Business Law Chapter 6 Homework But Fair Market Value Not Always The

129

Chapter 6

Intentional Torts

Case 6.1

Mass.App.Ct.,2010.

Orlando v. Cole

76 Mass.App.Ct. 1112, 921 N.E.2d 566, 2010 WL 479767 (Mass.App.Ct.)

Appeals Court of Massachusetts.

Joseph M. ORLANDO

v.

Garrick F. COLE.

No. 09-P-404.

FN2. We recognize that the term “inaccurate” could also be understood as a neutral term and therefore not defamatory.

Within the context presented here, the term does not exclude the possibility that Orlando acted intentionally and

unprofessionally by assisting (or inducing) Atwater to sign an “inaccurate” affidavit. In any event, “[w]here the

FN3. The Restatement (Second) of Torts § 566 comment b, at 172 (1977) provides that opinions “apparently based on

facts regarding the plaintiff or his conduct that have not been stated by the defendant or assumed to exist by the parties to

the communication” are “mixed” opinions. A “mixed” opinion is actionable “if the comment is reasonably understood as

implying the assertion of the existence of undisclosed facts about the plaintiff that must be defamatory in character in

order to justify the opinion.”

Id.

at 173, 512 N.E.2d 260. “Thus, if I write, without more, that a person is an alcoholic, I may

determination is for the jury.

Lyons v. New Mass Media, Inc.,

390 Mass. 51, 59, 453 N.E.2d 451 (1983). See

Myers v. Boston

CHAPTER 6: INTENTIONAL TORTS 131

Magazine Co.,

380 Mass. 336, 339-340, 403 N.E.2d 376 (1980).

Cole’s allegations that the affidavit signed by Atwater was “inaccurate” and that Orlando’s conduct was “fraudulent” and “deceitful”

are factual because they are capable of being proved false. See

Reilly v. The Associated Press,

59 Mass.App.Ct. 764, 772, 797

FN4. Given our conclusion, we need not address Cole’s alternative theories, including an assertion that Orlando is a

limited public figure.

Judgment reversed.

Case 6.2

D.C.,2009.

Trustees of University of Dist. of Columbia v. Vossoughi

963 A.2d 1162, 241 Ed. Law Rep. 234

District of Columbia Court of Appeals.

chattel, conversion, and negligence, and awarded him compensatory damages in the amount of $1,650,000. The trial

court entered judgment on that verdict and denied UDC’s post-judgment motion for partial judgment as a matter of

law, a new trial, and/or a remittitur.

On appeal, UDC takes no issue with the jury’s finding of liability and seeks a new trial only on the question of Dr.

Vossoughi’s damages. To prove the value of his lost property at trial, Dr. Vossoughi relied on his own testimony and

the testing of mechanical theories and the creation and development of novel experimental devices for biomechanical

research. Over the course of his career, Dr. Vossoughi has written or edited 17 books and over 150 other

publications. According to the undisputed testimony of two fellow scientists, Dr. Vossoughi has made significant

discoveries and contributions and is well-known and respected in his academic field.

Dr. Vossoughi received his professional training at Catholic University in the District of Columbia. After earning his

not invariably) permit researchers who move to other academic institutions to take their laboratories and equipment

with them, because specialized scientific devices and other research or teaching materials may be of most value in

the hands of the principal investigator utilizing them. It is undisputed that Catholic University disclaimed the equipment

and intellectual property Dr. Vossoughi brought with him to UDC in *1167 1989, and that Dr. Vossoughi thereafter

was the rightful and sole owner of that property.

had reneged on a promise to give him tenure. In the summer of 1999, while settlement negotiations were taking

place, acting UDC provost Beverly Anderson directed Dr. Vossoughi in writing to vacate his laboratory, because the

space was needed for other university programs. In early September, however, UDC counsel Robin Alexander

advised Dr. Vossoughi’s attorney that Dr. Vossoughi’s eviction had been stayed in view of the on-going efforts to

resolve the employment litigation. Provost Anderson testified at trial that Alexander had asked her not to evict Dr.

had no “personal knowledge as to whether or not they may have thrown stuff out.” He did not check whether all the

contents of the laboratory were stored properly, because “the things we took out of the area … were already in boxes

by the time they arrived in the storage area.”

