Opinion
Case No. 1:00-CV-787
March 7, 2003
OPINION
I. Background
In this case, Plaintiff, Lake Michigan Contractors ("LMC"), claims that Defendant Bay Shipbuilding Company ("BSC"), breached its agreement with LMC to construct a dredge (the "Dredge") on a time and materials basis. LMC asserts that BSC was inefficient and, therefore, spent an excessive amount of time on the Dredge. This case was tried to a jury from December 9, 2002, through December 28, 2003, with some time off for the Christmas holiday. BSC moved for judgment pursuant to Rule 50(a) of the Federal Rules of Civil Procedure, both at the conclusion of LMC's case and at the close of all of the evidence. The Court heard argument but deferred ruling on the motions. On December 28, 2003, the jury rendered a verdict in favor of LMC in the amount of $1,827,592 in damages as a result of BSC's inefficiency. The Court entered the verdict but did not enter judgment for LMC.
LMC sued both Bay Shipbuilding Company and its parent company, The Manitowoc Company, Inc. Because the claim is asserted primarily against Bay Shipbuilding Company, the Court will refer only to Bay Shipbuilding Company in this Opinion.
On December 31, 2002, the Court entered an Order granting BSC until January 17, 2003, to file a renewed motion for judgment as a matter of law and/or motion for new trial. BSC has filed both a motion for judgment as a matter of law pursuant to Rule 50(b) and a motion for new trial pursuant to Rule 59(a) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court will grant BSC's motion for judgment as a matter of law and enter judgment in favor of BSC. In the alternative, the Court will grant BSC's motion for new trial.
II. Analysis
The underlying facts of the case have been set forth in the Court's prior opinions and will not be repeated in detail here.
A. Motion for Judgment as a Matter of Law
The issue raised by a Rule 50 motion is whether there is sufficient evidence to create a question of fact for the jury. Warkentien v. Vondracek, 633 F.2d 1, 6 (6th Cir. 1980). In diversity cases, the Sixth Circuit requires that district courts apply the state standard of review in ruling on motions for judgment as a matter of law based upon the sufficiency of the evidence. Morales v. Am. Honda Motor Co., 151 F.3d 500, 506 (6th Cir. 1998). This action is governed by Wisconsin substantive law, which therefore provides the proper standard of review. The standard for motions challenging the sufficiency of the evidence is as follows:
No motion challenging the sufficiency of the evidence as a matter of law to support a verdict, or an answer in a verdict, shall be granted unless the court is satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such party.
Wis. Stat. § 805.14(1); see Greenlee v. Rainbow Auction/Realty Co. v. Farmers Merchs. Bank, 202 Wis.2d 653, 662, 553 N.W.2d 257, 261 (Wis.Ct.App. 1996). This standard applies to motions based upon the sufficiency of the evidence made both at the close of the plaintiffs evidence and at the close of all the evidence. Nunley v. Kloehn, 888 F. Supp. 1483, 1485 (E.D. Wis. 1995).
In reviewing the evidence, the trial court is guided by the proposition that "[t]he credibility of witnesses and the weight given to their testimony are matters left to the jury's judgment, and where more than one inference can be drawn from the evidence," the trial court must accept the inference drawn by the jury.Richards v. Mendivil, 200 Wis.2d 665, 671, 548 N.W.2d 85, 88 (Wis.Ct.App. 1996) (quoting Bennett v. Larsen Co., 118 Wis.2d 681, 706, 348 N.W.2d 540, 554 (1984)).
1. BSC Is Entitled to Judgment as a Matter of Law Because LMC's Evidence Is Insufficient to Show that BSC Spent an Unreasonable Number of Hours on the Construction of the Dredge.
Stated differently, LMCs evidence failed to show that BSC was unreasonably inefficient.
