Balakrishnan v. TTEC Digital LLC

OCR transcription for search; preserved printed pages are authoritative

Case No. 1:23-cv-01204-CNS-NRN Document i181 __ filed 02/06/25 USDC Colorado
pg 1 of 15

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 1:23-cv-01204-CNS-NRN
DILIP BALAKRISHNAN,
Plaintiff,
V.

TTEC DIGITAL LLC, a Colorado limited liability company,

Defendant.

ORDER

There are two pending Federal Rule of Evidence 702 motions before the Court.
The first is Defendant and Counterclaim Plaintiff TTEC Digital LLC’s motion to exclude
the expert testimony of Allen E. Jacque, Mr. Balakrishnan’s damages expert. ECF No.
130. The second is Plaintiff and Counterclaim Defendant Dilip Balakrishnan’s motion to
exclude the opinions of Sanjai Bhagat, TTEC’s rebuttal damages expert. ECF No. 132.
For the reasons explained below, the Court denies the competing expert motions.

I. FACTUAL BACKGROUND

This case arises from the parties’ execution of a February 7, 2020 Stock Purchase
Agreement (SPA). ECF No. 150, | 84; ECF No. 151-35 (SPA). In executing the SPA,
TTEC acquired 70% of Serendebyte Inc., the company Mr. Balakrishnan founded. ECF
No. 150, § 25. Mr. Balakrishnan contends that he sold 70% of his company to TTEC after

TTEC represented that it could provide Serendebyte access to TTEC’s large enterprise

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

1

2
customers, 	and 	that 	Serendebyte 	could 	leverage 	TTEC’s 	sales 	teams 	to 	sell
Serendebyte’s services. ECF No. 159 (Mr. Balakrishnan’s statements of additional
disputed facts), ¶ 6. Mr. Balakrishnan, however, argues that TTEC lacked the capacity to
promote and sell Serendebyte, causing Serendebyte’s revenue to plummet. Id., ¶¶ 15–
18. On May 8, 2023, Mr. Balakrishnan’s counsel sent TTEC a litigation settlement
demand, stating that
Mr. 	Balakrishnan 	believes 	that 	TTEC 	has 	failed 	and/or
refused to perform its obligations under the SPA in good faith,
which has impeded the Company’s ability to maximize the
Aggregate 	Buyout 	Consideration 	Amount 	(“ABCA”). 	The
ABCA provides the basis for the Rollover Shareholders’
realization of a reasonable return upon their exercise of the
Option. The ability to obtain a reasonable return was one of
the foundational factors on which Mr. Balakrishnan and the
Company decided to enter into the Transaction. Moreover,
TTEC’s failure to perform its obligations, and its refusal to
provide 	any 	meaningful 	support 	in 	furtherance 	of 	the
Company’s growth, raise serious concerns regarding whether
the Transaction was entered into by TTEC in good faith.
ECF No. 150, ¶ 100; ECF No. 47-2 (letter from Jayaram Law to TTEC). It does not appear
that TTEC responded to Mr. Balakrishnan’s letter prior to Mr. Balakrishnan filing suit on
May 12, 2023—five days after Mr. Balakrishnan’s counsel sent the litigation settlement
demand.
After filing this lawsuit in May 2023, Mr. Balakrishnan attempted to sell the
remaining 30% of Serendebyte to TTEC on December 8, 2023. ECF No. 150, ¶ 110; ECF
No. 150-63 (Put Option letter signed by Mr. Balakrishnan). The SPA permitted Mr.
Balakrishnan, on behalf of Serendebyte’s rolling shareholders (including himself), to sell
the remaining 30% during the period of January 31, 2023, to December 31, 2023, which
Case No. 1:23-cv-01204-CNS-NRN Document 181 filed 02/06/25 USDC Colorado
pg 2 of 15

