Inc. v. FirstLight Fiber, Inc.

THE STATE OF NEW HAMPSHIRE

HILLSBOROUGH, SS SUPERIOR COURT
NORTHERN DISTRICT

Vermont Telephone Company, Inc.

v.

FirstLight Fiber, Inc.

Docket No. 216-2020-CV-00312

ORDER ON DEFENDANT’S MOTION TO EXCLUDE PLAINTIFF’S EXPERT

Plaintiff Vermont Telephone Company, Inc. (“VTel”) brought this action against

Defendant FirstLight Fiber, Inc. (“FirstLight”) arising out of FirstLight’s termination of the

parties’ contract. Plaintiff’s amended complaint alleges claims for breach of contract

(Count I) and breach of the implied covenant of good faith and fair dealing (Count II).

Defendant filed a counterclaim for breach of contract. FirstLight now moves in limine to

exclude VTel from introducing Brian Pitkin’s expert testimony about VTel’s alleged

damages at trial. (Doc. 156.) VTel objects. (Doc. 162.) Both FirstLight (Doc. 166) and

VTel (Doc. 169) further respond. The Court held a hearing on July 31, 2023. For the

reasons set forth below, FirstLight’s motion to exclude is DENIED.

The Court incorporates the facts set forth in the Court’s January 3, 2023

summary judgment order. (Doc. 144.) By way of further background, the parties

entered into a Dark Fiber Lease Agreement (the “Lease”) in 2014 which provided VTel

with access to a dark fiber route (the “Route”) between Lebanon, New Hampshire and

Boston, Massachusetts. FirstLight terminated the Lease, effective December 14, 2019.

VTel retained Pitkin from FTI Consulting (“FTI”) as its expert to determine the

damages VTel suffered as a result of FirstLight’s alleged breach of the Lease. Pitkin is
the senior managing director of FTI’s telecommunications group. (Pl.’s Ex. 1 ¶ 5.)

Pitkin has worked in the telecommunications industry for over twenty-five years and has

regularly testified in front of state and federal courts, the Federal Communications

Commission, and state regulatory commissions. (Id.) As part of his experience, Pitkin

routinely completes and evaluates detailed business case analyses to help support

damage claims. (Id.)

Pitkin completed his expert report on July 9, 2021. VTel’s counsel instructed

Pitkin to complete his report assuming the following two things: (1) FirstLight wrongfully

terminated the Lease effective December 14, 2019 and (2) VTel would have started

using the fiber route in 2020 to pursue additional business opportunities. (Id. ¶ 8.)

Pitkin divided his report into three sections: (1) an analysis of VTel’s business

opportunities over a five-year period; (2) extension of the business opportunities through

the end of the Lease; and (3) the financial damages that VTel suffered as a result of the

lost opportunities. (Id. ¶ 9.) Ultimately, Pitkin concluded that VTel’s lost profits ranged

from $10.4 million to $43.9 million, with a mean outcome of $27.2 million. (Id. ¶ 10.)

Pitkin authored a rebuttal report on June 15, 2022, in response to criticisms from

FirstLight’s expert, Kenneth Martin. (Pl.’s Ex. 2 at 1.) Martin works for the consulting

firm Altman Solon and has worked in the telecommunications industry for over twenty-

four years. Pitkin’s rebuttal report largely upheld the analysis and findings of his initial

report. (Id.) Specifically, Pitkin rejected Martin’s criticisms that (1) Pitkin’s initial report

was too speculative, (2) Pitkin misunderstood the Lease, (3) Pitkin should have used

historical data, and (4) Pitkin relied on unreasonable assumptions, to be unfounded.

(Id. at 2.) In his rebuttal report, Pitkin agreed that he initially overlooked the cost of

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additional equipment that VTel would need to use to realize its potential business

opportunities and accordingly revised his estimate of damages down to $24.7 million.

(Id. at 29.)

FirstLight now moves to exclude Pitkin’s expert testimony for a variety of

reasons. Broadly, FirstLight argues that Pitkin’s damage calculations “are not

sufficiently reliable or properly moored to actual facts to qualify as expert testimony.”