LMC's claim, as set forth in its complaint, is that BSC breached the time and materials contract by failing to construct the Dredge in a "cost effective manner." (Compl. ¶ 5.) Initially, LMC sought to establish its claim through the testimony of its expert witness, Leonard Willis, who offered to testify regarding the relative efficiency and inefficiency of the parties during the construction process. In an Opinion and Order issued on May 29, 2002, the Court granted BSC's motion to exclude Willis' testimony pursuant to Rule 702 of the Federal Rules of Evidence. The Court concluded that Willis' testimony was unreliable, because Willis could not explain the methodological basis for his conclusions regarding the relative efficiency and inefficiency of the parties. This Court also noted that because the issue was whether BSC charged LMC for too many hours in constructing the Dredge, LMC would have to establish some basis for the jury to determine whether the time BSC spent on the Dredge was excessive in light of the circumstances BSC encountered.
LMC also alleged that BSC breached the contract by failing to complete the work in BSC's enclosed fabrication shop and failing to complete the Dredge in a timely manner. (Compl. ¶ 5.) LMC abandoned those claims at or prior to trial and proceeded solely on the claim that BSC was unreasonably inefficient in constructing the Dredge.
The Court suggested that excessive hours could be demonstrated by first comparing BSC's actual hours against a baseline number, such as the number of hours required to construct the Dredge under perfect conditions (starting with — a complete set of plans and specifications), and then explaining why the number of hours spent by BSC was unreasonable under the circumstances encountered during construction.
Faced with the exclusion of its expert's testimony, shortly before trial, LMC disclosed a new method of proving damages. Specifically, LMC sought to establish, through the deposition testimony of LMC's owner, Joe Walsh ("Walsh"), that BSC's representative, Patrick O'Hern ("O'Hern"), told Walsh in April 2000 that it would cost $4 million to complete the Dredge. LMC asserted that the $4 million estimate, together with the cost of work added after the date O'Hern made the $4 million estimate, provided a reasonable basis for the jury to determine that BSC was inefficient and charged LMC an unreasonable amount for the Dredge. In response, BSC filed a motion to preclude LMC from attempting to calculate damages using various methods identified in LMC's trial brief, including the method incorporating O'Hern's $4 million estimate.
In an Opinion and Order entered on May 21, 2002, the Court held that LMC's evidence failed to show that O'Hern's alleged $4 million estimate created a binding not-to-exceed contract.
In its motion to preclude LMC from relying on various damage methods and in its Rule 50(a) motions after the close of LMC's evidence and after the close of all the evidence, BSC argued that LMC's methods of proving damages were improper under the Wisconsin Supreme Court's decision inMetropolitan Sewerage Commission v. R.W. Construction, Inc., 78 Wis.2d 451, 255 N.W.2d 293 (1977). BSC argued that R.W. Construction established that the proper method of proving damages in this case was the "reasonable cost" method. In R.W. Construction, the court set forth three methods of proving damages in an equitable adjustment or changed-conditions case: (1) the "reasonable cost" method; (2) the "jury type verdict" method; and (3) the "total cost" method. Id. at 462-66, 255 N.W.2d at 298-300. The court held that the reasonable cost method is the preferred method, but sanctioned the use of the jury type method in appropriate circumstances.Id. at 462, 255 N.W.2d at 298-99. The reasonable cost method measures damages as the difference between the reasonable cost of the work under the actual conditions encountered by the contractor and the cost of the work if the materially different or unforseen conditions had not been encountered. Id. A contractor may use this method to recover excess costs only to the extent such costs were not the result of the contractor's deficient bidding or performance. Id. In contrast, the "jury verdict" and "total cost" methods are appropriate where the nature of the case makes it difficult or highly impractical for the contractor to prove damages with exactness or mathematical precision. Id. at 462-65, 255 N.W.2d at 299-300. However, these methods of proof are available only where liability is clear, or in other words, where the contractor is not responsible for the added expense. Id.
