Can an expert really be disqualified by their own advocate?

The case involved a dispute between a retailer and the manufacturer. The plaintiff chose not to hire an economic expert, instead choosing to retain a CPA to submit a report in support of the claims of alleged economic damages. The plaintiff’s expert based her report upon multiple theories. The two initial alternative theories were (1) a before-after valuation approach designed to show the drop in value of the plaintiff’s business allegedly resulting from defendant’s actions and (2) a price-discrimination theory in which damages are calculated based on a comparison of actual and “but-for” price concessions.

All approaches used by the expert were replete with errors. The before-after points in time selected had nothing to do with the alleged beginning of the alleged conduct of the defendant. There was no attempt to isolate the effects of the alleged conduct of the defendant from other market forces easily observed in the industry. Zero effort was made to account for the increase in sales of other products as the sales force was shifted away from the subject product line.

Defendant’s expert economist submitted a report in response to plaintiff’s expert report, pointing out the many errors in the analysis. The plaintiff had paid the expert to prepare three reports and testify in two depositions. However, none of this expert’s work product succeeded in providing a reasonable measure of alleged economic damages. Furthermore, the expert did not offer any evidence of inappropriate conduct on the part of the defendant. After incurring considerable expense, the plaintiff chose not to use the expert at trial.