Calculating economic damages in lost profits cases just got tougher...

At least in the state of MS....

In Webb v. Braswell,[NO. 2004-CA-01438-SCT] the Supreme Court of MS, which is a Daubert state, upheld the exclusion of a well known and established agricultural economist. While there was no attack on the economist qualifications, he was clearly very qualified, the Supreme Court agreed with the trial court that the lost profit calculations were unfounded.

One main issue, from the read of the court's opinion, was that unlike other cases where future lost pofit analyses were allowed, the individuals in this lawsuit had no track history of business success.

Specifically from the court's opinion:

'...In today's case, the testimony was proffered for one purpose, to show damages of lost profits as a result of unplanted crops. The Webbs brought this testimony forward without ever establishing that they were profitable.

Rather, the Webbs had been farming and operating at a loss in the years prior to the farming year which is the subject of this litigation. Therefore, the amount of damage allegedly resulting from the unplanted crops was not reasonably ascertainable based on the Webbs' past experience, as the rule requires. This being the case, any testimony to prove damage to the Webbs is tenuous at best and fails the reliability prong of the Daubert/McLemore test...."