3
the SPA defines as the “Put Option.” ECF No. 151-35 at 46 (§ 8.02). The buyout price for
the remaining 30% of Serendebyte was based on Serendebyte’s financial performance
over the previous three-year period. Id. at 2 (defining pre-agreed formula).
Mr. Balakrishnan’s exercise notice calculated the remaining 30% of the shares at
$300,000. ECF No. 150-63 at 1. Mr. Balakrishnan identified the Put Purchase date as
February 6, 2024. Id. TTEC agreed to process the Put Option request, provided that Mr.
Balakrishnan complied with his obligations under §§ 8.02 and 8.04. According to TTEC,
these obligations include signing a full release of all claims against TTEC, including this
lawsuit. ECF No. 150, ¶ 112; ECF No. 150-64 (TTEC’s response to Mr. Balakrishnan’s
Put Option letter). Mr. Balakrishnan refused, claiming that §§ 8.02 and 8.04 do not require
a release for the Put Option to be exercised. ECF No. 159, ¶ 112; ECF No. 150-65 (Put
Option reply letter).
II. 	PROCEDURAL BACKGROUND
As noted, Mr. Balakrishnan initiated this lawsuit on May 12, 2023. ECF No. 1. He
alleged that TTEC breached its implied obligation under the SPA to support Serendebyte,
and that TTEC fraudulently induced him to execute the SPA by falsely representing that
it could and would support Serendebyte after the 70% acquisition. See generally id.; ECF
No. 47 (Am. Compl.).
On November 16, 2023, after hearing argument, the Court dismissed without
prejudice Mr. Balakrishnan’s claims of breach of the implied duty of good faith and fair
dealing, unjust enrichment, and negligent misrepresentation, but it permitted him to
proceed with his fraudulent inducement claim. ECF No. 44. Mr. Balakrishnan filed his
Case No. 1:23-cv-01204-CNS-NRN Document 181 filed 02/06/25 USDC Colorado
pg 3 of 15

4
Amended Complaint shortly thereafter, maintaining his fraudulent inducement claim and
adding a breach of indemnification claim pursuant to the terms of the SPA. ECF No. 47.
Since Mr. Balakrishnan exercised the Put Option on December 8, 2023—seven
months after filing his lawsuit—the parties have engaged in back-and-forth arguments
concerning the purported release. ECF No. 150, ¶¶ 36–47 (setting forth purported
undisputed facts concerning the release provisions); ECF No. 159 (denying the facts in
¶¶ 36–47). Having reached an impasse, on January 30, 2024, TTEC filed an Amended
Answer to Mr. Balakrishnan’s Amended Complaint, and at the same time, filed two
counterclaims. ECF No. 67. TTEC first seeks a declaratory judgment that the SPA
requires Mr. Balakrishnan to “execute a full release” of his claims. Id., ¶¶ 77–96. TTEC’s
second claim for breach of contract seeks specific performance of the SPA (i.e., requiring
Mr. Balakrishnan to execute a full release of all claims including the instant action). Id.,
¶¶ 97–124.
The same day it filed its counterclaims, TTEC filed a motion for declaratory
judgment and motion for specific performance. ECF Nos. 68, 70. Shortly after TTEC filed
its 	motions, 	on 	February 	13, 	2024, 	Mr. 	Balakrishnan 	moved 	to 	dismiss 	TTEC’s
counterclaims. ECF No. 77. Although there were others, the central issue before the Court
in those motions was whether the SPA requires Mr. Balakrishnan to sign a full release of
all claims prior to executing the Put Option.
Beginning with TTEC’s motions, TTEC sought a declaration that Mr. Balakrishnan
triggered an obligation to execute a release pursuant to § 8.02 of the SPA. ECF No. 68
at 7. TTEC asserted nearly identical arguments in its motion for specific performance—
Case No. 1:23-cv-01204-CNS-NRN Document 181 filed 02/06/25 USDC Colorado
pg 4 of 15

