At what point in a breach of contract action for lost profits does an economic expert’s evidence become vulnerable to "gatekeeping," a form of reliability analysis performed by the trial judge to keep untrustworthy evidence from the jury? Normally, many contract disputes involve experts retained by each side. The battle between them is rarely viewed as one of unreliable evidence that will be precluded. Most persons likely assume that each side simply will pitch their case to the jury as best they can.
But not all contract issues are routine. Thus, for example, when an expert concludes that the seller’s market share would have grown substantially but for the breach of contract, or perhaps, that the seller’s profits would have increased steadily over 10 years, how is the economic expert’s reliability index to be measured? When does the evidence the expert offers go from mundane to profane?