(Doc. 158 at 1.) More specifically, FirstLight argues that: (1) there is no evidence that

VTel would have actually pursued the additional business opportunities upon which

Pitkin focused; (2) Pitkin modeled VTel’s telecom market share rather than using data

from VTel’s actual markets; (3) the industry estimations which Pitkin relied upon are

unreliable; and (4) Pitkin made flawed assumptions in calculating VTel’s long haul

opportunities between Montreal and Boston. (Id. at 1–2.) Therefore, FirstLight argues,

Pitkin’s testimony is inadmissible under New Hampshire Rules of Evidence 702 and 403

because it would be unreliable and highly prejudicial. VTel argues that Pitkin’s report

and testimony are sufficiently reliable and that FirstLight’s arguments go to the weight of

the evidence, which is left to the jury to determine. (Doc. 162 ¶ 3.) VTel also contends

that Pitkin’s testimony is not too speculative because he properly conducted a lost

future profits analysis. (Id. ¶ 4.)

Rule 702 provides: “If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training, or education,

may testify thereto in the form of an opinion or otherwise.” “Expert witnesses are called

to give their opinions on subjects about which they have special knowledge and

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experience, upon the assumption that, by reason of these qualifications, they will be

able to assist the jury in its search for the truth.” Brown v. Bonnin, 132 N.H. 488, 494

(1989).

“[E]xpert testimony must rise to a threshold level of reliability to be admissible.”

Baker Valley Lumber, Inc. v. Ingersoll-Rand Co., 148 N.H. 609, 614 (2002). In

determining the reliability of an expert’s testimony, the court in Baker Valley adopted the

framework set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). The

State legislature has since codified this framework in RSA 516:29-a, which states:

I. A witness shall not be allowed to offer expert testimony unless the court
finds:
(a) Such testimony is based upon sufficient facts or data;
(b) Such testimony is the product of reliable principles and methods;
and
(c) The witness has applied the principles and methods reliably to
the facts of the case.
II. (a) In evaluating the basis for proffered expert testimony, the court shall
consider, if appropriate to the circumstances, whether the expert’s opinions
were supported by theories or techniques that:
(1) Have been or can be tested;
(2) Have been subjected to peer review and publication;
(3) Have a known or potential rate of error; and
(4) Are generally accepted in the appropriate scientific literature.
(b) In making its findings, the court may consider other factors specific to
the proffered testimony.

Under this analysis, “[t]he trial court functions only as a gatekeeper, ensuring a

methodology’s reliability before permitting the fact-finder to determine the weight and

credibility to be afforded an expert’s testimony.” Baker Valley, 148 N.H. at 616. “While

the proponent of the expert witness bears the burden of proving the admissibility of the

expert's testimony, this burden is not especially onerous.” Szewczyk v. Cont’l Paving,

Inc., __ N.H. __, __ (decided August 16, 2023) (slip op. at 8). “The overall purpose

of Rule 702 and RSA 516:29-a is to ensure that a fact-finder is presented with reliable

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and relevant evidence, not flawless evidence.” Id. “[A]s long as an expert’s scientific

testimony rests upon good grounds, . . . it should be tested by the adversary process—

competing expert testimony and active cross-examination—rather than excluded from

jurors’ scrutiny for fear that they will not grasp its complexities or satisfactorily weigh its

inadequacies.” State v. Langill, 157 N.H. 77, 88 (2008).

As a preliminary matter, the Court notes that it found Pitkin to be credible. Pitkin

provided clear and articulable reasons to support specific decisions that he made

throughout his report. For example, Pitkin testified that he identified six potential

business opportunities along the fiber route that VTel could have taken advantage of if

FirstLight never terminated the Lease. However, Pitkin further testified that he only

included two of them—enterprise and long haul opportunities between Boston and

Montreal—in his damages estimation. Pitkin’s knowledge and detailed rationale for

limiting the scope of his report’s analysis from the outset highlights his expertise and

methodology. Additionally, Pitkin coherently engaged with the criticism of his report and

readily admitted when he believed he made a mistake in his original report, further

emphasizing Pitkin’s knowledge and understanding of the telecommunications industry.