As indicated during trial, and specifically during oral argument on BSC's Rule 50(a) motions, the Court declines to rely too heavily upon R.W. Construction in this case. Because of material factual differences, attempting to apply R.W. Construction here is somewhat like trying to fit a square peg into a round hole. R.W. Construction and many of the other cases cited by BSC are equitable adjustment cases in which the contractor was seeking additional amounts in excess of the contract price due to conditions which were not known or foreseeable to the contractor at the time it prepared its bid or estimate. In contrast, the contractor in this case has been fully paid (except for the amount BSC claimed in its counterclaim) and the owner is seeking to recover part of the price paid on the basis that the contractor was inefficient and spent an unreasonable number of hours completing the work. In the former case, the contractor's bid is generally the starting point, and the contractor has the burden of showing that the excess costs it is seeking to recover could not have been included in the bid and were not due to the contractor's performance. Here, the starting point is the number of hours BSC spent on the Dredge, and the burden is upon LMC to establish the point at which those hours became unreasonable. Moreover, this case, unlike the equitable adjustment cases, does not involve changed or unforseen circumstances, because there was never a defined scope of work in this case from which conditions could "change" — the reason for the time and materials contract in the first place. In spite of its differences, R.W. Construction is relevant in this case because it establishes that regardless of the method used to establish damages, the evidence offered in support of such damages must be reliable.
As was clear throughout trial, the linchpin of LMC's damage claim was O'Hern's $4 million estimate. Absent such evidence, the jury would have no basis, apart from speculation and conjecture, to establish an award of damages. This much was conceded by LMC's counsel during oral argument, when he acknowledged that the jury would have sufficient evidence from which to determine LMC's damages only to the extent it could rely upon O'Hern's $4 million estimate. In response to the Rule 50(a) motions, LMC argued, as it does again here in opposing the Rule 50(b) motion, that there was sufficient evidence to support the accuracy and reliability of O'Hern's estimate because: (1) O'Hern was BSC's chief estimator with over twenty years of experience; (2) in April 2000, when O'Hern made the estimate, the scope of the project was substantially determined, because the Dredge design had been completed and most of the changes had been made or the nature of the changes was known to BSC; (3) most of the owner-furnished equipment had been installed or had arrived at the shipyard and BSC was aware of the scope and nature of the equipment to be installed; (4) BSC had been working on the project for four months and O'Hern was actively involved in the construction; and (5) at the time O'Hern made the alleged estimate, he had in front of him tables and cost reports showing the costs already expended and the schedule of work to be completed. (Pl.'s Mem. Opp'n Defs.' Renewed Mot. at 15.) The only evidence LMC presented to establish the nature and circumstances of O'Hern's estimate was Walsh's deposition testimony. Walsh testified that O'Hern made the estimate during a meeting, in which Walsh told O'Hern that Walsh was considering removing the Dredge from BSC and having the remainder of the work completed at another shipyard. Walsh stated:
A Yes. I sat in there and said, "Pat, I don't want to leave the yard, but I've got to — you know, we've got to make a decision here. Either we're going to go off" — again, I expressed my — my displeasure with — with taking the vessel out of the building without completing everything that we could in the building, which was — there was still many things that could have been done, and that, you know, I was going to have to make that decision.
And this was something that built up over a period of time. It was — and they did cooperate in that, making the vessel — preparing the vessel so that it could be towed from Bay Shipbuilding to another facility.
Told them what we could do elsewhere and what my options were and that, you know, "This is where I'm at. I can get this thing done for, you know, a little bit less than $4,000,000 total with what — with what I've spent here and what I'll have to spend over there. Maybe it will go one way or another a little bit, but I need to have — I can't deal with a moving target and I need to get some commitment on you if I'm to take this thing and go from the floating dock to the graving dock. I need to know what this thing is going to cost to finish at Bay Ship. Otherwise, I have to leave the yard where I can have some control of my destiny."
Q And then what did he say?
