Opinion

FOR PUBLICATION

ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEES:

PETER J. RUSTHOVEN F. JOSEPH JASKOWIAK

Barnes & Thornburg LLP LAUREN K. KROEGER

Indianapolis, Indiana Hoeppner Wagner & Evans LLP

Merrillville, Indiana

BRIAN N. CUSTY

Merrillville, Indiana

May 07 2013, 8:31 am

IN THE

COURT OF APPEALS OF INDIANA

THINK TANK SOFTWARE DEVELOPMENT )

CORPORATION d/b/a THINK TANK )

NETWORKING TECHNOLOGIES GROUP )

and THINK TANK INFORMATION SYSTEMS, )

)

Appellant-Plaintiff, )

)

vs. ) No. 64A05-1205-PL-270

)

CHESTER, INC., MIKE HEINHOLD, )

JOHN MARIO, JOEL PARKER, )

THOMAS GUELINAS, JON MEYER, )

DANIEL CURRY, ERIC M. WOJCIECHOWSKI, )

MICHAEL GEE, PHILIP RYAN TURNER and )

CARL ZUHL, )

)

Appellees-Defendants. )

APPEAL FROM THE PORTER SUPERIOR COURT

The Honorable David L. Chidester, Judge

Cause No. 64D05-0205-PL-3861

May 7, 2013

OPINION - FOR PUBLICATION

SHARPNACK, Senior Judge

STATEMENT OF THE CASE

In this interlocutory appeal, Think Tank Software Development Corporation d/b/a

Think Tank Networking Technologies Group and Think Tank Information Systems

(“Think Tank”) seeks review of the trial court’s grant of a motion to exclude testimony

from its expert witness on economics and business valuation. The motion was filed by

Chester, Inc., Mike Heinold, John Mario, Joel Parker, Thomas Guelinas, Jon Meyer,

Daniel Curry, Eric M. Wojciechowski, Michael Gee, Philip Ryan Turner, and Carl Zuhl

(collectively, “Chester”). We reverse and remand.

ISSUES

Think Tank raises two issues, which we restate as:

I. Whether the trial court abused its discretion by granting Chester’s motion

to exclude Think Tank’s expert witness testimony.

II. Whether this Court’s prior decision in this case requires clarification on the

subject of damages.1

FACTS AND PROCEDURAL HISTORY

The relevant facts, as stated in the prior decision in this case, are as follows:

Think Tank is engaged in computer-related business activities,

including systems and network engineering, problem solving, systems

design, implementation, sales, client training, and computer maintenance.

As of April 19, 2001, Think Tank employed defendants Mario, Parker,

Guelinas, Meyer, Curry, Wojciechowski, Gee, Turner, and Zuhl

(collectively, the former employees).

Think Tank required most, if not all, employees to sign employment

agreements containing a covenant not to compete.

1

Chester has filed a Motion to Strike. We deny the motion by separate order.

2

....

During a period ranging from April 20, 2001, to April 19, 2002, all

of the former employees left Think Tank for various reasons, shrinking

Think Tank’s staff from sixteen to nine employees. With the exception of

Parker, all of the former employees went directly from Think Tank to

Chester. [Parker worked for another employer for five months before going

to work for Chester.] Chester was informed of the covenant not to compete

by Curry, Gee, Guelinas, Wojciechowski, and Zuhl. However, Mario,

Parker, Meyer, and Turner did not believe they had signed the covenant

when they were hired by Think Tank, and Think Tank could not produce

the signed agreements. Think Tank’s president asserts that each of these

four signed the covenant in his presence.

On April 26, 2002, Think Tank filed its “Verified Complaint For

Injunctive And Other Relief” against Chester; Chester’s manager,

Heinhold; and the former employees. Among other things, Think Tank

alleged in its complaint that its former employees were violating the

covenant not to compete by contacting Think Tank personnel and

customers. Think Tank further alleged that Chester, Heinhold, and the

former employees were interfering with Think Tank’s business by

divulging confidential information and trade secrets. Three days later, after

an ex parte emergency hearing, a Lake Superior Court granted a temporary

restraining order finding that Think Tank had “a protectable interest in its

goodwill (which includes all its customer information and relationships as

well as its employees) and reputation . . . .” The court further found that

“the provisions of [the covenant] provide reasonable and appropriate

restrictions on post-employment conduct of [Think Tank’s] employees; and

that all defendants in concert with one another have either breached the

[covenant] or induced or aided the breach . . . .”