5
asking the Court to order Mr. Balakrishnan to execute a full release of his claims. ECF
No. 70. The Court denied both motions for the same reason: it determined that “release,”
as used in the SPA, is ambiguous. ECF No. 99 (order) at 11–12. To start, the SPA fails
to identify any of the essential terms typically found in broad, enforceable releases (e.g.,
identifying the releasing and released parties, the timeframe of the release, and the scope
of the release or claims being released). Id. Instead, the SPA requires Mr. Balakrishnan
to deliver “an executed release in the form of Schedule 8.04”—a schedule which does not
exist. Id. The Court went on to note that, at that stage, TTEC failed to provide any
evidence of what the parties intended when they used the term release in the SPA, much
less that it unequivocally meant “a full, final release” as TTEC contends. Id. (finding that,
“[h]ad the parties, each sophisticated and represented by counsel, intended ‘release’ to
mean ‘full release’ or ‘complete release’ in the SPA, they could have said so”).
Turning to Mr. Balakrishnan’s motion to dismiss, ECF No. 77, the Court first
dismissed without prejudice TTEC’s declaratory judgment claim as duplicative of its
breach of contract claim. ECF No. 99. However, the Court declined to dismiss TTEC’s
breach of contract claim. Mr. Balakrishnan argued that TTEC’s breach of contract claim
was subject to dismissal because § 8.04 of the SPA is unenforceable as indefinite, and
TTEC failed to sufficiently plead that it was damaged by the alleged breach. ECF No. 77
at 7–10. The Court explained that, based on the record before it, it could not conclude as
a matter of law that “release,” as used in the SPA, is indefinite. ECF No. 99 at 15–16. In
a footnote, however, the Court noted that Mr. Balakrishnan asked for the opportunity to
“elicit 	evidence—such 	[as] 	communications 	between 	Mr. 	Balakrishnan 	and 	TTEC,
Case No. 1:23-cv-01204-CNS-NRN Document 181 filed 02/06/25 USDC Colorado
pg 5 of 15

6
communications internal to TTEC, and other evidence of the Parties’ intent—showing that
the Parties never agreed on the terms of a release under Section 8.04.” Id. at 15 n.5
(quoting ECF No. 81 at 14–16).
Finally, on August 23, 2024, TTEC moved for summary judgment on each
remaining claim in this lawsuit. ECF No. 150. The Court granted in part and denied in part
TTEC’s motion. ECF No. 177. The Court first determined that Delaware’s three-year
statute of limitations barred Mr. Balakrishnan’s fraudulent inducement claim. Id. at 7–13.
The Court then denied the remainder of TTEC’s motion, finding that genuine disputes of
material fact made summary judgment inappropriate. Id. at 14–19.
III. 	LEGAL STANDARDS
Rule 702 of the Federal Rules of Evidence, which governs the testimony of expert
witnesses, provides that a
witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if the proponent demonstrates to the
court that it is more likely than not that: (a) the expert’s
scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a
fact in issue; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable principles and
methods; and (d) the expert’s opinion reflects a reliable
application of the principles and methods to the facts of the
case.
Fed. R. Evid. 702 (as amended on Dec. 1, 2023). Where, as here, a party challenges the
admissibility of an expert witness, Rule “702 imposes upon the trial judge an important
gate-keeping function with regard to the admissibility of expert opinions.” Mathis v. Huff
Case No. 1:23-cv-01204-CNS-NRN Document 181 filed 02/06/25 USDC Colorado
pg 6 of 15

7
& Puff Trucking, Inc., 787 F.3d 1297, 1307 (10th Cir. 2015) (citation and quotation
omitted). The proponent of expert testimony bears the burden—by a preponderance of
evidence—of showing admissibility. Fed. R. Evid. 702; United States v. Nacchio, 555 F.3d
1234, 1241 (10th Cir. 2009).
To evaluate admissibility, the Court engages in a “two-step analysis.” Roe v. FCA
US LLC, 42 F.4th 1175, 1180 (10th Cir. 2022). First, the Court must decide whether the
proffered expert is qualified “by knowledge, skill, experience, training, or education” to
render the opinion. Fed. R. Evid. 702; see also Roe, 42 F.4th at 1180. Second, if the
expert is sufficiently qualified, the Court must determine whether the proffered opinions
are 	reliable. Roe, 	42 F.4th at 1180–81. “The 	reliability 	inquiry asks 	whether the
methodology employed by an expert is valid—that is, whether it is based on sufficient
data, sound methods, and the facts of the case.” Id. at 1181 (citing Kumho Tire Co., Ltd.
v. Carmichael, 526 U.S. 137, 152 (1999)). The Court also evaluates whether the expert
reliably applied the methodology to the facts of the case. Id.
Experience alone may provide a sufficient foundation for expert testimony, but a
witness relying solely on experience must “explain how that experience leads to the
conclusion reached, why that experience is a sufficient basis for the opinion, and how that
experience is reliably applied to the facts.” Fed. R. Evid. 702 advisory committee’s notes
to 2000 amendment. The Court’s “gatekeeping function requires more than simply taking
the expert’s word for it.” Id. (citation and quotation omitted).
But the Court’s role as a gatekeeper under Daubert “is not intended to serve as a
replacement for the adversary system.” Id. (quoting United States v. 14.38 Acres of Land
Case No. 1:23-cv-01204-CNS-NRN Document 181 filed 02/06/25 USDC Colorado
pg 7 of 15