Broadly, the Court agrees with VTel that the true gist of FirstLight’s arguments

goes to the weight and not the reliability of Pitkin’s testimony. Crucially, expert

testimony need not be perfect to be reliable under Rule 702. See Szewczyk, __ N.H. at

8. The Court agrees that Pitkin’s testimony is not flawless, especially the data that

Pitkin used from Montpelier, Vermont. Nevertheless, Pitkin relies on methods and facts

that are “generally accepted” in the telecommunications industry. Moscicki v. Leno, 173

N.H. 121, 125 (2020) (“RSA 516:29-a, II requires courts to consider whether the

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proffered testimony is based upon theories or techniques that are generally accepted; it

does not require courts to exclude testimony where the testimony is not supported by

the theory or technique that has the most acceptance.”). Indeed, Pitkin credibly

testified, for example, it was standard practice in the telecommunications industry to use

industry models rather than historical company data. There are no bright line rules for

determining the admissibility for expert testimony as courts instead must focus on

whether the underlying facts or methodologies are reliable. See id. (declining to adopt a

bright-line rule that a specific generally accepted methodology in toxic torts cases must

be used as long as another generally accepted methodology is). The Court will now

turn to FirstLight’s specific grievances to demonstrate why Pitkin’s testimony is

sufficiently reliable under Rule 702 and RSA 516:29-a, II.

The Court addresses FirstLight’s contention that the basis for Pitkin’s analysis

was flawed because there was no indication that VTel would have utilized splices along

the Route. Putting aside the unresolved legal question of how many data splices would

be allowed under the Lease,1 the Court finds that the basis of Pitkin’s report is not so

speculative as to render his opinion unreliable. Forecasting lost profits, which is an

accepted form of damages, inherently requires a degree of speculation. See Boyle v.

City of Portsmouth, 172 N.H. 781, 792 (2020) (stating that “while absolute certainty” is

not required to support a lost profits damages award, “damages cannot be awarded for

speculative losses.”). Here, given the existence and length of the Lease, including the

Lease’s provision allowing for splices along the Route and the unique opportunities that

dark fiber presents, Pitkin had a factual basis upon which to reliably forecast that VTel

1 At the July 31, 2023 hearing, the parties stated that they will file separate motions to determine how

many, if any, splices along the fiber route that VTel would have been entitled to.

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would have engaged in additional business opportunities had FirstLight not terminated

the Lease. See Stachulski v. Apple New England, LLC, 171 N.H. 158, 164–65 (2018)

(finding that expert testimony had sufficient facts that the defendant’s hamburger

caused the plaintiff’s food poisoning where the circumstantial evidence that ruled out

other possible causes of the plaintiff’s illness).

This is not a situation where Pitkin relied exclusively on historical profits to

anticipate future profits or where FirstLight presented evidence beyond challenging

Pitkin’s methodologies that VTel would not earn the profits that Pitkin estimated. See

Bezanson v. Hampshire Meadows Dev. Corp., 144 N.H. 298, 304–06 (1999) (rejecting

plaintiff’s lost profit analysis because there was no evidence in the record demonstrating

how the plaintiff’ s historical profits in one year would translate to the future). Thus, the

fact that VTel had not begun utilizing additional opportunities along the Route does not

automatically render Pitkin’s analysis too speculative to be reliable. See Boyle, 172

N.H. at 792; Bezanson, 144 N.H. at 304–06.

Next, FirstLight also takes issue with Pitkin’s decision to use industry forecasts

rather than VTel’s historical data to predict its future income. (Doc. 158 at 5–6.) More

specifically, FirstLight contends that the amount of estimated revenue VTel would have

obtained cannot be verified due to the manner in which Pitkin calculated the value of the

telecom market in the twenty markets he identified. (Pl.’s Ex. 1 at 16); (Doc. 158 at 5–

6.) At the hearing, Pitkin explained in detail why he used industry benchmarks and

databases to forecast the revenue VTel would have expected to earn if it took

advantage of opportunities along the fiber route.

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 More specifically, FirstLight contends that the manner in which Pitkin calculated

the amount of telecom market in each of the twenty markets he identified (Pl.’s Ex. 1 at

16) was unreliable and thus claims that the amount of the estimated revenue from the

markets cannot be verified. (Doc. 158 at 5–6.) During the July 31 hearing, Pitkin

testified that he utilized GeoTel and S&P Capital IQ to help model VTel’s lost business

opportunities along the fiber route by providing customer information in the twenty

identified markets to forecast lost profits. Pitkin further testified at length about his

decision to use modeled data rather than historical VTel data to model the amount VTel

would have likely made had FirstLight not terminated the Lease. Pitkin explained that

historical data does not provide the same level of information as the benchmarks he

utilized instead. He further articulated that using historical VTel data would make his

analysis unreliable because he would be using inconsistent data sets, making his

analysis “an apples to oranges” comparison. Pitkin opined that such a comparison

would be “meaningless” because the amount that an actual customer spends on

telecom services contemplates a different analysis than GeoTel’s database that

includes average customer telecom spend. (H’rg 10:52.)

