Lost Profits Expert Need Not Define a Single But-For Market

The court denied defendant's motion to exclude the testimony of plaintiff's damages expert regarding lost profits as unreliable. "Instead of identifying a single but-for market in which to allocate lost sales, [the expert] opines that [plaintiff] would have made a share of [defendant's] sales in either of two market segments. . . . [Plaintiff's expert] expresses no opinion as to which of the two market segments more accurately models consumer behavior. . . . [Defendant] argues that [the expert's] lost profits analysis is unreliable because it fails to define a single relevant but-for market and that it is improper for [the expert] to thus leave the ultimate question of the appropriate market segment to use for calculation of lost profits damages to the trier of fact. . . . [Defendant] does not take issue with the methodology underlying each of [the expert's] two market reconstructions and there is no reason not to consider each of the reconstructions, on its own, sufficiently reliable to be helpful to the trier of fact. . . . [T]hat [the expert] leaves to the factfinder the determination of predicate facts underlying an ultimate determination of the appropriate lost profits within the reliably established range is not a ground to exclude his opinions."

EMC Corporation, et al v. Pure Storage Inc., 1-13-cv-01985 (DED February 11, 2016, Order) (Andrews, J.)