Common Sense Is Not a Methodology: What a Court Struck From a Damages Economist's Report — and What It Kept
A Court drew sharp lines between economic methodology and legal argument when a damages expert chose to critique rather than calculate.
A Federal Court in New York recently worked through a question that every testifying economist should study closely: what happens when your report lays out the standard damage’s framework, cites the academic literature, examines the Plaintiff’s job search in detail — but never actually produces a number? In a pregnancy discrimination case, a Ph.D. economist with more than twenty years of experience was retained not to calculate the Plaintiff’s damages, but to critique how the Plaintiff had estimated them. The Court found her qualified, found her general framework relevant — and then excluded large portions of her report. The opinion drew a series of lines that define the boundary between economic analysis and everything else an expert might be tempted to include. Opinions that restated legal standards were struck as impermissible jury instructions. Factual observations pulled from the record were struck for lacking the application of specialized knowledge. A qualitative assessment of job qualifications was struck after the expert acknowledged at deposition that the assessment was grounded in common sense. What survived was the methodology — the tenure probability models, the damages framework, the economic gap analysis. For economists preparing expert reports in employment litigation, the record offers a detailed map of where the Court drew each line and why.
The Case That Set the Stage
A mid-level associate at a large international law firm was terminated from her position in the firm’s intellectual property practice group. At the time of her firing, she was six months pregnant with her first child. She had submitted her formal request for maternity leave just six days before the termination call.
According to the complaint, the associate had joined the firm roughly a year earlier, recruited by a senior partner who had met her at an industry summit. She came with several years of experience at other firms, where she had worked on significant intellectual property matters and managed large trademark portfolios for Fortune 500 clients.
The complaint alleged that her tenure at the firm was marked by consistent positive signals. In the span of roughly four months after her start date, her base salary was increased three times, ultimately rising by about twenty-one percent. She received a six-figure year-end bonus — reportedly available only to associates meeting or exceeding the firm’s performance expectations — along with an additional special bonus reserved for high performers. Her billing rate was increased, and she was promoted from a sixth-year to a seventh-year associate.
The associate alleged that her supervising partner routinely approved her work with minimal revisions and recommended her to other partners across the firm. According to the complaint, the firm never provided a formal performance review, issued any written warning, or placed her on an improvement plan. When she proactively sought feedback, she was told she was doing exactly what was needed.
According to the complaint, things changed after the associate disclosed her pregnancy. She informed her supervising partner in early August, and the partner directed her to notify human resources and firm leadership. Five days after the firm was notified of her short-term disability application, the supervising partner called and informed her that she was being terminated. The stated reason, according to the complaint, was performance.
The associate filed suit in federal Court in the Southern District of New York, bringing claims for pregnancy discrimination and retaliation under Title VII, the Family and Medical Leave Act, and both New York State and New York City human rights laws. She sought economic damages, compensatory damages, punitive damages, liquidated damages, and attorneys’ fees.
This is where the economics began.
The Expert’s Assignment: Critique, Not Calculate
The Defendant retained an economist to scrutinize the Plaintiff’s claimed economic losses. The expert was a managing director at an international economics consulting firm, held a Ph.D. in economics, and had spent more than twenty years providing consulting and expert testimony in wrongful termination, labor, and antitrust matters. She billed at $600 per hour, with economists working under her direction billing between $380 and $455 per hour.
Her assignment was narrow and specific. She was not asked to opine on whether the termination was lawful or unlawful. She was not asked to calculate damages. Rather, she was asked to evaluate the Plaintiff’s approach to estimating economic damages and to identify factors that a reliable damages calculation would need to account for.
The Plaintiff had stated in an interrogatory response that she would seek back and front pay at a rate of at least $600,000 per year, a figure she described as reflecting her total compensation prior to termination plus anticipated salary increases. According to the expert, the Plaintiff had not provided any additional information, methodology, or supporting evidence for how she arrived at that number. She had not broken it down into components, had not specified the timeframe, and had not distinguished between back pay and front pay.
The expert laid out the standard framework for calculating damages in wrongful termination cases, drawing on the Reference Manual on Scientific Evidence. She described four elements: constructing the “but-for world,” establishing the “actual world,” projecting both scenarios into the future, and discounting future losses to present value.
On the but-for side, the expert noted that the Plaintiff’s base salary at the time of termination was $400,000. She explained that associate base salaries at the firm increased in lockstep based on seniority and overall market conditions, though increases were also subject to adjustments based on work quality and contributions. She argued that a proper estimate needed to reflect the actual salaries paid to comparable associates at the firm in the years following the Plaintiff’s departure, as well as the Plaintiff’s likelihood of meeting eligibility requirements for bonuses and pay increases.
On the actual-world side, the expert documented the Plaintiff’s post-termination employment. The Plaintiff began working as a contract attorney roughly a year after her termination and remained in that role for about six months. She then secured a position as a product counsel at a large e-commerce technology company, where her base salary was approximately $187,900 — roughly forty-three percent of what a senior associate at a comparable firm might have earned in 2024, according to the expert’s analysis.
The expert examined the Plaintiff’s job search. The Plaintiff had applied to more than 1,035 unique positions. Of those, only about sixty-five — roughly six percent — were at law firms. The vast majority were for in-house counsel positions. The expert identified 295 open law firm positions for mid-level and senior intellectual property attorneys during a portion of the Plaintiff’s search period, using data from a forensic job statistics provider. She cited industry research indicating that in-house compensation reaches, at most, about seventy-five percent of large-firm compensation.
The expert also addressed how long the Plaintiff would have remained at the firm had she not been terminated. She cited academic research on employee tenure, including a study estimating that women have a nearly fifty-five percent probability of leaving their employer within the first year. She noted that the Plaintiff was a seventh-year associate and that associates who make partner typically do so after approximately eight to twelve years. She cited research showing that only about four percent of associates at large firms made partner in 2023.
The expert concluded that the Plaintiff’s $600,000 figure was unsupported and unreliable, and that a proper estimate would need to account for actual firm compensation data, performance and bonus eligibility, post-termination earnings and job search choices, the probability that the Plaintiff would have remained at the firm, and the appropriate discount rate for future losses.
The report was signed in December 2025. Substantial portions were redacted in the publicly filed version.
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