When it comes to damage calculations, the term “speculative” is effectively a death sentence. In order to provide evidentiary value, a damage calculation must be to a reasonable degree of certainty. In Carter v. Clements Walker PLLC, et al. (“CW”), the Court found that despite an expert opinion that Carter suffered $33 million in damages, there was “no evidence in the record from which the court or a jury could conclude with reasonable certainty that Carter suffered any actual damages” and granted CW’s Motion for Summary Judgment (“MSJ”).
The Court found that Carter’s deposition testimony and discovery responses created a record without any damages evidence. Carter then attempted to introduce an expert opinion of millions in damages that the court found highly deficient:
Only Gariboldi’s report, which estimates that RCI sustained $33 million in lost profits as a result of losing foreign patent protection, even purports to provide any valuation of RCI’s damages. In light of the overwhelming evidence that neither RCI nor Carter had, at the time of his opinion, ever realized or reasonably projected any commercial value from the invention (even though it had domestic patent protection), Gariboldi’s speculative, bare-bones conclusion is insufficient to create a genuine issue of material fact on whether Carter suffered damages”
“In his response to Defendants’ Motion for Summary Judgment, Carter did not include any other portions of this report, argue that it creates a genuine issue of material fact as to Carter’s damages, or otherwise attempt to support or bolster Gariboldi’s opinion.”
While establishing damages in an untapped market may in some cases be appropriately deemed speculative, there are approaches which may in certain cases overcome this obstacle. As noted by the Court, Carter did himself a disservice by refusing to produce documents that may have bolstered his claim and failing to integrate information that might have been reasonably relied upon by his expert into his earlier discovery responses. This article provides a more detailed discussion and practical suggestions to establishing damages.