On May 1, 2002, the defendants filed for a change of venue, and the

Lake Superior Court transferred the case to the Porter Superior Court on

May 6, 2002. After a hearing on the defendants’ motion to dissolve the

temporary restraining order, the trial court ruled on May 10, 2002, that the

temporary restraining order was not properly issued because Think Tank

failed to give proper notice pursuant to Indiana Rule of Trial Procedure

65(B)(2) and failed to post bond pursuant to Indiana Rule of Trial

Procedure 65(C).

On June 7, 2002, Think Tank filed its “First Amended Verified

Complaint For Injunctive And Other Relief.” In this amended complaint,

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Think Tank asserted breach of contract and tort claims against various

defendants.

Think Tank did not pursue injunctive relief, and on August 24, 2004,

the defendants moved to dismiss the case due to Think Tank’s lack of

prosecution. The motion was denied and discovery continued until

November 30, 2009. On December 31, 2009, the defendants filed a motion

for summary judgment challenging Think Tank’s claims. On March 9,

2010, after holding a hearing and reviewing the designated evidence of all

parties, the trial court granted the motion for summary judgment for the

defendants on all of the claims raised by Think Tank in its first amended

complaint. In doing so, the trial court concluded that the covenant not to

compete in the various employment agreements “is overbroad and is

therefore unenforceable . . . and cannot be reformed.” The court also

concluded that “the information alleged to have been misappropriated by

[the defendants] does not constitute a ‘trade secret’ under the Indiana Trade

Secret Act and therefore [Think Tank’s] claim for misappropriation fails as

a matter of law.” The court further concluded as a matter of law that Think

Tank’s claims for interference with a business relationship, unfair

competition, and unjust enrichment “do not apply to the fact situation of

this case.”

Think Tank Software Dev. Corp. v. Chester, Inc. (Think Tank I), No. 64A03-1003-PL-172

*1-3 (Ind. Ct. App. Apr. 11, 2011) (footnotes and record citations omitted).

In concluding our opinion, we stated,

The trial court erred in granting summary judgment on the basis that the

covenant not to compete was overbroad. The trial court also erred in

granting summary judgment on the propriety of the confidentiality clause,

as there are genuine issues of material fact that must be determined.

Further, the trial court erred in granting summary judgment on the tortious

interference with a contract issue. The trial court did not err in granting

summary judgment on any of the remaining issues.

We affirm in part, reverse in part and remand for further proceedings

consistent with this opinion. In doing so, we instruct the trial court to be

mindful of the restrictions expressed in our discussion of Issues I, III and

IV.

Id. at *16.

4

Implicit in Think Tank I, but not stated in its conclusion, is that the claim for

misappropriation of trade secrets was included with the claims for breach of the covenant

not to complete, for breach of the confidentiality clause, and for tortious interference with

a contract that remained for trial after our review of the summary judgment rendered by

the trial court. As we stated in footnote four to the opening of Issue II. Breach of

Contract: Confidentiality Clause:

The defendants equate the confidentiality clause issue with the

misappropriation of trade secrets issue as raised in the court below and as

framed by the parties in their appellate briefs. We agree that the

misappropriation of trade secrets issue is subsumed by the confidentiality

clause issue. We will examine the validity of the confidentiality clause

under the summary judgment standard of review, and our decision on this

issue stands as a decision on the claim for misappropriation of trade secrets.

Id. at *7. We concluded, as to the confidentiality clause,

[T]here is a genuine issue of material fact that prevents the grant of

summary judgment on this issue. The fact finder must determine whether

the items contained in the confidentiality clause are trade secrets that may

be protected. If they are not, then Think Tank has not asserted that the

covenant to not compete asserts a legitimate interest that may be protected

and/or that the former employees have gained a unique competitive

advantage or ability to harm Think Tank.

Id. at *9. We also necessarily found that the same issue existed as to the claim for

misappropriation of trade secrets.

In the course of our opinion, we noted that Think Tank had submitted a report by

its economics expert, Benjamin S. Wilner. We stated as follows with respect to Wilner’s

report:

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In an apparent attempt to create a genuine issue of material fact pertaining

to customers in addition to the nine referred to above,[2] Think Tank points

to a report prepared by a third party that lists the customers it lost in the

years following the former employees’ transfer to Chester, and it proposes

that some of these losses could be attributable to breach of covenants. The

supposed losses that “could be attributable to breach” compose the entire

result of seven years of discovery. In an industry where even Think Tank’s

third party expert documents that Think Tank normally retains customers

for an average of only 2.3 years, we cannot view the report as anything but

speculative. In short, the report says little more than that even though

Think Tank lost almost all of its key employees and it normally loses a

percentage of its customers each year, Think Tank guesses that some of the

lost customers must be attributable to the defendants’ actions. Mere

speculation cannot create genuine issues of material fact to defeat summary

judgment. See Beatty v. LaFountaine, 896 N.E.2d 16, 20 (Ind. Ct. App.