8
Situated in Leflore Cnty., Miss., 80 F.3d 1074, 1078 (5th Cir. 1996)). Rather, “[v]igorous
cross-examination, presentation of contrary evidence, and careful instruction on burden
of proof are the traditional and appropriate means of attacking shaky but admissible
evidence.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993)
The Court has substantial discretion to determine “how to perform its gatekeeping
function under Daubert.” Bill Barrett Corp. v. YMC Royalty Co., LP, 918 F.3d 760, 770
(10th Cir. 2019) (emphasis in original); see also Roe, 42 F.4th at 1180. That is especially
true, where, as here, the trial is to the Court. The Tenth Circuit has held that “a judge
conducting a bench trial maintains greater leeway in admitting questionable evidence,
weighing its persuasive value upon presentation” at trial. Att’y Gen. of Oklahoma v. Tyson
Foods, Inc., 565 F.3d 769, 780 (10th Cir. 2009) (rejecting Oklahoma’s argument that the
“district court committed a ‘legal impossibility’ in both admitting the [expert] testimony and
subsequently finding it unreliable” (quoting Aplt. Br. at 45)); see also In re Salem, 465
F.3d 767, 777 (7th Cir. 2006) (“That is not to say that the scientific reliability requirement
is lessened in such situations; the point is only that the court can hear the evidence and
make its reliability determination during, rather than in advance of, trial. Thus, where the
factfinder and the gatekeeper are the same, the court does not err in admitting the
evidence subject to the ability later to exclude it or disregard it if it turns out not to meet
the standard of reliability established by Rule 702.”).
Case No. 1:23-cv-01204-CNS-NRN Document 181 filed 02/06/25 USDC Colorado
pg 8 of 15

9
IV. 	ANALYSIS & ORDER
A. 	TTEC’s Motion to Exclude Allen Jacque (ECF No. 130)
Mr. Balakrishan retained Mr. Jacque to evaluate the damages he incurred as a
result of TTEC’s alleged refusal to support Serendebyte’s growth and active hinderance
of its growth to artificially deflate Serendebyte’s value. See ECF No. 130-1 (Jacque
Report). Mr. Jacque is a Chartered Financial Analyst and Certified Fraud Examiner. Id. at
20 (Jacque CV, attached to Jacque Report as App’x A). He holds a bachelor’s degree in
economics and finance from the University of Wisconsin and a master’s degree in applied
economics from Marquette University. Id.
Mr. Jacque provides a single damages opinion:
Mr. Balakrishnan has incurred damages of between $3.75
million and $15.0 million due to his reliance on the false or
reckless promises of TTEC. The $3.75 million reflects a
buyout offer from Mr. Balakrishnan to TTEC on January 4,
2023 for the remaining 30% share of Serendebyte. This offer
was rebuffed by TTEC. The $15.0 million represents the
maximum amount TTEC would ever have had to pay for the
remaining 30% share of Serendebyte.
Id. at 2. TTEC moves to exclude this opinion on the following five grounds: (1) Mr. Jacque
is not qualified to give an expert opinion on “depressed EBITDA” or “lost sponsorship”;
(2) his opinion is not based on specialized knowledge that will assist the trier of fact; (3)
his testimony is not based on sufficient facts or data; (4) his testimony is not the product
of reliable economic principles or methodologies; and (5) his opinion does not reflect a
reliable application of economic methods to the facts in this case. ECF No. 130.
Case No. 1:23-cv-01204-CNS-NRN Document 181 filed 02/06/25 USDC Colorado
pg 9 of 15

