Economic Experts (EE) provides economic consulting and litgation support in complex legal cases. One of EE's current clients, USClient, had a contract with ForeignCO to design and build a plant for ForeignCO. Before the plant was completed (and before ForeignCO made any payments to USClient), ForeignCO notified USClient that it was canceling the contract. USClient filed a lawsuit claiming that ForeignCO breached the contract and as a result of this contract breach USClient was claiming damages of $220 million. These damages consist of $170 million of out-of-pocket expenses that USClient spent designing and building the ForeignCO plant and $50 million of fixed overhead that USClient allocated to the ForeignCO project.
At the time it was building the ForeingCO plant, USClient had several other construction projects. As part of USClient's normal accounting practice, it allocates all overhead costs not incurred directly on particular projects to all projects, using total direct costs as the allocation base. Using this allocation methodology, the total overhead costs allocated to the ForeignCO project totaled $50 million.
ForeingCO hired an expert who wrote a report rejecting the $50 million of overhead as damages. Specifically, the expert for ForeignCO argued:
"Costs included as damages must be incremental to the contract in order to be damages. As such, those costs must be directly related and necessary to the activities caused by the breach and reflect expenditures that would not have been made but for the breach. Based on my review of USClient's overhead, it is my opinion that the $50 million of overhead claimed as damages by USClient are either unrelated to the ForeignCO project or are fixed in nature and needed for general operations of USClient. The $50 million of overhead costs would have been incurred by USClient and are not incremental to the ForeignCO project. Therefore, the damages claimed by USClient of $50 million of fixed overhead should not be included as damages."
EE has been engaged by USClient to provide an expert witness to comment on ForeingCO's expert report cited above. You have been hired by EE as the expert witness to rebut ForeignCO's opinion. The legal definition of damages that should be applied in this case is, "damages resulting from a breach of contract by a defendant are to be calculated under the principle that compensation awarded to the plaintiff as damages should place the plaintiff in a position economically equivalent to the plaintiff's had the harmful event never occurred."
Required:
Write a rebuttal report that critiques the ForeignCO expert witness. In other words, do you agree with ForeignCO's expert that the $50 million of fixed overhead should be excluded as damages claimed by USClient? If you disagree, explain why the ForeignCO expert's opinion is wrong.