it appears to me, in my legal opinion (note this is not the area of the law I work in) that SIGA is in good shape. PIP can be entitled to expectation damages only but it looks like the lower court has pretty much "painted itself into a corner"
page 37 of Supreme Court opinion
99 An expectation damages award presupposes that the plaintiff can prove damages with reasonable certainty. Callahan v. Rafail, 2001 WL 283012, at *1 (Del. Super. Mar. 16, 2001) (citation omitted) (“It is well-settled law that ‘a recovery for lost profits will be allowed only if their loss is capable of being proved, with a reasonable degree of certainty. No recovery can be had for loss of profits which are determined to be uncertain, contingent, conjectural, or speculative.’”).
Page 84-85 of lower court's opinion
Applying these precedents to the facts before me, I conclude that I cannot award PharmAthene the present value of its estimated lost profits on a license agreement that (1) would have contained the risk of receiving no profits and (2) was never consummated, because such an award would be speculative. Nevertheless, it is possible that, in an appropriate case, permissible expectation damages for breach of an agreement to negotiate in good faith may include the net present value of whatever the parties had, or in good faith demonstrably would have, agreed to exchange at the time that the breach occurred.
Having carefully reviewed the testimony and reports of PharmAthene’s experts, including especially Baliban, I find that PharmAthene’s claims for expectation damages in the form of a specific sum of money representing the present value of the future profits it would have received absent SIGA’s breach is speculative and too uncertain
No it does not supercede. Court held lower court erred in using estoppel and equitable relief and remanded and basically clarified Delaware law that damages CAN be awarded for a type II contract if damages can be calculated with reasonable certainty and not speculative under contract law. The lower court DID address whether damages were too speculative under the concept of expectant damages and found they were speculative. The Supreme Court opinion does NOT supersede this. How does the lower court now find that damages under breach of contract were not speculative at the time of breach when he already found they were in his original decision?
"Nevertheless, it is possible that, in an appropriate case, permissible expectation damages for breach of an agreement to negotiate in good faith may include the net present value of whatever the parties had, or in good faith demonstrably would have, agreed to exchange at the time that the breach occurred."
Did the Supremes say this?? Did Parsons say this?? The whole thing boils down to this!! If EXPECTED value in some cases can equate to PRESENT value then the lower court will use this as their justification to stick it to SIGA. If they are forced to use expected value in a probabilistic, lottery sense, then SIGA wins (because by nay measure the expected value of the drug was much lower back then than it is now). Moreso, no expected value existed at the time with "reasonable certainty", so it appears to no expectation damage could be awarded.
Still, it all comes down to playthrough's quoted statement - if it holds any water (expected = present) then SIGA is in bad shape.