Page 96 - Economic Damages Calculation

il impunity." . . . "[T]he fact that Maximus had never engaged in collecting child support in Vir-
ginia cannot be used to deprive it of damages." fn 121

Under Wood v. Pender-Doxey, the plaintiff could recover damages despite difficulty in calculating dam-
ages with mathematical precision or reasonable certainty. fn 122 Referring to Wood, the Supreme Court of
Virginia stated:

[I]n cases involving an intentional wrong the degree of proof necessary is much relaxed in favor
of the injured party. Where the wrongdoer creates the situation that makes proof of the exact
amount of damages difficult, he must realize that in such cases "juries are allowed to act upon
probable and inferential, as well as direct and positive, proof." fn 123

The trial court considered that Maximus had child support ventures in other jurisdictions and that the
DSS had collections in Virginia. The Supreme Court of Virginia ultimately accepted the trial court’s rul-
ing regarding damages.

While most newly undertaken ventures may not have the requisite record of performance and
thus come within the "new business rule," that is a decision to be made by the trial court in the
first instance. In allowing the jury to consider Maximus’ evidence of lost profits and other dam-
age evidence, the trial court here did not eliminate the new business rule or the requirement that
damages must be shown with reasonable specificity. The trial court only held that, in a claim for
intentional interference with business expectancy, recovery will not be defeated solely because
the business expectancy is not one which is identical in every detail to the injured party’s previ-
ous actual experience. fn 124

The Supreme Court of Virginia appeared to be concerned with the implications of following the new
business rule under the particular facts of this case, creating incentives for bad behavior. There were fac-
tual allegations in Lockheed’s original protest that were proven at trial to not be true, the use of which
by Lockheed in pursuing the matter was arguably misleading. In addition, the Supreme Court of Virgin-
ia used language that appeared to limit a broad interpretation of its decision. However, this case provides
insight into circumstances in which a court in a state that follows a stricter form of the new business rule
may be open to allow the recovery of lost profits by a new business.

Cases Highlighting Other Relevant Considerations

General Observations

An additional consideration is that state courts are not required to follow federal court rulings regarding
treatment of the new business rule. For example, in RSB Lab. Svcs., Inc. v. BSI, Corp., fn 125 the Superior

fn 121 Id. (citing Wood v. Pender-Doxey, 144 S.E. 635 (Va. 1928)).

fn 122 Wood v. Pender-Doxey, 144 S.E. 635 (Va. 1928).

fn 123 Id. at 430 (citations omitted).

fn 124 Id.

fn 125 847 A.2d 599 (N.J. Super. Ct. App. Div. 2004).

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