2008) (holding that mere speculation, guesses, supposition, and conjecture

“are not sufficient to create a genuine issue of material fact to defeat

summary judgment”), trans. denied.

Id. at *12.

While the appeal was pending, Wilner had produced a second report, entitled a

“Supplementary Expert Report,” examining sales information that Chester had provided.

Appellant’s Supp. App. p. 301. After we issued Think Tank I, Wilner issued a third

report, entitled a “Rebuttal Expert Report.” Appellant’s App. p. 158. Next, Chester

moved the court to exclude Wilner’s testimony from trial. Think Tank filed a response,

and Chester filed a reply. The trial court initially scheduled a hearing on Chester’s

motion. However, the court ultimately granted the motion without a hearing, quoting the

above paragraph from this Court’s opinion in Think Tank I and concluding that Wilner’s

testimony would be inadmissible at trial. Next, the court granted Think Tank permission

2

In the first appeal, Think Tank identified nine customers as to which it claimed there was a genuine

issue of material fact regarding loss of net profits. We concluded that such an issue existed only as to

four of them: Braun Corporation, Lowell Public Library, Weil-McClain, and Methodist Hospital.

6

to pursue a discretionary interlocutory appeal. The parties jointly asked this Court to

accept this appeal, and the motions panel granted the parties’ request.

DISCUSSION AND DECISION

I. EXCLUSION OF EXPERT ECONOMICS TESTIMONY

Think Tank argues that nothing in this Court’s decision in Think Tank I rendered

Wilner’s testimony inadmissible, so the trial court should not have excluded it. Chester

responds that the trial court properly excluded Wilner’s testimony because it did not, in

Chester’s opinion, comply with the requirements for expert opinion evidence under

Indiana Evidence Rule 702.

A trial court’s determination regarding the admissibility of expert testimony is a

matter within its broad discretion and will be reversed only for abuse of that discretion.

Bennett v. Richmond, 960 N.E.2d 782, 786 (Ind. 2012). An abuse of discretion occurs if

the court’s decision is clearly against the logic and effect of the facts and circumstances

before the court, or if the trial court has misinterpreted the law. Bridgestone Ams.

Holding, Inc. v. Mayberry, 878 N.E.2d 189, 191 (Ind. 2007).

We start with Think Tank’s argument regarding the doctrine of law of the case.

Pursuant to that doctrine, an appellate court’s determination of a legal issue is binding on

the trial court and this court in any subsequent appeal in the same case and involving the

same facts. Dean V. Kruse Found. v. Gates, 973 N.E.2d 583, 590 (Ind. Ct. App. 2012),

trans. denied. The purpose of the doctrine is to minimize unnecessary relitigation of

legal issues once they have been resolved by an appellate court. Id. To invoke this

doctrine, the matters decided in the earlier appeal must clearly appear to be the only

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possible construction of an opinion. Id. Questions not conclusively decided in the earlier

appeal do not become law of the case. In re Guardianship of Stalker, 953 N.E.2d 1094,

1102 (Ind. Ct. App. 2011). Furthermore, unlike the related doctrine of res judicata, the

doctrine of law of the case is not a uniform rule of law but rather a discretionary rule of

practice. State v. Lewis, 543 N.E.2d 1116, 1118 (Ind. 1989).

Here, we stated as follows in Think Tank I with respect to Wilner’s report:

In an apparent attempt to create a genuine issue of material fact pertaining

to customers in addition to the nine referred to above, Think Tank points to

a report prepared by a third party that lists the customers it lost in the years

following the former employees’ transfer to Chester, and it proposes that

some of these losses could be attributable to breach of covenants. The

supposed losses that “could be attributable to breach” compose the entire

result of seven years of discovery. In an industry where even Think Tank’s

third party expert documents that Think Tank normally retains customers

for an average of only 2.3 years, we cannot view the report as anything but

speculative. In short, the report says little more than that even though

Think Tank lost almost all of its key employees and it normally loses a

percentage of its customers each year, Think Tank guesses that some of the

lost customers must be attributable to the defendants’ actions. Mere

speculation cannot create genuine issues of material fact to defeat summary

judgment. See Beatty v. LaFountaine, 896 N.E.2d 16, 20 (Ind. Ct. App.

