Submitted: June 27, 2017
Defendant's Motion for Partial Summary Judgment, DENIED.
J. Zuiderweg, Esquire (pro hac vice), Law Offices of Barry K.
Rothman, Los Angeles, California, Nicholas G. Kondraschow,
Esquire (argued), Rhodunda & Williams, Wilmington,
Delaware, Attorneys for Plaintiff.
A. Holleman, Esquire, Robert E. Murkowski, Esquire, Miller,
Canfield, Paddock and Stone, PLC, Detroit, Michigan, John A.
Sensing, Esquire (argued), Potter Anderson & Corroon LLP,
Attorneys for Defendant, Tullow Inc.
MEMORANDUM OPINION AND ORDER
R. Wallace, Judge.
the Court is Defendant Tullow, Inc.'s d/b/a Appostrophic
("Tullow") Motion for Partial Summary Judgment of
Count I of Plaintiff Hasan Khushaim's
("Khushaim") Complaint. In January 2013, Khushaim
hired Tullow to design and build certain mobile applications.
Tullow was to be paid in four installments totaling $75, 000.
The parties memorialized the terms of their agreement in a
"Project Development Contract" dated January 29,
2013. Khushaim complains that Tullow breached this contract
by failing to deliver the completed mobile applications.
Among other things, Khushaim's breach-of-contract claim
alleges future lost profits. Tullow maintains that Khushaim
has failed to submit any admissible evidence in support of
that damages claim and that partial summary judgment is
warranted. For the reasons set forth below, Tullow's
Motion is DENIED.
Factual and Procedural Background
Khushaim brought this action against Defendant Tullow in a
ten-count complaint. Tullow filed a dismissal motion, which
this Court granted in part and denied in part. Count I, alleging
breach of contract, is the only surviving
claim. Tullow now asks for partial summary
judgment on that remaining claim.
January 2013, Khushaim, a citizen of Saudi Arabia, and
Tullow, a Delaware corporation, entered into a Project
Development Contract ("the
Contract"). The Contract provided that Tullow would
"design, develop, and implement" mobile
applications adapting two Arabic card games ("Trix"
and "Belote") for mobile use.The Contract had a
completion period of 250 days and specified a schedule of
four payments of $18, 750.00, for a total anticipated
contract value of $75, 000. The Contract included a Delaware
says he made the first three payments, but not the fourth and
final because the Contract's fourth phase,
"Deployment, " never occurred. Khushaim says
further that in addition to the first three regular
installments, he paid Tullow a supplement of $20, 000 in May
2013 for upgrades to the programs. Khushaim claims he never
received the final versions of the two mobile applications
and that he has been unable to "obtain the return of his
copyrighted software designs."
alleges that "as a result of Tullow's failure to
complete development of the mobile applications for Trix and
Belote, Khushaim lost subscription sales for the two games,
which would have totaled $27, 000,
000.00." Tullow filed this Motion for Partial
Summary Judgment to limit Khushaim's damages for the
breach-of-contract claim to $75, 000.
Court heard oral argument on this Motion and addressed
Khushaim's lack of evidence to support his surviving
claim of $27 million in lost profits. The
speculative nature of the alleged $27 million in future lost
profits was discussed previously during oral argument on an
earlier motion to dismiss. Again, at the time of this
Motion, the Court was concerned that Khushaim had still
failed to offer any evidence to support a "reasonable
certainty... of potential lost profits." Khushaim had
also failed to submit a responsive affidavit pursuant to
Superior Court Civil Rule 56(f).
no scheduling order preceded this Motion, and because
Khushaim appeared to have anticipated being able to produce
evidence to support his claim, the Court granted limited
discovery on the particular issue of the $27 million in lost
future profits. The Court allowed the parties 120 days
to conduct discovery and 30 days from the close of that
discovery to submit supplemental briefs.
parties recently submitted those supplemental briefs.
Khushaim attached exhibits he suggests support his $27
million future lost profits claim. These exhibits include:
(1) Tullow's Interrogatories and Requests for Production;
(2) a record of payment to another software development
company; (3) a market research report from the digital
marketing agency MKT Indeed (the "MKT report"); (4)
the resume of Khushaim's proposed expert, Dr. Michael
Einhorn; (5) Dr. Einhorn's Expert Report; (6)
Khushaim's Interrogatories and Requests for Production;
and (7) the Project Development Contract.
argues that Khushaim "fails to support his claim for
lost profits with any admissible
evidence." Tullow specifically disputes the
qualifications of Khushaim's expert and the
reliability of the MKT report. As such, Tullow requests that
the Court grant partial summary judgment in its
entirety of Tullow's argument rests on the alleged
inadmissibility of Khushaim's proposed lost profit
valuation evidence. But its request that the Court determine
the admissibility of Khushaim's evidence comes too soon
and is far too cursory. True, the Court should consider only
"admissible evidence in deciding a motion for summary
judgment." And for an expert and his report to be
admitted into evidence, the proponent of the proffered expert
testimony eventually bears the burden of establishing the
testimony's relevance, reliability, and admissibility by
a preponderance of the evidence.
Rule of Evidence 702 governs the admissibility of such expert
testimony. And Rule 702 provides that "a witness
qualified as an expert by knowledge, skill, experience,
training or education may testify thereto in the form of an
opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, ...