A He said, "Let me look at it."
Q And what did he do?
A He walked out of the conference room and he got — he got the — the computer printouts of the — of the costs that generate these reports that Don [Rossetti] was — that simplified for me in handwritten form. And he looked at the number of manhours and the dollars and material. And — and — and he looked and he studied them for a while and he quoted the number of man-hours that were — were expended to that date. Those numbers, the 2.3 million, 2.3-and-change million was on his sheet that he was looking at. There was a number of man-hours. I can't remember what it was. There was a number of dollars . . .
. . . .
A . . . And Pat was — reviewing that sheet for a bit of time in the conference room, looking at the hours, looking at the materials. And he made the comment that looking at the dollars that were in the materials on that printout sheet . . .
But — and he said, "Well, I think we've got most of the materials in here," because it was a — it was a large number in the — mainly what Bay Ship was supplying was steel.
And — and so he looked at that and — and then he looked at the number of hours, man-hours expended to date. An then he — he — he tossed some — some numbers around on man-hours to complete the project. And he thought about it for a while. It wasn't something he just popped out. I mean, it was something — I — I assumed that he had been studying this prior to the meeting.
BY MR. NEEB:
Q So what did he say to you?
A He said something — if I had the computer sheet, I'd know. But he looked at the hours and he — and he came up with a number of man-hours to finish the — "This is how many more man-hours to finish the job and the materials are pretty much covered."
He put some more — a little more under materials. Came down to a number, which I don't know what it was. And he looked at it. Because I wasn't — he was across the table from me and looked at it and he said, "We should be able to finish this thing for $4,000,000."
And I said, "Can you finish it for $4,000,000, Pat? Because I need to know. I need to know before I — I've got to make a business decision whether I'm going to go off that floating dock in the water and go to McNally's or somewhere else or go into that graving dock that you know I don't want to go into."
He said, "Joe, we can finish this thing for $4,000,000." He said, "That's not" — and then he made it very, very clear. He said, "That's not including any of your owner-furnished suff, your engines, your box" — he said, "Those are all things you're supplying. That's your stuff. But Bay Ship's portion is $4,000,000."
. . . .
Q And just so that I am sure of this, are you saying that the commitment was that the total cost, including what had been previously paid, would not exceed 4,000,000, or are you saying that the cost to complete from mid-April on would not exceed 4,000,000?
A The total cost to complete, the 2.3 million [already expended] on the date that was — that I sat with Pat O'Hern. Plus, he came up with the — if I had a calculator — I know he — I keep thinking he said 30,000 man-hours that he had — he said, "I think 30,000 man-hours."
And we discussed how many more man-hours in his capacity. I assumed he — I would assume he would know how to estimate a job. An then he did the materials, and that came up and he said, "$4,000,000 total with Bay Shipbuilding, not including any of your owner-furnished stuff and not including any materials you may buy in excess or changes you may make."
(Walsh Dep. at 291-96, 301.)
This evidence was insufficient to support an award of damages, even construing Walsh's testimony in a light most favorable to LMC, because it fails to show that O'Hern made the estimate with the care and concern that a reasonably skilled estimator would use in arriving at a cost to complete the Dredge. Walsh's testimony shows that O'Hern's estimate was based upon nothing more than a cost report showing the amounts expended to date, as well as some numbers on man-hours, which O'Hern "tossed around." Walsh assumed that O'Hern had done the work to make an accurate estimate, but there is no evidence in the record to support this assumption. In fact, although O'Hern admitted that he made an estimate at some point during the construction process, he testified that he made the estimate in January 2000 and that the estimate was no more than a guess, because it was not based upon plans and specifications (because there were none) and that he did not price out the materials or labor to complete the job. O'Hern also testified that he was not aware of the state of construction at that time, was unaware of any changes or additions LMC intended to make, and did not consider other aspects of the job that would occur later in the job. Walsh's naked testimony regarding his assumptions about what O'Hern did or considered is insufficient to establish that the estimate was reliable. Moreover, LMC failed to present any evidence, including expert testimony, to show that the O'Hern estimate was accurate and reliable or to establish that scope of the remaining work as of the time O'Hern made the estimate was sufficiently defined to enable a reasonably skilled estimator to prepare an accurate estimate. At best, LMC's evidence shows that O'Hern's $4 million estimate was a number pulled out of thin air based on a guess, or, at worst, a salesman's attempt to keep the work. In either case, the evidence failed to establish a sufficiently reliable basis for an award of damages.