The Court finds that FirstLight’s arguments attempt to undermine the weight of

Pitkin’s testimony rather than its reliability. Pitkin credibly testified that he used the

indexes and benchmarks consistent with the way they are commonly used throughout

the telecommunications industry. In fact, Pitkin explained that Altman Solon uses the

same databases in a similar manner. This demonstrates that although FirstLight may

quibble with the specific way in which Pitkin used the GeoTel or S&P Capital IQ

databases, Pitkin nevertheless used generally accepted methods. See Moscicki, 173

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N.H. at 125. Any concerns that FirstLight has about how Pitkin used these databases to

arrive at his ultimate damages calculation can be addressed on cross-examination at

trial. See Langill, 157 N.H. at 88.

The Court acknowledges that FirstLight’s expert disagrees with Pitkin’s

methodology, explaining that using historical VTel data would create a more reliable

damages determination than Pitkin’s use of GeoTel data. However, this strikes the

Court as the kind of challenge best left to cross-examination. Id. FirstLight’s arguments

do not demonstrate that Pitkin’s use of industry databases is not a generally accepted

practice in the telecommunications industry. See Moscicki, 173 N.H. at 125. In fact, the

evidence presented shows the opposite to be true. Because Pitkin used a generally

accepted method, his methodology is sufficiently reliable to allow the jury to hear and

assess it. Langill, 157 N.H. at 88.

FirstLight next takes issue with Pitkin’s analysis of VTel historical data from

Montpelier, Vermont. Specifically, FirstLight contends that the inconsistencies between

the industry benchmark data for Montpelier ($92,615) and VTel’s actual wallet share of

telecom spend in Montpelier ($9,600) demonstrates Pitkin’s unreliability because

Pitkin’s calculations artificially inflated VTel’s damages. (Doc. 158 at 13.) Pitkin

explained that he used Montpelier as a focal point in his analysis because it is the one

market where VTel has a pre-existing customer base. Pitkin further articulated that his

analysis was not trying to show the pre-existing wallet share but was rather trying to

establish a baseline to consistently compare against other industry benchmarks.

FirstLight spent significant time during the July 31 hearing going through Pitkin’s

projected telecom spend that he calculated for Montpelier. In FirstLight’s estimation, the

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data Pitkin relied upon was unreliable because of various irregularities including

categories that had no customers or duplicate entries. Overall, FirstLight’s objections to

Pitkin’s methodology about Montpelier echo its problems with Pitkin’s use of industry

recognized benchmarks. Pitkin emphasized in his rebuttal report that he estimated

VTel’s fair market share in Montpelier based off of VTel’s pre-existing customer base in

order to have a consistent set of data upon which to calculate VTel’s estimated

damages. (Pl.’s Ex. 2 ¶¶ 56–57.)

The Court finds that FirstLight’s arguments again go towards the weight of the

evidence rather than its reliability. As the Court addressed above, Pitkin’s use of widely

recognized industry databases is a regularly accepted industry practice. See Langill,

157 N.H. at 88. To the extent that FirstLight contends that Pitkin should have used

another method instead, the Court is not persuaded because the methodology that

Pitkin used is nevertheless generally accepted in the telecommunications industry. See

Moscicki, 173 N.H. at 125. Pitkin credibly testified that although he used VTel’s existing

customer base, he modeled the customer data accordingly so he could properly

compare it with the other identifiable markets. The Court finds this to be in harmony

with the generally accepted methods Pitkin used to calculate expected profits from the

other twenty identifiable markets. See id.

Presently, there is enough evidence in the record demonstrating that Pitkin’s

methodology was reliable even if there is other evidence in the record suggesting that

Pitkin’s data set was potentially flawed. See Szewczyk, __ N.H. at 8 (concluding that an

expert’s testimony that a damaged polyethylene liner likely caused flooding was

admissible despite the fact that there was no evidence in the record documenting that

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the liner was damaged or defective). Ultimately, because Pitkin’s methodology in using

the Montpelier case study is reliable, any unresolved questions is best left for the jury.

Cf. Beckles v. Madden, 160 N.H. 118, 128 (2010) (acknowledging that lay witnesses

could provide needed factual context for expert testimony which should be best left for

the jury to consider).