10
Because the parties will try this case to the Court, the Court will defer its Daubert
analysis until it hears the evidence at trial. 1 See Tyson Foods, 565 F.3d at 779 (“[A] judge
conducting a bench trial maintains greater leeway in admitting questionable evidence,
weighing its persuasive value upon presentation.”); ORP Surgical, LLP v. Howmedica
Osteonics Corp, No. 1:20-CV-01450-RBJ, 2021 WL 5280192, at *5–6 (D. Colo. Nov. 12,
2021) (denying motion to exclude without prejudice to the defendant’s right to request a
hearing during the bench trial); Mountain v. United States, No. 19-CV-005-J, 2020 WL
8571674, at *2 (D. Wyo. Sept. 11, 2020) (“[T]rial courts conducting bench trials have the
flexibility to admit proffered expert testimony and to then decide during trial whether the
evidence meets the requirements of Daubert and Rule 702. . . . The trial judge is fully
capable of sorting the wheat from the chaff at trial.”); Travelers Prop. Cas. Co. of Am. v.
Barkley, No. 16-61768-CIV, 2017 WL 4867012, at *1 (S.D. Fla. June 2, 2017) (summarily
denying Daubert motion filed in advance of a bench trial).
The Court, however, will offer two preliminary observations on Mr. Jacque’s
opinion for the parties’ consideration. The first is that Mr. Jacque’s testimony appears to
be run-of-the-mill damages testimony. Mr. Balakrishan asked him to opine on his
damages had TTEC fulfilled its alleged contractual obligations. ECF No. 130-1 at 1. There
is nothing exceptional about that purported testimony. The second observation is more
nuanced.
1 When parties move to exclude expert testimony under Federal Rule of Evidence 702, the parties are
entitled to an evidentiary hearing before the witness may testify. Here, neither party requested an
evidentiary hearing. ECF No. 130 at 2; ECF No. 140 at 15. The Court will not consider testimony that Mr.
Jacque is not qualified to give or is otherwise irrelevant or unreliable within the meaning of Rule 702. See
Tyson Foods, 565 F.3d at 779 (permitting trial court to admit questionable expert evidence but clarifying
that “Daubert’s standards must still be met”). The same is true for TTEC’s rebuttal expert, Dr. Bhagat.
Case No. 1:23-cv-01204-CNS-NRN Document 181 filed 02/06/25 USDC Colorado
pg 10 of 15

11
Mr. Balakrishnan has one remaining claim: breach of the SPA’s indemnification
provision. See ECF No. 151-35 (SPA, Article VII - Indemnification). The parties agree, as
they must, that the SPA limits damages under the indemnification provision. For example,
Section 7.05(g) provides that, “[i]n no event shall any Indemnifying Party be liable to any
Indemnified Party for any punitive, incidental, consequential, special or indirect damages,
including loss of future revenue or income, loss of business reputation or opportunity
relating to the breach or alleged breach of this Agreement, or diminution of value or any
damages based on any type of multiple.” Id. at 42 (emphasis added). And Section 7.07(e)
expressly prohibits “special losses”: “No party will in any event be liable to any other
Person for any consequential [or] indirect . . . damages of such other Person, including
without limitation loss of future revenue, income, or profits, diminution of value, . . . except
(i) if paid or payable to a third party, or (ii) in connection with any Fraud on the part of a
Shareholder Party or the Company in connection with the Transactions.” Id. at 44
(emphasis added). Mr. Balakrishnan argues that the Aggregate Buyout Consideration
Amount 2 is not a form of consequential damages; it is a form of compensatory damages
that the SPA recognizes. 3 ECF No. 140 at 15. He points to eCommerce Indus., Inc. v.
MWA Intel., Inc., which held that “lost profits are not considered consequential damages
2 The SPA defines Aggregate Buyout Consideration Amount as the “amount equal to: (a) the product
determined by multiplying (i) L TM EBITDA as set forth on the most recently available financial statement,
.l2y (ii) 4.0 and then (b) multiplying the product of (i) and (ii) by thirty percent (30%); provided however
that in no event shall Aggregate Buyout Consideration exceed $15,000,000. For illustrative purposes only,
if LTM EBlTDA is $10,000,000, then Aggregate Buyout Consideration is $12,000,000 (i.e, 4.0 x $10,000,000
x 30.0% == $12,000,000.” ECF No. 151-35 at 2 (emphasis in SPA).
3 He also argues that this provision does not apply to his fraud claim. ECF No. 140 at 15. The Court need
not address that argument because the Court has since granted summary judgment in TTEC’s favor on Mr.
Balakrishnan’s fraudulent inducement claim. See ECF No. 177.
Case No. 1:23-cv-01204-CNS-NRN Document 181 filed 02/06/25 USDC Colorado
pg 11 of 15