2. BSC Is Entitled to Judgment as a Matter of Law Because LMC Failed to Show that LMC Did Not Cause or Contribute to any Inefficiency or Unnecessary Hours as a Result of Inefficiency.
In this regard, this case is distinguishable from Amp-Rite Electric Co. v. Wheaton Sanitary District, 220 Ill. App.3d 130, 580 N.E.2d 622 (1991), California ex rel. Department of Transportation v. Guy F. Atkinson Co. 187 Cal.App.3d 25, 231 Cal.Rptr. 382 (1986), and other cases cited by LMC, because the contractors in those cases had prepared detailed bids based upon project designs and specifications defining the scope of the work at the beginning of the project. See Amp-Rite Elec., 220 Ill. App.3d at 136-38, 580 N.E.2d at 627-28; Guy F. Atkinson Co., 187 Cal.App.3d at 31 n. 5.
LMC asserts that it was not required to show that BSC was solely responsible for damages arising from inefficiency on the project, because under Wisconsin law, "a plaintiff in a breach of contract action is not required to demonstrate, for purposes of proving causation, the specific amount of the loss caused by the defendant." (Pl.'s Br. Opp'n Defs.' Mot. at 17 (citing Reiman Assocs., Inc. v. R/A Adver., Inc., 102 Wis.2d 305, 306 N.W.2d 292, 300 (Wis.Ct.App. 1981).) LMC claims that it was not necessary for it to show that it did not contribute to inefficiency and unnecessary hours because this is not a case in which a contractor is seeking an equitable adjustment under a fixed price contract based upon changed conditions, but rather a claim by an owner under a time and materials contract that the contractor was inefficient and spent too much time on the project. LMC's argument might carry more weight if LMC, as the owner, played no part in the construction after turning the project over to BSC. That, however, was not the case. It is undisputed that LMC and its representatives actively participated in, or were responsible for, making decisions that impacted various aspects of the construction throughout the course of the project. Moreover, while they were critical of BSC's efficiency, LMC's witnesses conceded that LMC contributed to at least some additional work and that changes, additions, and revisions to the project after April 17, 2000, and LMC's failure to provide detailed drawings and owner-furnished equipment on a timely basis hampered BSC's ability to proceed in an efficient manner.
LMC is correct that it was not required to concede that its actions affected BSC's ability to properly plan and carry out the construction of the Dredge. Naked denials, however, are not a substitute for evidence that a defendant's actions have caused the plaintiff damage. LMC's argument ignores a fairly basic tenant of contract law: a plaintiff claiming damages has the affirmative burden of showing that the breach was the proximate cause of the alleged damages. Reiman Assocs., Inc. v. R/A Adver., Inc., 102 Wis.2d 305, 320-21, 306 N.W.2d 292, 300-01 (Wis.Ct.App. 1981). Thus, apart from the question of whether LMC was required to show that it was not the cause of inefficiency and any resulting damages, it was incumbent upon LMC to introduce sufficient competent evidence showing that BSC's inefficiency caused damage, i.e., too many man-hours spent on the Dredge. See John E. Green Plumbing Heating Co. v. Turner Constr. Co., 742 F.2d 965, 967 (6th Cir. 1984). Because LMC failed to present any evidence to establish that BSC's actions or inactions caused damage to LMC, there was no basis for the jury's conclusion that LMC suffered damages as a result of BSC's inefficiency. Without such evidence, the jury's verdict could only be based upon speculation and conjecture. Furthermore, although LMC continues to deny that its actions had any impact upon the efficiency of the project, such denials do not withstand scrutiny because the evidence, construed in a light most favorable to LMC, established that LMC's own actions contributed to at least some of the inefficiency. Contrary to LMC's assertions, LMC was required to show that it was not responsible for causing excessive hours to be incurred on the project.
