Expert Testimony Based On Flawed Lost Profits Apportionment Methodology Excluded

The court granted in part plaintiff's motion to exclude the testimony of defendants' damages expert based on a flawed lost profits apportionment methodology. "[Defendants' expert] relied upon an apportionment factor of 16.7% to identify the portion of Defendants’ profits that should be attributed to Defendants’ unlawful conduct. In arriving at this percentage, [he] relies upon the testimony of [plaintiff’s national sales manager] and the report of . . . an expert who was subsequently withdrawn by Defendants. Despite a lack of experience in this area of marketing, [defendants' expert] essentially combined [their] testimony . . . and settled on five factors of demand for the product at issue. He then added a sixth factor, the effect of the alleged unlawful activity. Most troublesome, he then attributed equal weight to all six factors in creating his apportionment formula. There is no evidence in the record that supports this calculation. Therefore, the Court finds that the calculation of damages based on this apportionment theory is flawed and is not admissible."

Schutz Container Systems, Inc. et al v. Mauser Corp. et al, 1-09-cv-03609 (GAND March 31, 2014, Order) (Story, J.)