DLJ and other parties were sued by investors in AmeriServe debt securities claiming that defendants improperly hid the deteriorating relationship between AmeriServe and its largest customer group. Plaintiffs alleged that the value of their securities fell when this information was leaked to other market participants.

Plaintiffs’ expert and NERA’s expert provided simultaneous written reports on the alleged damages if defendants were found liable. The day before her deposition, plaintiffs’ expert provided an updated analysis that, for the first time, discussed the alleged inflation in the securities’ value, the analysis used in the NERA expert report. As trial approached, both sides filed motions in limine to exclude the opposing experts. Plaintiffs’ dropped one of their expert’s original damage analyses (relying instead on the analysis of alleged inflation) and their expert submitted an affidavit attempting to show that an analysis that she had performed and that was criticized by NERA’s expert met the Daubert criteria.

The Court granted defendants’ motion to exclude plaintiffs’ expert from testifying at trial. The parties settled several days later.