Expert Report and Damages Theory Excluded Because Defendant Was Not on Notice of Damages Theory

On March 30, 2021, the First Department issued a decision in Advanced Aerofoil Tech. AG v. MissionPoint Capital Partners LLC, 2021 NY Slip Op. 01938, affirming the exclusion of expert reports and a damages theory because the defendant had not been put on notice of them or the evidence upon which they were based until receiving the expert reports in advance of trial, explaining:

Supreme Court providently exercised its inherent discretion, pursuant to CPLR 3101(d), by precluding the expert reports and lost profits damage theory, on the ground that plaintiff did not sufficiently place defendant on notice of damages tied to the termination of the long-term agreement with its customer until plaintiff served expert reports. Plaintiff failed to timely disclose the theory and failed to provide an adequate explanation for the delay. Contrary to plaintiff's contention, Supreme Court did not convert that motion into one for discovery sanctions or impose the sanction of dismissal by precluding this damages theory based on lack of notice.

(Internal quotations and citations omitted).