At a minimum, this evidence would have included a showing of the number of hours required to construct the Dredge under the construction conditions encountered by BSC.
3. BSC Is Entitled to Judgment as a Matter of Law Because LMC's Proof Is Insufficient Even Under the Jury Type Verdict Method for Establishing Damages.
LMC concedes that it failed to present evidence to support a verdict under the reasonable cost method, but argues that it was entitled to prove damages under the jury-type verdict method recognized by the court in R.W. Construction. Since this was a jury trial, a "jury-type" verdict would seem appropriate if supported by the evidence. Nonetheless, assuming that the jury-type verdict method was a permissible method of proving damages in this case, LMC's proof regarding damages was still insufficient to support the jury's conclusion that LMC suffered damages. As discussed above, LMC's evidence pertaining to damages, which consisted solely of Walsh's testimony regarding the $4 million estimate, was far from sufficient to allow a jury to reach a fair and reasonable approximation of damages. As noted above, Walsh's testimony regarding the $4 million estimate — the foundation of LMC's damage claim — was insufficient to establish a reliable basis for a damage award. Absent that evidence, the jury could only speculate about damages, which is impermissible under any method of establishing damages.
In addition, LMC failed to show that the other conditions for use of the jury-type verdict method were met: (1) that liability is clear; and (2) that the lack of records or age of the case precluded evidence of a specific damage award. R.W. Constr., 78 Wis., 2d at 462-64, 255 N.W.2d at 299. First, as the Court indicated during trial proceedings, LMC failed to show that it would not be possible to calculate the cost to construct the Dredge with a reasonable degree of accuracy, based upon the as-built drawings or even based upon the completed Dredge itself. LMC's argument that there was not sufficient information from which a person expert in estimating the cost of efficient construction of the Dredge could determine the reasonable cost is inconsistent with its reliance upon O'Hern's $4 million estimate. In other words, if there was enough information for O'Hern to accurately estimate the cost to complete the Dredge, why is there not enough information now for an expert consultant or estimator from another yard to determine the cost? Moreover, LMC's argument that BSC failed to keep sufficient records to enable LMC to determine how many hours BSC would — have spent on the Dredge, had it performed in an efficient manner, must be rejected. The relevant inquiry is whether BSC was inefficient in comparison to the ordinary and reasonable contractor, not whether BSC failed to live up to its own standards and abilities. Second, as explained in more detail above, the evidence LMC presented at trial did not establish a case of clear liability. LMC's evidence established, at most, that BSC was unreasonably inefficient in some, but not all, aspects of the construction. LMC failed to link any breach by BSC to any damage sustained by LMC.
B. Motion for New Trial
BSC has moved, in the alternative, for a new trial based upon the grounds that the verdict was against the great weight of the evidence, the verdict was excessive, and the Court's evidentiary rulings prejudiced BSC's rights.
In determining whether a new trial should be granted, this Court must apply federal law. Clay v. Ford Motor Co., 215 F.3d 663, 672 (6th Cir. 2000); Arms v. State Farm Fire Cas. Co., 731 F.2d 1245, 1248 n. 2 (6th Cir. 1984). In ruling upon a motion for new trial based upon the ground that the verdict is against the weight of the evidence, a trial court may compare and weigh the opposing evidence. Toth v. Yoder Co., 749 F.2d 1190, 1197 (6th Cir. 1984). A district court must set aside the verdict if it determines that the verdict is against the clear weight of the evidence. J.C. Wyckoff Assocs., Inc. v. Standard Fire Ins. Co., 936 F.2d 1474, 1487 (6th Cir. 1991). However, a court may not set aside a jury verdict simply because the jury could have drawn different inferences or conclusions or because the court believes that another result is more justified. TCP Indus., Inc. v. Uniroyal, Inc., 661 F.2d 542, 546 (6th Cir. 1981).