On February 11, 2000, Dr. Vossoughi returned to his laboratory, found the door open, and discovered that “[m]ost of

the lab was empty except some big pieces there.” He testified at trial that he saw “a lot of [his] stuff in the trash

II.

Dr. Vossoughi sought compensation from UDC for the destruction of four main types of personal property: (1) course

materials; (2) unpublished research data; (3) scientific instruments that he had fabricated; and (4) equipment and

other items that he had purchased from commercial vendors. The value of this property was a principal, though not

the sole, component of Dr. Vossoughi’s damages claim.FN2 Because most of the lost property was unique or had no

fair market value, Dr. Vossoughi asked the jury to award him its replacement value. In order to establish the value of

FN2. Dr. Vossoughi also sought an unspecified amount of compensation for the injury to his professional

career caused by the destruction of his laboratory. Dr. Vossoughi’s expert witnesses testified without

contradiction that his future job prospects had been severely limited, if not devastated, by his inability to bring

FN3. Dr. Conway described Dr. Vossoughi as “renowned” for his influential discovery and investigation of

residual stresses in soft tissues. According to Dr. Conway, “most textbooks on fundamental mechanics of the

human body … reference [Dr. Vossoughi’s] pioneering work in the residual stresses in the cardiovascular

system.”

Dr. Vossoughi’s Lost Course Materials

total value of $525,000 on the twenty-one sets of course materials destroyed by UDC. On cross-examination, Dr.

Vossoughi acknowledged that he had not based this valuation on his own compensation, which had been

considerably less than $100,000; when he was an adjunct professor at UDC, his salary was about $62,000 per year.

Dr. Vossoughi also stated that he had never tried to sell his course materials, because “[n]obody would buy

somebody else’s notes. It’s useless [sic] only for that particular class.”

FN4. In his voir dire examination outside the jury’s presence, Dr. Conway described Dr. Vossoughi’s course

materials as

some of the best that I have ever seen, with respect to the details of what he would teach in the classroom,

as well as all the evaluation tools that he used. Having created many courses myself, I can attest to the fact

that it’s a tremendous amount of work.

commitment to this unpublished data,” and his judgment (in light of his past experience applying for and receiving

grants) that a typical scientific*1170 project would be supported by a research grant of around $200,000, Dr.

Vossoughi sought $50,000 in damages for each lost project, or $500,000 in total. Dr. Vossoughi insisted that $50,000

per project was a “very, very low estimate.”

Dr. Conway testified that he had some familiarity with the unpublished research that had been in Dr. Vossoughi’s

the mathematics to create the computer modeling. So we had a nice symbiotic relationship going. And so when he

lost the data, … it was devastating because I was right in the middle of working on these models that seemed to be

approaching something that was useful.

Dr. Conway believed that Dr. Vossoughi’s figure of $50,000 constituted a “conservative” or “reasonable” estimate of

the value of each lost project. “Working at the National Science Foundation,” he explained,

“perhaps two research papers” based on the work that “nowadays” would be supported by a grant of $200,000 for a

two-year period.

Fabricated Scientific Instruments

Dr. Vossoughi testified that UDC destroyed nineteen “unique” scientific instruments that he had designed and built in

order to conduct his research at Catholic or UDC. Dr. Vossoughi claimed that these specialized instruments were not

mechanical properties of blood vessels; “soft tissue photographic items” worth $12,000, which were “designed for soft

tissue testing and recording;” an “inflation extension apparatus” valued at $20,000 that enabled Dr. Vossoughi to

study blood vessels under hypertension; FN5 a residual stress testing mechanism worth $15,000, which Dr. Vossoughi

had used to demonstrate that arteries are not “residual-stress-free;” FN6 torsion, axial compression and other

instruments worth a total of $22,500, which Dr. Vossoughi had developed to improve clamps utilized by trauma

FN5. Dr. Vossoughi estimated that it would cost over $80,000 “just to do that study.” “We study parametrically

what happens to blood vessel[s] when we get … high blood pressure. And that paper was published [and]

extremely well referred. Everybody asked for reprints.”

