Accounting Expert’s Opinions on Lost Profits Admitted
Posted on October 6, 2025 by Expert Witness Profiler
Plaintiffs Hadek Protective Systems B.V. and Hadek Protective Systems, Inc. (collectively “Hadek”) asserted in this action that Defendant Ergon Asphalt & Emulsions, Inc. (“Ergon”) breached a Master Agreement between the parties regarding the sale and distribution of PENNGUARD® Block Lining System Products made by Ergon (the “Master Agreement”).
By its choice, Hadek’s sales were limited to PENNGUARD® Block 55 with a 1.5 or 2.0-inch thickness. The parties disputed the nature and timing of the termination of the Master Agreement.Thereafter, Hadek sued Ergon for breach of contract and tortious interference. Hadek claimed that Ergon’s conduct caused it to lose certain sales opportunities of PENNGUARD® products.
In connection with its damages claims, Hadek retained Melissa Bizyak as an expert witness. Her report, and the opinions expressed therein, are at issue here. In short, Ergon asserted that she must be excluded as an expert because she is unqualified to render the opinions she has expressed, that her opinions are unreliable and that her opinions do not fit the facts of this case.
Accounting Expert Witness
Melissa Bizyak, CPA, ABV, CFF, CVA who joined Grossman Yanak & Ford, LLP in 1997, has practiced in public accounting for nearly 20 years. She has significant experience in providing services for privately held concerns and their owners.
Bizyak’s business valuation experience is diverse, with clients including both private and publicly held companies in a wide variety of industries. She has performed valuations for various purposes such as financial reporting, equitable distribution, buy/sell transactions and dissenting shareholder disputes, employee stock ownership plans (ESOPs), value enhancement, and gift and estate tax strategies.
Discussion by the Court
Ergon argued that Bizyak is not qualified to render opinions in this case. Its contention is based on several factors. First, Ergon argued that Bizyak’s report and deposition testimony include impermissible legal conclusions on issues of contract interpretation and performance, matters that are beyond her expertise as an auditor. By way of example, Ergon noted that Bizyak makes certain representations regarding the exclusive territory of the Master Agreement, Hadek’s exclusivity and first right to pursue opportunities in its territory, Ergon’s obligations under the Master Agreement and the Agreement’s term more generally.
Ergon also argued that Bizyak is unqualified to provide opinions on sales and marketing of the at-issue glass block lining products in Asia. Ergon bases this contention on the fact that Bizyak has no relevant experience in this realm, did no independent research on this industry and merely accepted the information that was provided by Hadek.
However, the Court found that Bizyak is qualified to render the opinions expressed in her report. Specifically, Bizyak possesses the required “specialized knowledge” through her education, background and experience to render opinions about lost profits. Moreover, she is not being offered as an expert on the glass block lining industry, but on the calculation of Hadek’s damages. Hadek is correct that as an expert, Bizyak is free to make certain assumptions regarding liability issues for purposes of expressing opinions on damages and may rely on information supplied by Hadek in doing so.
As it relates to the issues of reliability and fit, the Court concluded that despite the parties’ extensive and well-done briefing, a Daubert hearing is necessary to resolve these issues.
Held
The Court denied in part Ergon’s motion to exclude the testimony of Hadek’s expert Melissa Bizyak.The Court defers ruling on the remainder of Ergon’s motion pending the completion of a Daubert hearing.
Key Takeaway:
Bizyak possessed the requisite specialized knowledge to offer expert opinions in this case. As reflected on her resume, she is a certified public accountant a certified valuation analyst, and is certified in financial forensics. She has been qualified as an expert in a number of cases and several of her prior expert engagements have involved the calculation of lost profits.
Thus, Ergon’s arguments are misplaced and if anything, Ergon is actually raising a reliability issue, not challenging Bizyak’s qualifications.
Case Details:
| Case Caption: | Hadek Protective Systems B.V. Et Al V. Ergon Asphalt & Emulsions, Inc. |
| Docket Number: | 2:22cv1421 |
| Court Name: | United States District Court for the Western District of Pennsylvania |
| Order Date: | September 29, 2025 |