Additionally, FirstLight also maintains that Pitkin’s testimony is unreliable

because of errors in modeling lost profits along a long haul fiber route between Montreal

and Boston. FirstLight asserts that there would be more robust competitors than what

Pitkin relied upon in his modeling, thus making his conclusion that the best case

scenario of VTel capturing twenty percent of the market unreliable. (Doc. 158 at 15).

Lastly, FirstLight also questions VTel’s desire and preparation to develop the long haul

market in the first place. (Id.) Pitkin explained at the hearing that VTel had no

Canadian data available to examine long haul opportunities available in Montreal.

Thus, Pitkin used United States cities based on similar population characteristics as a

proxy because in his experience United State cities have similar telecom data to

Canadian cities. VTel argues that FirstLight merely demonstrated that FirstLight’s

expert disagreed with Pitkin’s calculations and used a different model but failed to show

why Pitkin’s model was unreliable. (Doc. 162 at 27–28.)

The Court agrees with VTel. It is clear that FirstLight’s expert disagrees with

Pitkin’s analysis. However, a mere disagreement between experts where both experts

rely on generally accepted methodologies is not sufficient to exclude Pitkin as an expert.

Cf. Moscicki, 173 N.H. at 125. Pitkin utilized GeoTel data to approximate Canadian

data. The Court above has already found that Pitkin’s utilization of industry benchmarks

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and databases is a generally accepted methodology in the telecommunications industry.

Additionally, the Court finds Pitkin, with all of his experience, to be credible when he

testified that data from American cities is similar enough to Canadian cities to serve as a

reliable proxy. Additionally, similar to the Court’s previous analysis on the speculative

nature of Pitkin’s testimony, Pitkin’s reliance on the unique opportunities that the Route

presented to VTel demonstrates that Pitkin’s analysis of the long haul opportunities had

a basis in the record. (Pl.’s Ex. 2 ¶ 50); see Bezanson, 144 N.H. at 304–06. Simply

put, FirstLight’s questions about the soundness of Pitkin’s methodology compared to

Martin’s methodology goes to the weight of Pitkin’s testimony and should be left for a

jury to decide. Langill, 157 N.H. at 88.

Likewise, the Court finds the rest of Pitkin’s analysis to fall within generally

accepted industry standards. At the hearing, Pitkin explained that after he completed

the above business case analyses, he engaged in standard forecasting models that he

testified are easily reviewable on multiple levels. The Court agrees, especially with the

fact that Pitkin used industry accepted data that is from readily accessible databases.

The heart of FirstLight’s challenges to Pitkin stems from its belief that his attempt to

calculate any degree of damages for business opportunities that where there was no

proof that VTel would every realize these opportunities is too speculative. As the Court

touched on above, damages calculations have to “address a hypothetical world that

never existed, one in which other things remained the same but the breach had not

occurred.” Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 968 (9th Cir.

2013). Thus, especially in the context of a pre-existing venture branching into new

opportunities afforded to them by a terminated contract, forecasting what revenue VTel

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could have owned based off of pre-existing models is not prohibitively speculative. Id.

at 969–70 (finding an expert’s general methodology of “comparing the unknown to an

analogous known experience” to be reliable).

Ultimately, the Court disagrees with FirstLight’s contention that Pitkin’s

methodology was so unreliable as to create biased and “garbage” results. (H’rg 11:28.)

VTel has carried its burden to show that Pitkin’s testimony meets the threshold

requirement for reliability. To be sure, Pitkin is not a flawless witness, but he is not

required to be. FirstLight’s proper recourse to challenge Pitkin’s reliability is to cross-

examine him, especially pertaining to the differences in approaches and methodologies

between him and Martin. Langill, 157 N.H. at 88. The Court is not persuaded that

allowing Pitkin to testify would be unfairly prejudicial to FirstLight because it will have an

opportunity to cross-examine Pitkin and to call its own expert to attempt to sway the jury

to its side. Were the Court to side with FirstLight here, the Court would exceed its gate-

keeping function. See Szewczyk, __ N.H. at 9. Therefore, Pitkin’s testimony is

admissible under Rule 702 and RSA 516:29-a.

Conclusion

Accordingly, for the foregoing reasons, the Court DENIES FirstLight’s motion.

SO ORDERED.

__________________________
September 5, 2023 David A. Anderson
Associate Justice

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