2008) (holding that mere speculation, guesses, supposition, and conjecture

“are not sufficient to create a genuine issue of material fact to defeat

summary judgment”), trans. denied.

Think Tank I, No. 64A03-1003-PL-172, at *12 (emphasis added).

Thus, the context of our discussion of Wilner’s report in Think Tank I was whether

it established causation for the loss of some of Think Tank’s customers, and we

concluded that the report did not give rise to a dispute of material fact on that point.

After remand, Wilner prepared a third report, the Rebuttal Expert Report. Rather

than address the loss of some of Think Tank’s customers as he did in his first and second

8

reports, Wilner’s third report focused upon damages that he concluded Think Tank

sustained due to the loss of four specific customers identified in Think Tank I, in addition

to general profit erosion caused by the defection of Think Tank’s former employees to

Chester. Thus, Wilner’s third report, and his proposed testimony at trial, addresses

questions not conclusively decided in the earlier appeal. As a result, we conclude that the

doctrine of law of the case does not bar the admission of Wilner’s testimony at trial. See

Gates, 973 N.E.2d at 591 (determining that law of the case did not bar the court’s

consideration of whether forfeited earnest money constitutes liquidated damages or a

penalty because that issue was not expressly decided in the prior appeal).

Next, we turn to whether Wilner’s expert testimony is admissible under Indiana

Evidence Rule 702. As a preliminary matter, Chester argues that Think Tank is barred

from addressing Rule 702 in this appeal because Think Tank did not discuss that rule in

its initial appellate brief. We disagree. Chester presented argument under Rule 702 in its

Appellees’ Brief, and Think Tank properly responded to Chester’s argument in its Reply

Brief. See Ind. Appellate Rule 46(C) (“The appellant may file a reply brief responding to

the appellee’s argument.”). Furthermore, the parties extensively briefed the applicability

of Evidence Rule 702 during trial court proceedings, so we are considering an issue that

was presented to the trial court.3

Rule 702 provides:

3

The appealed order is ambiguous as to whether the trial court based it on the quoted portion of Think

Tank I or on 702 principles, although it did recite: “The Court, having reviewed the Motions and

Memorandum [sic] of the parties, now grants the motion to exclude the evidence of Doctor Wilner.”

Appellant’s App. p. 103.

9

(a) 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.

(b) Expert scientific testimony is admissible only if the court is satisfied

that the scientific principles upon which the expert testimony rests are

reliable.

In this case, both Wilner’s qualifications as an expert and the reliability of the

scientific principles upon which his testimony rests are in dispute.

A. WILNER’S QUALIFICATIONS

Chester argues that Wilner is not qualified to render an opinion on causation. The

trial court is considered the gatekeeper for the admissibility of expert opinion evidence

under Rule 702(a) and (b). Person v. Shipley, 962 N.E.2d 1192, 1194 (Ind. 2012).

Indiana Evidence Rule 702(a) requires that an expert be qualified as such by evidence of

knowledge, skill, experience, training, or education. State Auto Ins. Co. v. DMY Realty

Co., 977 N.E.2d 411, 423 (Ind. Ct. App. 2012). Therefore, before an expert may testify

about a subject, the proponent of the expert must show that the expert is competent in that

subject. Id. In addition, the proponent of expert testimony must show that the subject

matter is distinctly related to some scientific field, business, or profession beyond the

knowledge of the average layperson. Jackson v. Trancik, 953 N.E.2d 1087, 1092 (Ind.

Ct. App. 2011).

Here, Wilner’s curriculum vitae indicates that he has a Ph.D. in “Managerial

Economics and Decision Science.” Appellant’s App. p. 168. In addition, he has over

fifteen years of professional experience, including work as a professor of finance, as an

10

economist, and as a professional expert in business valuation, statistics, and financial

damages, among other areas. Wilner has also published articles on economic and

business matters and has given presentations to federal agencies, universities, and

professional organizations on business valuation and other economic issues. His

knowledge of economics and business valuation is beyond the knowledge of the average

layperson. Therefore, Wilner’s extensive education, training, and experience qualify him

as an expert witness with respect to economics and business valuation matters. See

Jackson, 953 N.E.2d at 1092 (determining that a witness was qualified as an expert in

medical billing matters based on her experience, training, and education in her field).

