SOURCE: Marks Paneth & Shron LLP

Marks Paneth & Shron LLP

December 13, 2011 09:00 ET

Expert Witnesses Put Litigation at Risk by Using the Wrong Benchmarks to Calculate Damages, Says Specialist From Marks Paneth & Shron

Relying on Assumptions and Overlooking Business Reality Cause Expert Witness Testimony to Be Excluded on a Daubert Challenge, Adds Donald M. May of MP&S

NEW YORK, NY--(Marketwire - Dec 13, 2011) - Donald M. May, Ph.D., current director in the Litigation and Corporate Financial Advisory Group at Marks Paneth & Shron LLP, has published a commentary in the Marks Paneth & Shron Library examining the critical mistake expert witnesses often make that puts litigation at risk.

According to Dr. May, expert witnesses use the wrong benchmarks to calculate damages by making assumptions that don't stand up to scrutiny, which result in their testimony being excluded on a Daubert challenge.

In the commentary, Dr. May discusses:

  • Why benchmarking shouldn't be a "one size fits all" approach
  • The risks of relying on ex-ante benchmarks to set damages in cases involving lost profits and lost enterprise value
  • The impact of poorly conceived benchmarks in Celebrity Cruises v. Essef
  • The ways to improve success rates by adding a consulting expert to the litigation team

The full text of Dr. May's commentary, "Benchmarking: A Challenging Task for Expert Witnesses," can be found in the Marks Paneth & Shron Library.

To speak with Dr. May about benchmarking and expert witness testimony, please contact Katarina Wenk-Bodenmiller of Sommerfield Communications, Inc. at 212-255-8386 or via email at

About Marks Paneth & Shron LLP
Marks Paneth & Shron LLP is an accounting firm with nearly 475 people, of whom approximately 60 are partners and principals. The firm provides businesses with a full range of auditing, accounting, tax, consulting, bankruptcy and restructuring services as well as litigation and corporate financial advisory services to domestic and international clients. The firm also specializes in providing tax advisory and consulting for high-net-worth individuals and their families, as well as a wide range of services for international, real estate, media, entertainment, nonprofit, professional and financial services and energy clients. The firm has a strong track record supporting emerging growth companies, entrepreneurs, business owners and investors as they navigate the business life cycle.

The firm's subsidiary, Tailored Technologies, LLC, provides information technology consulting services. In addition, its membership in Morison International, a leading international association for independent business advisers, financial consulting and accounting firms, facilitates service delivery to clients throughout the United States and around the world. Marks Paneth & Shron LLP, whose origins date back to 1907, is the 30th largest firm in the nation and the 13th largest in the New York area. In addition, readers of the New York Law Journal rank MP&S as one of the area's top forensic accounting firms.

Its headquarters are in Manhattan. Additional offices are in Westchester, Long Island and the Cayman Islands. For more information, please visit

About Don May, Ph.D.
Donald M. May, Ph.D., is a Director in the Litigation and Corporate Financial Advisory Services Group at Marks Paneth & Shron LLP and a former professor at MIT's Sloan School of Management. Dr. May has prepared expert reports and expert witness testimony related to business valuation, hedge fund valuation, lost profits, lost enterprise value, time-series forecast models, asset and investment portfolio valuation and statistical forecasting models and methodologies. Marks Paneth & Shron's litigation support practice is consistently ranked among the top-three practices by readers of the New York Law Journal.

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