methodologies to calculate the
amount of damages. fn 16

• When the calculation of damages does not rely on seemingly speculative assumptions (see figure
2). In other words, the more complications that exist with other aspects of the damages expert’s
testimony, the more likely causation may be identified by the court as a factor for exclusion.

• When no other obvious unaccounted-for causes of the damages are evident (see the following re-
lated section of this practice aid for further discussion).

• When multiple experts have been retained, including an expert providing reliable opinions on
causation.

fn 15 Id. at *6.

fn 16 For example, see Harris Wayside Furniture Co. v. Idearc Media Corp., 2008 WL 7109357 (D.N.H. Dec. 22, 2008).

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