12
when ‘profits are precisely what the non-breaching party bargained for, and only an award
of damages equal to lost profits will put the non-breaching party in the same position he
would have occupied had the contract been performed.’” No. CV 7471-VCP, 2013 WL
5621678, at *47 (Del. Ch. Sept. 30, 2013) (quoting Tractebel Energy Mktg., Inc. v. AEP
Power Mktg., Inc., 487 F.3d 89, 110 (2d Cir. 2007)). The Court will determine whether Mr.
Balakrishnan’s purported damages (or what portions of his purported damages) are
recognized under the SPA after hearing evidence at trial. It will then determine whether
Mr. Jacque’s opinion supports the recognized damages, if any.
TTEC’s motion to exclude Mr. Jacque is denied at this time.
B. 	Mr. Balakrishnan’s Motion to Exclude Dr. Sanjai Bhagat (ECF No. 132)
TTEC retained Dr. Bhagat as a damages rebuttal expert to Mr. Jacque. ECF No.
132-2 (Bhagat Report). Dr. Bhagat is a Provost Professor of Finance at the Leeds School
of Business, University of Colorado at Boulder. Id. at 17 (App’x A). He also has held
teaching stints as a Visiting Professor of Economics at Princeton University and a Visiting
Associate Professor of Finance at the University of Chicago. Id. He holds a master’s
degree in applied economics and a Ph.D. in finance. Id.
Dr. Bhagat provides three opinions. First, he opines that the “Aggregate Buyout
Consideration Amount (related to Section 8.02 in the [SPA]) is $0 (zero dollars), and not
any of the amounts in Mr. Allen Jacque’s report.” Id. at 3. He explains that, given that
Serendebyte’s actual last twelve months (LTM) EBITDA in the fourth quarter of 2023 was
negative $197,584, and because the Aggregate Buyout Consideration Amount under §
8.02 of the SPA is Serendebyte’s LTM EBITDA multiplied by 4.0 multiplied by 30, the
Case No. 1:23-cv-01204-CNS-NRN Document 181 filed 02/06/25 USDC Colorado
pg 12 of 15

13
correct Aggregate Buyout Consideration Amount (and therefore Mr. Balakrishnan’s
damages) is $0. Id. at 3–4, 6–12. Second, Dr. Bhagat opines that Mr. Balakrishnan’s
“allegation that subsequent to TTEC’s acquisition of Serendebyte, TTEC failed to provide
Serendebyte with opportunities for revenue growth, is logically inconsistent with the
fundamental paradigm in corporate finance.” Id. at 4. And third, he opines that Mr.
Balakrishnan 	“never 	followed, 	and 	admits 	to 	not 	following, 	the 	dispute 	resolution
mechanism detailed in the SPA.” Id.
Mr. Balakrishan moves to exclude Dr. Bhagat’s first opinion on the grounds that it
unreliable, unsupported by the evidence, and is not helpful to the Court. ECF No. 132 at
6–10; ECF No. 152 at 2. He then moves to exclude Dr. Bhagat’s second and third opinions
on the grounds that they are improper rebuttal opinions, irrelevant, and improperly usurps
the Court’s role as factfinder and interpreter of the law. ECF No. 132 at 11–15.
Like TTEC’s motion to exclude Mr. Jacque, the Court will defer its Daubert analysis
until it hears the evidence at trial—particularly Mr. Jacque’s testimony. See Tyson Foods,
565 F.3d at 779; ORP Surgical, 2021 WL 5280192, at *5–6. Also like above, the Court
provides two initial impressions of Dr. Bhagat’s opinions to assist the parties in their trial
preparation.
First, if the Court permits Mr. Jacque to testify, it very likely will find Dr. Bhagat’s
first opinion relevant and helpful. Mr. Balakrishan’s argument that his opinion should be
excluded because he relied on actual facts rather than the opposing side’s assumptions
is unpersuasive. True, economic experts may assume liability in calculating damages.
See BC Tech., Inc. v. Ensil Int’l Corp., 464 F. App’x 689, 704 (10th Cir. 2012) (“The
Case No. 1:23-cv-01204-CNS-NRN Document 181 filed 02/06/25 USDC Colorado
pg 13 of 15

