Determining causation: What’s the expert’s role?

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Abstract: Tracing damages to a defendant’s alleged misconduct is important in complex commercial litigation. Damages typically are measured by a plaintiff’s lost profits. But declining profits can be caused by many factors, such as increased competition and rising costs, product obsolescence, legal issues, economic and industry trends, and regulatory changes. This article offers two real-world examples of how inexperienced “experts” failed to distinguish damages caused by the defendant’s acts from other types of business losses. Concord Boat Corporation v. Brunswick Corporation, 207 F.3d 1039 (8th Cir. 03/24/2000) Penn Mart Supermarkets, Inc. v. New Castle Shopping, LLC, No. 20405-NC (Del. Ch. 2005)