FN6. According to Dr. Vossoughi, he was “the first one in the world to create” such a device, and he

considered it his “best work.” He asserted that his discovery of residual stresses in arteries had sparked the

publication of over 400 scientific papers on the subject.

Dr. Conway testified that he was familiar with “probably 80 percent” of the fabricated instruments that Dr. Vossoughi

had identified as lost. Because such equipment was so “research–specific,” Dr. Conway testified, it was not available

and tear into account, their values exceeded what Dr. Vossoughi had estimated.

Equipment and Other Materials Purchased from Commercial Sources

Finally, Dr. Vossoughi testified that UDC had destroyed equipment and other items he had purchased from

commercial vendors. These items included scientific and medical instruments, tools and other devices; cameras and

other photographic equipment; computer parts; a refrigerator; laboratory and office supplies; and scientific

brought them with him to UDC from Catholic University. Dr. Vossoughi testified that he used these items regularly in

his work and that they were subject to wear and tear. He was not able, however, to estimate a current fair market

value for the items. When he was asked on cross-examination whether the items had appreciated or depreciated in

value, Dr. Vossoughi testified, “I can tell you this. All computer-related items are cheaper every day, as we

experience. All laboratory instruments, medical devices, or medical experiment-related devices, every week the prices

FN7. Compare Instruction 15-6 of the Standardized Civil Jury Instructions for the District of Columbia (2007

Rev. ed.):

The “Fair Market Value” of [an item of] property is the price that would result from a fair negotiation between

an owner desiring, but not obligated, to sell and a buyer desiring, but not obligated, to buy, and taking into

consideration all the uses to which the property has been and might reasonably be applied.

FN8. Brief for Appellants at 43.

[1][2][3] In this jurisdiction, the admissibility of expert testimony depends on three criteria:

(1) the subject matter [must] be so distinctly related to some science, profession, business or occupation as to be

beyond the ken of the average layman; (2) the witness [must] have sufficient skill, knowledge, or experience in that

field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth; and

FN9.

Jung v. George Washington Univ.,

875 A.2d 95, 105 (D.C.2005) (internal quotation marks, emphases,

and ellipses omitted),

amended on unrelated issue,

883 A.2d 104 (D.C.2005).

FN10.

Id.

at 104 (internal quotation marks omitted).

FN11.

Id.

at 105 (internal quotation marks omitted) (quoting

Otis Elevator v. Tuerr,

616 A.2d 1254, 1256

(D.C.1992)).

[4] It is undisputed that the valuation of Dr. Vossoughi’s specialized property was a proper subject for expert opinion

testimony; it is certainly a subject “distinctly related” to Dr. Vossoughi’s occupation and “beyond the ken” of the

average lay juror. As to the experts’ qualifications, the issue is not whether Dr. Conway and Dr. Saha had formal

FN12. Brief for Appellants at 45.

In short, the trial court had ample grounds to find that the valuation testimony involved subject matter beyond the ken

of the average lay juror; that it was provided by qualified experts; and that it had a reasonable and reliable basis. We

conclude that the court did not abuse its discretion by admitting the testimony.

IV. Sufficiency of the Evidence of Value

FN14.

Bowler v. Joyner,

562 A.2d 1210, 1214 (D.C.1989) (internal quotation marks omitted).

FN16.

Hartford Accident & Indem. Co.,

409 A.2d at 1082 (internal quotation marks omitted).

FN18.

Id.

at 550 (citations omitted).

ed.1984)).

[10][11][12][13][14] The usual and “traditional” measure of damages for conversion of property is “the fair market

value of the property at the time of the conversion.” FN20 In determining the fair market value of a used item, neither its

FN20.

Maalouf v. Butt,

817 A.2d 189, 190 (D.C.2003) (quoting

Bowler v. Joyner,

562 A.2d 1210, 1213

(D.C.1989)).

FN21.

See, e.g., Mahallati v. Williams,

479 A.2d 300, 306-07 (D.C.1984) (holding an award of damages for

FN22.

