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Lost Profits

Missouri’s Economic Loss Doctrine Bars a Negligent Misrepresentation Claim Against a Product Manufacturer for Recommending a Product Allegedly Unfit for its Intended Purpose

The economic loss doctrine is a judicially crafted rule that defines the remedies of a purchaser of a product who suffers only economic harm when that product fails to perform up to expectations. Economic harm is defined as damage caused by the allegedly defective product, including its diminished value and any lost profits caused by the product’s failure to perform as expected.

A Friendly Reminder About Lost Profits and Consequential Damages Waivers

I recently had occasion to litigate the issue of whether a client was barred by a contractual consequential damages waiver from recovering lost profits. I had never given the issue much thought, but the contract provision was a problem for our client, so I needed a workaround.
As it turns out, lost profits are not (always) consequential damages, and therefore recovery of lost profits is not barred by a consequential damages waiver unless specifically called out.

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