14
assumptions were certainly subject to debate but had sufficient evidentiary support to
pass the admissibility threshold.”); Aspen Highlands Skiing Corp. v. Aspen Skiing Co.,
738 F.2d 1509, 1526 (10th Cir. 1984) (“If the calculations upon which the loss of profits
are based are estimated in any reasonable way and the underlying assumptions on which
the [expert] relied are not without support in the record, the calculations may be upheld
as a valid means of measuring loss of profits.” (citation and quotation omitted)), aff’d, 472
U.S. 585 (1985); see also Orthoflex, Inc. v. ThermoTek, Inc., 986 F. Supp. 2d 776, 792
(N.D. Tex. 2013) (“Experts are permitted to assume the fact of liability and opine about
the extent of damages.”); U.S. Gypsum Co. v. Lafarge N. Am. Inc., 670 F. Supp. 2d 737,
741 (N.D. Ill. 2009) (“[Witness] is an expert on damages, not liability, and she seeks to
opine only on what the damages should be if the jury separately finds the facts she
assumes to be true.”). But Mr. Balakrishan does not cite any authority requiring exclusion
of a rebuttal expert where the expert relied on actual, as opposed to the affirmative
expert’s assumed, facts. 4
4 Mr. Balakrishan cites Nephron Pharms. Corp. v. Hulsey for the first time in his reply. There, the court
explained in a footnote that
[i]t is baffling to the Court that Defendants would put forth a rebuttal expert
who simply opines that there are no damages because, in his opinion,
there is no liability. This opinion offers no insight into Distler’s methods, is
not helpful to the finder of fact, and simply serves to mislead the jury on
the issues of liability in this case. The Court is also not amused by
Defendants’ contention that because Distler assumes liability for the
purposes of calculating damages, Wiggins is equally justified in assuming
no liability to offer his damages opinion.
No. 618CV1573ORL31LRH, 2021 WL 1110907, at *2 n.2 (M.D. Fla. Jan. 11, 2021). Unlike the expert in
Nephron, Dr. Bhagat provides a detailed analysis as to why he determined that the Aggregate Buyout
Consideration Amount is $0. See ECF No. 132-2 at 6–12. The Court thus finds Nephron distinguishable
and unsupportive of Mr. Balakrishan’s argument.
Case No. 1:23-cv-01204-CNS-NRN Document 181 filed 02/06/25 USDC Colorado
pg 14 of 15

Case No. 1:23-cv-01204-CNS-NRN Document i181 __ filed 02/06/25 USDC Colorado
pg 15 of 15

Second, although the Court will not exclude Dr. Bhagat’s second and third opinions
at this time, the Court is somewhat persuaded by Mr. Balakrishan’s arguments that these
opinions go beyond the scope of Mr. Jacque’s opinions. This, of course, will depend on
what testimony, if any, Mr. Jacque is permitted to provide at trial. The Court will withhold
its ruling on this issue for now, but the Court expects Dr. Bhagat’s testimony to rebut
actual testimony and not merely further TTEC’s affirmative claims.

V. CONCLUSION

Consistent with the above analysis, the Court DENIES the parties’ motions to

exclude expert testimony. ECF Nos. 130, 132.

DATED this 6th day of February 2025.

BY THE COURT:

15