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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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