Christopher J. Banks

The ability to gauge lost profits in determining a damages award is at the heart of Banks' effort to fight an appeal by Actelion Ltd., a Swiss biopharmaceutical firm, in a high-stakes case against his client, Asahi Kasei Pharma Corp.

"There is the potential for some interesting law," said Banks, who first-chaired the trial team on Asahi's behalf. "People will be interested in how this is resolved."

In the initial case, the issue was whether Actelion, and associated defendants, interfered with a 2006 license agreement, quashing Asahi's development of a promising new drug that would have treated such potentially deadly ailments as pulmonary arterial hypertension. Asahi Kasei Pharma Corp. v. Actelion Ltd., CIV-478533 (San Mateo Super. Ct., filed Nov. 19, 2008).

In 2011, the jury found for Asahi, initially resulting in a $577 million judgment, later reduced to $416 million - ranked among the largest in the nation that year.

Now on appeal, Banks said, "It's slow going and a pretty massive undertaking," involving a 155-page brief that covers everything in the complex case.

At the core of the appeal, Actelion is challenging the damages that were awarded, based on lost profits, as being too speculative, Banks said.

Actelion's attorneys made the same arguments at trial, he said. "We made sure we had admissible evidence. Now, defending on appeal, we believe it is an advantage that we were on the case from beginning to end. We know the record and that we prepared and tried it with the proper legal standards in mind."

Now, he added, "We're marshaling all of that evidence again - from a three-month trial that included 55 witnesses and 609 admitted trial exhibits. There was more than enough evidence for the jury to have reached its conclusions."

A hearing is anticipated to be scheduled sometime this summer.

Banks said that he is encouraged by a state Supreme Court ruling that came down last year involving lost profits, confirming the trial courts' wide discretion to admit or exclude expert damages testimony. Sargon Enterprises Inc. v. University of Southern California, S191550.

In his case, Banks said he relied on expert witness testimony, which the judge found admissible.

"Previous cases establish that there are certain types of evidence that can be considered to prove lost profits," Banks said, "and it's in the trial court's discretion to admit or exclude such evidence, so long as the evidence meets those threshold requirements."

- PAT BRODERICK