The Recorder
30-day free ttrial
  • Home
  • News
  • Cases & Courts
  • In Practice
  • Special Reports
  • Events
  • Lawjobs
  • About Us

Home > Court Backs Exclusion of Expert's 'Speculative' Testimony

Font Size: increase font decrease font

Court Backs Exclusion of Expert's 'Speculative' Testimony

By Cheryl Miller Contact All Articles 

The Recorder

November 26, 2012

  •    
  •    
  •    
  •      
 
Justice Ming Chin, California Supreme Court

Justice Ming Chin, California Supreme Court
Image: courtesy photo

SACRAMENTO — A Los Angeles trial judge did not abuse his discretion when he excluded an expert witness's "speculative" findings that a plaintiff lost up to a billion dollars in potential profits, the state Supreme Court ruled on Monday.

The unanimous ruling upheld a strong "gatekeeper" role for trial court judges in determining the reliability of experts' conclusions.

"We conclude that the trial court has the duty to act as a 'gatekeeper' to exclude speculative expert testimony," Justice Ming Chin wrote for the court. "Lost profits need not be proven with mathematical precision, but they must also not be unduly speculative."

The decision is a blow to dental implant developer Sargon Lazarof, who has pursued the University of Southern California in court for 13 years over its mishandling of a clinical trial. Lazarof's Sargon Enterprises contracted with USC's dentistry school in 1996 to conduct a five-year study of a new implant that promised to significantly shorten dental crown installations.

The business relationship soured when the school failed to produce a required annual report on the study. Other problems with the study quickly surfaced and in 1999 Sargon Enterprises sued for breach of contract. A jury awarded Lazarof's company $433,000. But Los Angeles County Superior Court Judge Terry Green rejected accountant James Skorheim's testimony that the botched study cost Sargon somewhere between $220 million and $1.18 billion in lost profits.

The Second District Court of Appeal sent the case back for retrial and, after an eight-day evidentiary hearing, Green once again excluded Skorheim's findings.

In October the case went before the state Supreme Court where former Stanford Law School Dean Kathleen Sullivan, representing USC, argued that Skorheim's potential-profit figures were not based in reality. Sargon attorney Eric George, son of the former chief justice of California, insisted the soundness of Skorheim's calculations was something a jury should weigh.

In its ruling Monday, the court found that Skorheim's assumption that Sargon, which had never posted an annual profit above $101,000, would have quickly snatched significant market share from the so-called Big Six dental implant makers with its new product was unfounded.

"If lost profits can be estimated with reasonable certainty, a court may not deny recovery merely because one cannot determine precisely what they would have been," Chin wrote for the court. "But exactitude is not the problem here. Whether the actual profits could logically be estimated in the manner Skorheim claimed is the problem. As the trial court noted, a lost profit award of up to $1 billion may not be based on pure speculation."



Subscribe to The Recorder

You must be signed in to comment on an article

Find similar content

Companies, agencies mentioned

    
  • Big Six
  • Second District Court
  • University of Southern California
  • Superior Court
  • Supreme Court

Most viewed stories

    
  1. Ninth Circuit Pooh-Poohs Coupons in HP Printer Case
    •      
  2. Facebook GC Is Leaving Company
    •      
  3. 'Cloud Company' in Spat With Porn Maker
    •      
  4. At Ninth Circuit, Moderates Do the Talking
    •      
  5. Brown Offers No New Money for Courts
    •      
lawjobs.com

TOP JOBS

MORE JOBS

POST A JOB

From the Law.com Network

3-D Printing: The Next Big Thing in IP Law?

Best Legal Departments 2013

News Corp. Hires Ex-Skadden Communications Chief Bush

Law Firm Leaders' Confidence Slipping, Says Survey

Contrite Companies Can Win Forgiveness in Bribery Cases
  •      
    • Subscription Required

Plaintiffs Want to See Toyota's 'Crown Jewels'
  •      
    • Subscription Required

CEIC: the Destination for Digital Investigation

Using Computer Forensics to Investigate IP Theft

Prolific ADA Plaintiff Faces Nemesis in Harassment Suit

Ullyot Exit Closes Chapter for Facebook
  •      
    • Subscription Required

Rothstein Bankruptcy Trustee Files New Reorganization Plan
  •      
    • Subscription Required

Fla. Bar Wants Disbarment for Former Judge
  •      
    • Subscription Required

Bar Candidate Quits N.Y. Job To Satisfy N.J. Practice Bylaw

Pro Bono Work Proposed as Condition for Bar Admission
  •      
    • Subscription Required

The Affordable State-Specific Practice Solution
Available in NY, NJ, PA and CT editions - research, draft and prepare even the most complex cases with ease.

Judge in Stop-and-Frisk Case Relishes Her Independence

Ground Is Shifting in 14-Year Litigation

High Court Names Evers as the FJD's Court Administrator
  •      
    • Subscription Required

Third Circuit Rules Against Citgo in Case Over Oil Spill

Law Schools Are Looking Beyond LSATs, Says Mich. Dean

Is Freezing Your Eggs the Solution?

Litigator of the Week: Who Needs a Jury Consultant?
  •      
    • Subscription Required

Sanction Reversed; Filing of Sexually Explicit Chat OKd
  •      
    • Subscription Required

DeKalb Judge Dismisses, Then Recuses

Jury Finds For Attorney In Legal-Mal Case
  •      
    • Subscription Required

Corporate Bribery Case Part Of National Trend
  •      
    • Subscription Required

Court Continues To Grant Lawyers Fraud Immunity
  •      
    • Subscription Required

  • About |
  • ALM Properties |
  • ALM Reprints |
  • Customer Support |
  • Privacy Policy |
  • Terms & Conditions |
  • ALM User License Agreement
ALM Media