United States v. Maryland,

116 U.S.App. D.C. 259, 266, 322 F.2d 1009, 1016 (1963),

rev’d on other

grounds,

382 U.S. 158, 86 S.Ct. 304, 15 L.Ed.2d 226 (1965).

See also Am. Serv. Ctr. Assocs. v. Helton,

867

FN23. Restatement (Second) Torts § 911(1) (emphasis added).

The phrase “value to the owner” denotes the existence of factors apart from those entering into exchange

value that cause the article to be more desirable to the owner than to others.

Some things may have no exchange value but may be valuable to the owner; other things may have a

FN24. Restatement (Second) Torts § 927 cmt. c. This principle is subject to some reasonable limitations; for

5.13(1), 5.14(1) (2d ed.1993).

[15] UDC does not dispute that replacement cost was an appropriate measure of damages for the destruction of Dr.

Vossoughi’s course materials, unpublished research and fabricated instruments. As the evidence showed, this

FN26. Restatement (Second) Torts § 911 cmt. e.

The trial court correctly charged the jury in accordance with the foregoing principles, and we are satisfied there was

original purchase price, and (unlike in

Mahallati

FN27) we cannot find that it failed to do so.

FN27.

Mahallati, supra

note 21,479 A.2d at 307.

[16] As to Dr. Vossoughi’s other property (which accounted for the bulk of his claimed damages), UDC does not

persuade us that the evidence of its replacement cost was “so speculative, flawed, and unreliable that it should never

have been submitted to the jury.” FN28 In essence, Dr. Vossoughi based his estimates of the value of the property on

FN28. Brief for Appellants at 40.

FN29.

Garcia v. Llerena,

599 A.2d 1138, 1144 (D.C.1991) (holding that plaintiff failed to prove his lost

business profits where his “only basis for measuring [them] was [a] mysterious ‘one–third of gross’ formula”

unsupported by any evidence).

FN30.

Maalouf,

817 A.2d at 190-91.

FN31.

See, e.g., Hartford Accident & Indem. Co.,

409 A.2d at 1082 (“[A]n expert may testify as to value from

a description of the lost item at trial, a view shared by a majority of courts.”).

UDC further argues that Dr. Vossoughi’s valuation of his course materials was flawed in three respects. First, Dr.

Vossoughi admitted his course materials were not salable (“Nobody would buy somebody else’s [teaching] notes. It’s

useless [sic] only for that particular class.”). But as we have explained, the absence of an exchange value does not

researcher, and Dr. Conway testified that the University of Central Florida had considered hiring Dr. Vossoughi at a

salary of $130,000.)

Finally, UDC argues that Dr. Vossoughi’s evidence could not support an award of damages for the destruction of his

unpublished research results because he could not describe the research or recall how much time he had devoted to

each project over the years. There is force to this argument. Nevertheless, Dr. Vossoughi’s testimony about the

[17] UDC contends that the trial court erred in denying its request for an instruction on Dr. Vossoughi’s failure to

mitigate his damages. During the trial, UDC asked for such an instruction because the evidence showed (1) that Dr.

Vossoughi could have removed and protected his property long before UDC cleaned out his laboratory, and (2) that

Dr. Vossoughi “was there during the move when it was in progress [and] could have requested that they stop [or]

done something during that time to lessen what was happening.” In its post-trial motion, UDC advanced a third basis

FN32.

Edward M. Crough, Inc. v. Dep’t of Gen. Servs. of the District of Columbia,

572 A.2d 457, 466

FN33.

Crough,

572 A.2d at 467.

[20][21] UDC did not carry its burden: as the trial court recognized, there was insufficient evidence to support an

FN34. A party is entitled to an instruction on its theory of the case so long as there is “some evidence” to

support it.

Nelson v. McCreary,

694 A.2d 897, 901 (D.C.1997) (quoting

Hilord Chem. Corp. v. Ricoh Elec.,

Inc.,

875 F.2d 32, 38 (2d Cir.1989)).

FN35.

Robinson v. Carney,

632 A.2d 106, 108 n. 4 (D.C.1993) (quoting W. PAGE KEETON ET AL.,

PROSSER AND KEETON ON THE LAW OF TORTS § 65, at 458 (5th ed.1984)) (emphasis added).