BSC is entitled to a new trial because the verdict was against the great weight of the evidence. The issue in this case was whether BSC was unreasonably efficient, such that BSC spent more hours on the construction of the Dredge than was reasonably necessary. Apart from LMC's evidence regarding BSC's inefficiency, LMC failed to introduce any evidence showing that such inefficiency actually resulted in increased hours. In other words, LMC failed to show that the number of hours BSC spent on the Dredge exceeded the number of hours an ordinary contractor would charge for constructing the same Dredge under the same conditions. O'Hern's April estimate was LMC's only basis for determining whether BSC's actual labor charges were reasonable, but as the Court has noted above, LMC failed to show that O'Hern's estimate provided a reasonably reliable basis for establishing the cost to complete the Dredge in April 2000. Finally, BSC introduced substantial evidence, including testimony from BSC's expert, Alan Nierenberg, that LMC contributed to or caused the inefficiency that occurred during the construction of the Dredge. Although LMC contends that it did not contribute to the inefficiency, LMC ignores substantial evidence to the contrary. That evidence established that LMC's failures to provide drawings and owner-furnished equipment on a timely basis and its substantial changes, additions, and revisions to the project caused, or at least contributed to, the inefficiency. Finally, LMC failed to show that any inefficiency on the part of BSC contributed to increased hours.
When a party seeks a new trial on the ground that the verdict was excessive, Rule 59 governs the procedural question of whether to grant a new trial and state law governs the substantive question of whether the verdict was excessive. Adam v. J.B. Hunt Transp., Inc., 130 F.3d 219, 224 (6th Cir. 1997). Under Wisconsin law, a verdict challenged as excessive should "not be disturbed if there is any credible evidence, which under any reasonable view, supports the jury finding." Bash v. Employers Mut. Liab. Ins. Co., 38 Wis.2d 440, 446, 157 N.W.2d 634, 638 (1968). In this case, the only evidence supporting LMC's damage claim was O'Hern's $4 million estimate. The $4 million estimate was not reliable and, therefore, could not support the jury's verdict. In the absence of such evidence, there was no basis for the jury to award damages to LMC. Thus, BSC is entitled to a new trial on this ground.
Finally, BSC is entitled to a new trial on the ground that the Court admitted certain evidence which was unfairly prejudicial to BSC. In particular, the Court allowed LMC to introduce evidence regarding O'Hern's $4 million estimate without any showing that it was reasonably reliable or that, based upon the information known at the time, the Dredge could have been completed for $4 million. In addition, LMC was allowed to proceed on a jury-type verdict method of determining damages without any showing that the requirements for use of that method were met.
III. Conclusion
For the foregoing reasons, the Court will grant BSC's renewed motion for judgment as a matter of law or, in the alternative, for a new trial.
An Order consistent with this Opinion will be entered.
ORDER
In accordance with the Opinion filed this date,
IT IS HEREBY ORDERED that Defendants' Motion for Judgment as a Matter of Law or, in the Alternative, for a New Trial Pursuant to Fed.R.Civ.P. 50 (b) and 59(a) (docket no. 131) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs Motion for Double Costs and Interest Pursuant to Wisconsin Statute § 807.01 is DENIED.
IT IS FURTHER ORDERED that Defendants' Motion to Disallow Certain Costs Claimed by Plaintiff (docket no. 132) is DENIED AS MOOT.
The Clerk shall enter judgment in favor of Defendants on Plaintiffs claims.