Both parties, in 2006, valued the prospective sales at more than1 billion. That makes it hard for SIGA to argue that its purely speculative. Sure its not "certain" but it only has to be a reasonable expectation. When SIGA had buyers remorse, and acted in bad faith, doesn't that suggest that SIGA placed a large value on the drug. That too argues against SIGA's position that the value was purely speculative. A reversal has to conclude that the Judge's finding is clearly erroneous. Not an easy standard, particularly where the entire litigation says that SIGA acted in bad faith. The ability to quantify the reasonable expectation of the parties is facilitated because the fault lies with SIGA. If this was a simple case where there wasn't a bad faith finding, the argument that the amount is speculative would have much more force.
The Judge found that foreign or "rest of the world" sales were too speculative. Would it be surprising if PIP argued that there was more than enough information to quantify some amount for the rest of the world sales? The decision that the foreign sales were too speculative makes the opinion easier to affirm. The Judge split the baby, and that is not going to be easy to get a reversal.
It is not so clear to me whether a reversal would determine that there is no basis for a lump sum damage award and award PIP essentially nothing, or would remand it for a further fact finding. The appeals court will try hard not to remand it in my opinion.
Look at the details of what was in fact occurring with government procurement of biodefense products and especially those for greatest perceived bioterror agent (smallpox). Compound that with the actual bioterror attacks that occurred with Anthrax post 9/11 and ask yourself whether it is reasonable to compare ST-246 to other pharmaceuticals? Other pharmaceuticals require extensive testing preclinical studies of mutagenicity, carcinogenicity and cardiotox, along with numerous human studies first in healthy patients to establish safety, then in patients with the targeted disease state to further gather evidence of safety along with measurements of initial efficacy, and finally confirmed through larger scale studies to confirm and define with reasonable certainty the risk/benefit profile of the drug for the targeted indication. Then assuming all has gone well, it requires an NDA to be reviewed and approved by the FDA before the drug can ever be sold. For biodefense there are less extensive tests, and no approval required before receiving government contracts that have consistently been measured in the hundreds of millions or more. Those contracts fund acquisition and stockpiling of the drug while also providing capital required to fund the studies that will be needed before an NDA is ever submitted. It is not uncommon for Govt. to purchase huge stockpiles years before FDA approval. Is that really a reasonable comparison?
Don't allow bias to blind you to fact. Dig deeper, build knowledge, and invest on that knowledge not on opinion/conjecture.