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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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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