B. RELIABILITY OF SCIENTIFIC PRINCIPLES

The parties disagree as to whether Wilner’s expert opinions are based on reliable

scientific principles pursuant to Evidence Rule 702(b). The court must make a

preliminary assessment of whether the reasoning or methodology underlying an expert’s

testimony is scientifically valid and whether that reasoning or methodology can be

applied to the facts in issue. Person, 962 N.E.2d at 1196. As part of this process, Rule

702(b) directs the trial court to consider the underlying reliability of the general

principles involved in the subject matter of the testimony, but it does not require the court

to reevaluate and micromanage each subsidiary element of an expert’s testimony within

the subject. Norfolk S. Ry. Co. v. Estate of Wagers, 833 N.E.2d 93, 103 (Ind. Ct. App.

2005), trans. denied. The proponent of expert testimony bears the burden of establishing

the reliability of the scientific principles upon which the testimony is based. Turner v.

State, 953 N.E.2d 1039, 1049 (Ind. 2011).

11

There is no specific test for determining whether expert scientific testimony

satisfies Rule 702(b). Franciose v. Jones, 907 N.E.2d 139, 146 (Ind. Ct. App. 2009),

trans. denied. Federal courts have adopted the standard set forth in Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

Indiana courts are not bound by Daubert when analyzing evidence under Indiana

Evidence Rule 702(b), but we find the principles stated in that case to be helpful. Turner,

953 N.E.2d at 1050. Thus, in determining whether evidence is admissible under Rule

702(b), we may consider whether the theory or technique can be and has been tested,

whether the theory has been subjected to peer review and publication, whether there is a

known or potential error rate, and whether the theory has been generally accepted within

the relevant field of study. Id. at 1048 (citing Daubert, 509 U.S. at 593-94). The focus of

the admissibility test is on the methodology of the theory or technique, not on the

conclusions generated. Miller v. Bernard, 957 N.E.2d 685, 693 (Ind. Ct. App. 2011).

Furthermore, our Supreme Court’s adoption of Rule 702 reflected an intent to liberalize,

rather than to constrict, the admission of reliable scientific evidence. Turner, 953 N.E.2d

at 1050.

In this case, after this Court issued Think Tank I, Wilner produced the Rebuttal

Expert Report referenced above. He reviewed numerous documents provided by Think

Tank and Chester and spoke with Think Tank’s president and counsel in the course of

preparing his report. In the report, Wilner calculated Think Tank’s damages in two

categories: lost sales to four specific customers and general profit erosion caused by the

defection of Think Tank’s former employees. He explained the basis for his calculations,

12

identified the assumptions underlying his calculations, and the reasons why he compared

certain data. He also took into account other potential causes for Think Tank’s losses,

calculating the effect of a 2002 “inventory adjustment” that was unrelated to Chester’s

actions. Appellant’s App. p. 159. Wilner indicated that his overall methodology was

based on “the benchmark method” as described in a publication from the American

Institute of Certified Public Accountants captioned “Calculating Lost Profits.” Id. at 163;

Appellant’s Supp. App. p. 458. Chester’s economics expert agreed that the benchmark

method is a generally-accepted tool for calculating damages and has used the method

himself. Appellant’s Supp. App. p. 426. In a deposition, Wilner also characterized his

work as “an event study,” which he asserted is “standard in economics and finance.”

Appellees’ App. p. 73.

In addition, Wilner used the “yardstick approach” to calculate general profit

erosion. Appellees’ App. p. 84. This method of damage calculation is “well accepted.”

Fishman v. Estate of Wirtz, 807 F.2d 520, 551 (7th Cir. 1986); see also Appellant’s Supp.

App. pp. 376, 390, 404 (presentations from accounting conferences describing the

yardstick method as one of several accepted methods for calculating damages). Thus,

Wilner’s conclusions are based on scientifically valid, reliable theories within the field of

economics. Consequently, to the extent the trial court’s ruling rests on Indiana Evidence

Rule 702(b), we conclude that the trial court overstepped its gatekeeper role and abused

its discretion by excluding Wilner’s testimony. See Miller, 957 N.E.2d at 694-95

(determining that the court erred by excluding an expert witness’s testimony because any

13

failure by the expert to consider all of the relevant facts went to the weight of the expert’s

opinion, not its admissibility).

