Khushaim v. Tullow, Inc., N15C-11-212 PRW

In January 2013 plaintiff Hasan Khushaim contracted with defendant Tullow, Inc. (d/b/a Appostrophic) to design and develop two mobile games (Arabic card games Trix and Belote) for $75,000 payable in four installments under a Project Development Contract governed by Delaware law.
Khushaim paid the first three installments and an additional $20,000 for upgrades but alleges Tullow never completed deployment, did not deliver final versions, and refused to return copyrighted designs.
Khushaim seeks damages for breach of contract, including $27,000,000 in claimed future lost subscription profits from the games.
Tullow moved for partial summary judgment to limit damages to $75,000, arguing Khushaim has no admissible evidence supporting the $27 million lost-profits claim and challenging the qualifications/reliability of Khushaim’s proposed expert and market report.
The court granted limited discovery solely on the lost-profits issue, received supplemental briefs and exhibits (including an expert report and a market research report), and considered whether Daubert analysis should be applied at the summary judgment stage.
The court denied Tullow’s motion, concluding Daubert-style exclusion at summary judgment would be premature on the record and that a detailed admissibility inquiry (best suited to trial or a fuller record) was required before excluding the proffered expert evidence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Khushaim’s $27 million lost-profits evidence is admissible and supports breach damages	Khushaim proffers an expert report and market research to show lost subscription revenues with sufficient basis	Tullow contends the expert and market report are unreliable and inadmissible under Daubert, so no admissible proof of future profits exists	Denied: court found Daubert exclusion at summary judgment premature on this record and refused to strike the evidence now; factual reliability requires more developed record
Whether damages should be limited to contract payments made ($75,000)	Khushaim argues recoverable damages include projected future profits if proven	Tullow seeks limitation to amounts paid, arguing lack of admissible proof of lost profits	Denied: court declined to cap damages at summary judgment because Khushaim’s proffer could survive a Daubert challenge given further inquiry

Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (framework for admissibility of expert testimony)
M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d 513 (Del. 1999) (Delaware evidentiary standards for expert testimony)
In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994) (caution in excluding expert evidence that may be outcome-determinative)
Cortés-Irizarry v. Corporación Insular de Seguros, 111 F.3d 184 (1st Cir. 1997) (advising restraint applying Daubert at summary judgment)
Minner v. American Mortg. & Guar. Co., 791 A.2d 826 (Del. Super. Ct. 2000) (burden to establish expert testimony admissibility)
Nelson v. State, 628 A.2d 69 (Del. 1993) (cited regarding Rule 702 guidance)