Eric Forister, PhD, is an expert Economist with testifying experience on market definition, market power, and damages. His expertise includes applying advanced statistical techniques to datasets, synthesizing information from documents, and designing and evaluating surveys. A Senior Economist at Econ One, he focuses on relevant questions to tackle complex issues with an efficient and effective style of communication. Dr. Forister also has extensive experience consulting on issues including royalty rates, irreparable harm, sampling, survey design, common impact, and materiality.
Ideal Client Engagement: For litigation-related matters, an ideal engagement would be providing an opinion on economics, damages, market power, or market definition; or providing pre-litigation advice on the economics of potential claims, or the merits of a survey. For non-litigation matters, an ideal engagement would be helping to explain the economics of different business models or consulting to those considering buying or starting an optometry office.
Experience: Dr. Forister has acted in a support/consulting role on over 100 matters. His support work has been a mix of plaintiff and defense work. Dr. Forister has designed and evaluated surveys for IP and marketing cases and worked on a wide range of other matters, including:
Dennis M. Giuffré is an Economist and Professional Engineer in private practice since 1978, and previously with the consulting firms, Allstates Engineering Company and Equitable Environmental Health, Inc.
Background Experience: Prior to a consulting career, Mr. Giuffré engaged in basic subsurface research at Texaco, Inc., corporate planning and development at the Gulf Oil Corporation, process engineering and design at the Petro-Tex Chemical Corporation, and process engineering and economics at the Olin Corporation, among other companies.
Economic Damages Expert Services: Mr. Giuffré provides expert witness services primarily in the area of Economic Damages, and in related economics and technical issues. He has been engaged by both plaintiffs and defendants, and has testified as an expert witness in federal and state courts, and in arbitration and administrative hearings.
Mr. Giuffré has been retained as a damages analyst and expert in insurance claim losses, patent and other intellectual property infringement, trade secrets misappropriation, antitrust, breach of contract, deceptive trade practices, unfair competition, unconstitutional taking, products liability, negligence, breach of fiduciary duty, fraud, defamation, slander, trespass, legal malpractice, and numerous other causes of action pertaining to business entities; as well as in personal injury, wrongful death, medical malpractice, discrimination, retaliatory discharge, class action, and other causes of action pertaining to individuals and households.
Our analysis and research combined with unique presentation techniques have resulted in an unequaled track record in successful court cases and client recoveries. Our personnel are full time and fully focused on the services we provide. We thoughtfully incorporate technology into our work to provide great results at a more reasonable cost. Our expertise encompasses damages analysis, lost profit studies, business & intangible asset valuations, fraud investigations, statistics, forensic economic analysis royalty audits, strategic & market assessments, competitive surveys, personal injury and employment damages, and a wide range of other financial advisory services. We serve the entire nation.
Damage experts don’t always agree regarding the appropriate discount rate and underlying methodology for a lost earnings claim and certain commonly applied methods actually provide a windfall to Plaintiffs. The chosen rate can make a meaningful difference in the economic damages conclusion. A recent article, "Lost Compensation Settlement Tool Allows You To Assess Economic Damages Accurately And Efficiently, Under Various Scenarios", demonstrates the significance of the applied rate on damages.
The US Court of Appeals for the Ninth Circuit has opened the door significantly wider for those who wish to pursue qui tam False Claims Act suits by reversing a dismissal of two such matters. Ruling en banc in United States ex rel. Hartpence v. Kinetic Concepts, Inc., the Ninth Circuit has removed a prior restriction that any prior public disclosure must have originated from the whistleblower as well.
A recent case addressed the interesting question of whether a corporation could serve as an expert witness. The matter involved a breach of fiduciary duty case coordinated with an appraisal proceeding, in re Dole Food Company ("Dole"). The defendants designated Stifel, Nicolaus & Company, Incorporated ("Stifel"), a corporation, to serve as their expert witness regarding the value of Dole.
Royalty arrangements within patent licenses have long been constrained by an almost 50 year old Supreme Court decision in Brulotte v. Thys Co that prevents collection of royalties after a patent has expired. The Justices have now agreed to revisit the precedent set by that often-criticized ruling in a current case, Kimble v. Marvel Enterprises, Inc.
In a recent case involving the City of Pomona ("Pomona") v. SQM North America Corporation ("SQM"), Pomona alleged that SQM's importation of sodium nitrate for fertilizer caused a perchlorate contamination in the city. Although the district court excluded under Daubert the expert testimony of Pomona's expert witness on causation, the Ninth Circuit reversed the ruling, stating that "facts casting doubt on the credibility of an expert witness and contested facts regarding the strength of a particular scientific method are questions reserved for the fact finder". The case was remanded for trial.
In association with general cost cutting measures over recent years, many companies have pressured their vendors to reduce fees. This downward pressure has extended to the accounting firms hired to provide independent audit opinions, resulting in a significant drop in audit fees. According to Audit Analytics, audit fees in 2012 were $472 per $1 million of revenue, the lowest amount since 2004. The question is whether audit quality has been sacrificed in order to achieve these reductions.