Many of Chester’s objections to Wilner’s opinions as stated in the rebuttal report

are, in essence, claims that Wilner failed to express an opinion on causation. For

example, Chester asserts that Wilner “fail[ed] to identify the profit erosion caused by

unlawful activity” and “simply assumed that Chester’s sales to these customers would

equal Think Tank’s lost sales.” Appellees’ Br. pp. 35, 39. However, Think Tank is not

obligated to prove every element of its claims through expert opinion. Indeed, Wilner

stated in his deposition that his rebuttal report was limited to the question of damages,

and Think Tank concedes, “Wilner has not opined on causation.” Appellant’s Reply Br.

p. 19. To the extent that the finder of fact concludes that Wilner’s testimony fails to

establish the causation element of Think Tank’s claims, Think Tank will have to prove

causation through other evidence, or its claims will fail and Wilner’s expert opinion on

damages will be pointless. See Saks Fifth Ave., Inc. v. James, Ltd., 630 S.E.2d 304, 312

(Va. 2006) (reversing verdict for plaintiff where the plaintiff’s expert provided evidence

as to damages, but plaintiff failed to otherwise demonstrate proximate causation between

the defendants’ conduct and claimed damages).

Chester further argues that Wilner’s opinion is flawed because Wilner based his

understanding of the facts solely upon conversations with Think Tank’s president.

However, it is undisputed that Wilner reviewed numerous documents provided by Think

Tank and Chester in the course of preparing his rebuttal report. Furthermore, Wilner said

in his deposition that he learned the facts of the case from “the record and [Think Tank’s

14

president].” Appellees’ App. p. 82. Thus, Wilner’s opinion is not based solely upon

what Think Tank told him. Chester further argues that Wilner ignored information,

erroneously changed his analytical model between issuing his first report and his rebuttal

report, made flawed assumptions in evaluating lost sales for the four customers, and

failed to independently investigate the case. These points go to the credibility and weight

to be given to Wilner’s testimony at trial. Once an expert’s scientific theories are

determined to be reliable under Rule 702, the crucible of cross-examination is the means

of exposing dissimilarities between the actual evidence and an expert’s scientific theories.

Turner, 953 N.E.2d at 1051.

For the reasons stated above, the trial court’s ruling that Wilner’s testimony is

inadmissible at trial is reversed.

II. CLARIFICATION OF THINK TANK I’S HOLDING ON DAMAGES

Think Tank contends that Think Tank I requires clarification as to whether all four

of its surviving claims have limits as to damages. Chester responds that Think Tank

should have sought clarification by filing a petition for rehearing or a petition for transfer,

and the deadlines for those petitions have expired.

This case is already over a decade old, having been originally filed in Lake County

in 2002. Furthermore, the case is being prepared for trial, and clarification of damages

will facilitate a swifter final judgment. Finally, the parties currently dispute the extent of

the ruling in Think Tank I, because Chester argues in this appeal that Think Tank is

barred by the holding in Think Tank I from presenting a claim for damages resulting from

profit erosion. Consequently, we will address the issue.

15

Stated simply, four of Think Tank’s claims survived summary judgment: breach

of a covenant not to compete, breach of a covenant of confidentiality, misappropriation of

trade secrets, and tortious interference with contract. In Think Tank I, we noted, “The

proper measure of damages for breach of a covenant is the plaintiff’s lost net profits.”

No. 64A03-1003-PL-172, at * 9. Next, we concluded that Think Tank had established a

dispute of material fact as to lost profits arising from Chester’s relationship with four

specific customers. Consequently, we limited the damages for Think Tank’s claim for

breach of the covenant not to compete to lost profits in relation to those four customers.

This holding also applies to Think Tank’s claim for breach of a covenant of

confidentiality. Similarly, with respect to Think Tank’s claim for tortious interference

with contract, we determined that the claim only survived summary judgment as to the

same four customers. Id. at *14. It stands to reason that Think Tank’s damages for

misappropriation of trade secrets is also limited to those four customers. However, we

said nothing about any measure of damages for tortious interference with contract or for

misappropriation of trade secrets. Nothing in Think Tank I should be understood to limit

or define damages under those two claims.

Finally, to the extent that Wilner’s profit erosion analysis is based solely on the

departure from Think Tank of the defendant employees and their subsequent employment

by Chester, the analysis may be inadmissible because the defendant employees were free

to leave and become employees elsewhere. They committed no wrong, contractually or

otherwise, against Think Tank merely by leaving.

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CONCLUSION

For the reasons stated above, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

Reversed and remanded.

BAILEY, J., and DARDEN, S.J., concur.

17