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Court erred in barring expert witness in decade-old software suit

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A trial court erred when it excluded the expert testimony of a witness who sought to address damages for a software company whose former employees allegedly violated non-compete clauses.

In the latest chapter of litigation dating to 2002, the Indiana Court of Appeals on Tuesday reversed the Porter Superior Court’s grant of a motion to exclude economic and business valuation testimony of an expert for the plaintiffs in Think Tank Software Development Corp. d/b/a Think Tank Networking Technologies Group, et al. v. Chester, Inc., Mike Heinhold, John Mario, Joel Parker, Thomas Guelinas, et al., 64A05-1205-PL-270.

Mike Heinhold, John Mario,Joel Parker, Thomas Guelinas and other former employees of Think Tank who years earlier went to work for Chester wanted to exclude the testimony of an expert whose qualifications and reliability of scientific principles were disputed. The trial court granted the motion.

In reversing, Senior Judge John Sharpnack wrote that once an expert’s scientific theories are determined to be reliable under Trial Rule 702, cross-examination is the means of exposing dissimilarities between actual evidence and an expert’s theories.

Sharpnack also clarified potential damages in the 17-page order. “Stated simply, four of Think Tank’s claims survived summary judgment: breach of a covenant not to compete, breach of a covenant of confidentiality, misappropriation of trade secrets, and tortious interference with contract. In Think Tank I, (64A03-1003-PL-172) we noted, ‘The proper measure of damages for breach of a covenant is the plaintiff’s lost net profits,’” Sharpnack wrote.

“Finally, to the extent that (the expert’s) profit erosion analysis is based solely on the departure from Think Tank of the defendant employees and their subsequent employment by Chester, the analysis may be inadmissible because the defendant employees were free to leave and become employees elsewhere. They committed no wrong, contractually or otherwise, against Think Tank merely by leaving,” the court said.




 

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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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