The Eastern District of Texas is well known for its intense patent activity and already provides early disclosure of infringement and invalidity contentions to facilitate faster resolution of these cases. The Court has now taken similar action by providing an option for accelerated damage discovery, including requiring a two week turnaround between defendant's production of potentially infringing sales data and plaintiff's good faith estimate of damages. Accomplishing this will require expert assistance immediately in the process. Even for cases that do not settle, this damage estimate will inform the Court's discovery decisions and resource allocations.
In the course of affirming the district court's decision in Kraft Foods Group Brands LLC v. Cracker Barrel Old Country Store, Inc., 2013 WL 6017396, Judge Posner went a step further. While upholding the injunction, he ended his assessment with some comments "for future reference" when it comes to consumer surveys offered to demonstrate consumer confusion in support of a trademark infringement claim:
A recently affirmed decision to grant judgment for the defendant as a matter of law highlights the importance of expert testimony that is consistent with previously-disclosed opinions presented in a Rule 26 report. In Rembrandt Vision Technologies, Inc. v. Johnson & Johnson Vision Care, Inc., the expert's testimony was struck because of critical discrepancies, leaving the plaintiff with no basis for claimed patent infringement.
The decision in United States vs. Windsor (No. 12-301, June 26, 2013) by the U.S. Supreme Court (SCOTUS) to strike down Section 3 of the Defense of Marriage Act (DOMA) creates important tax issues and opportunities. These include potential refunds for same-sex married couples and their employers for years not closed by the statute of limitations.
A Delaware federal court recently closed the door on each of two possible paths to damages for Plaintiff in the matter of AVM Technologies, LLC v. Intel, Inc. (Civil Action No. 10-610-RGA). U.S. District Judge Richard G. Andrews granted Defendant's motion to exclude Plaintiff's expert, while also granting Defendant's motion in limine to preclude any proposed expert testimony from the inventor of the patent in question.
In re: Apple vs. Motorola, the parties sued each other for patent infringement involving smartphones. Seventh Circuit Judge Richard Posner, sitting by designation, threw out all damage witnesses for both parties on Daubert motions. Then, since both parties lacked damages testimony, he dismissed both cases with prejudice.
An extraordinary amount of time is incurred in discovery asking for records that may not even exist, or asking for records that do exist, but the other side declines to produce records that were not requested using just the right terms.
The following suggestions result from my experience serving as a witness, watching hundreds of other expert witnesses, and locating witnesses when servings as a confidential consultant. They are intended to help attorneys avoid common mistakes in selecting an expert witness.
Intellectual Property licensing is big business, and is getting bigger. But most licensors do not earn as much as they should because they fail to perform royalty audits allowed under their license agreements.
In many respects, the cross-examination of an expert witness is the same as for other witnesses. Some basics include: Be brief…Do not quarrel with the witness…Never ask a question to which you do not already know the answer…Avoid one question too many…and so on. However, there are some important differences
If you want to improve your chances of success, commit these ideas to stone. Then follow them religiously.1. Keep it simple This is the greatest commandment, and the one most frequently violated. Too much information in a visual aid will confuse rather than clarify. Creativity does not mean complication. To achieve your goal, invoke the following guidelines
Computers contain evidence useful in many human resource circumstances. Allegations of discrimination, sexual harassment, and unfair discharge are serious threats that are better understood by knowing what an employee did. Since computers are such a pervasive part of most employees' work lives, analysis of data stored on these computers helps address these issues
EJ Janik, CPA, CFF, CFE is a Certified Public Accountant with 37 years of professional experience. He specializes in financial audits, compilations and reviews, consulting for commercial litigation, antitrust matters, engineering and construction matters, real estate, and bankruptcy / business reorganizations matters. Mr. Janik holds a Master of Science in Accounting from Louisiana State University and a Bachelor of Commerce from Rice University. He is a member of the American Institute of Certified Public Accountants and the Texas Society of Certified Public Accountants.
Mr. Janik has provided over 150 financial audits and consulted in over 685 business disputes. He has provided expert testimony in over 80 matters including trial testimony in 48 trials or hearings in 8 states. Mr. Janik's accounting services include Damages/Lost Profit analysis, Forensic Accounting, Fraud Investigations, Fact Finding, Financial Analysis, and Expert Witness Testimony when necessary.
Debt & Capital Analyses
Mergers & Acquisitions
Royalties, Commissions, Income
White Collar Crimes
Mr. Janik is also uniquely qualified to measure construction claims and damages. With over 11 years of construction experience, he has accumulated over 13,000 Engineering and Construction (E&C) auditing hours, 10,000 E&C consulting hours, and 15,000 E&C supervised hours.
Salt Hill Statistical Consulting Alan Salzberg is Senior Statistician and Principal of Salt Hill. Dr. Salzberg's focus is statistical analysis, sampling, estimation, and modeling, especially using large or complex datasets. Many of Dr. Salzberg's consulting projects relate to the detection and measurement of bias or fraud. Dr. Salzberg has testified as an expert witness in statistics in multiple venues. Prior to joining Salt Hill, Alan was CEO at Analysis & Inference. He has also held positions at KPMG (in its Economic Consulting group) and at Morgan Stanley. Dr. Salzberg holds a Ph.D. in Statistics from the Wharton School of the University of Pennsylvania, where he also received a Bachelor of Science in Economics. For musings on everyday probability, see Dr. Salzberg's blog: "What are the chances?"