Page 64 - Economic Damages Calculation

Furthermore, the court held that the plaintiff’s expert failed to perform any analysis of the plaintiff's lost
deposits in comparison to financial institutions as a whole. The court took particular notice that the
plaintiff’s expert acknowledged that it was important to exclude other factors that contributed to the al-
leged loss. It was particularly damaging for the expert when the plaintiff’s officers testified that some or
all of the previously listed events would have had a "negative impact" on the plaintiff. While it may not
have been possible to overcome the laundry list of factors identified by the court, the failure to address
these potentially alternative causes of loss in his damages calculation seemingly made the exclusion of
the plaintiff’s damages expert all but certain.

Observations

As the court discussed in the Microstrategy Inc. v. Bus. Objects case, while an expert need not consider
every possible factor to render a "reliable" opinion, the expert still seeks to consider enough factors to
make his or her opinion sufficiently reliable in the eyes of the court. Here again though, the assembly of
a checklist of factors that are uniformly applicable is not a practical undertaking. Yet, some patterns do
emerge. For example, the courts appear to expect that a damages expert will consider whether the plain-
tiff was impacted by factors such as

• generally prevailing economic conditions;

• product quality issues unrelated to the defendant’s alleged conduct;

• technology changes such as the loss of intellectual property;

• market changes such as the development or acquisition of IP by a competitor;

• reputational harm for any reason other than the conduct of the defendant;

• loss of key personnel; or

• environmental issues such as hurricanes, earthquakes, freezes, and the like.

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