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  • Court Allows Lost Profits Claim if Presented as the Expert’s Assumption, not Opinion

    September 21, 2012 Data Considered, Daubert, Lost Profits
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    Defendants filed a Daubert motion to exclude a lost profits claim where the expert assumed a 50% market share, based only on his client’s estimates. The district court denied the motion, thus allowing the testimony as long as the expert presents the 50% as assumption, not his opinion.

    Plaintiff’s expert Christopher Barry explained in his expert report that it was a two-supplier market, however, “some customers might not be educated on [Plaintiff’s] products and the availability of the [patented] hand-held atomizing induction tool. Therefore I conservatively assume that only 50% of [Defendant’s] accused induction tools and associated fluids would be captured by [Plaintiff].” His conclusion and opinion that Plaintiff would capture 50% was based exclusively on information provided by Plaintiff, and he conducted no independent investigation in this regard.

    The court allows the expert testimony as long as it is presented as a factual assumption. However, the expert is precluded from continuing to testify that his opinion is that Plaintiff would receive 50% of the sales, because such testimony does not appear to be grounded in sound economic and factual predicates.

    Illinois Tool Works Inc. v. MOC Products Company, Inc., 3-09-cv-01887 (S.D. CA, August 17, 2012, Order)(Sammartino)

     


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