07-3731, and 07-4645 POLYMER DYNAMICS, INC. v. Bayer Corporation

The Honorable Thomas S. Ellis III, Senior District Judge for the United States*
District Court for the Eastern District of Virginia, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 07-3730, 07-3731,
and 07-4645
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POLYMER DYNAMICS, INC.,
Appellant/Cross-Appellee
v.
BAYER CORPORATION,
Appellee/Cross-Appellant
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On Appeal From the United States District Court
for the Eastern District of Pennsylvania
(Civil No. 99-cv-04040)
District Judge: Honorable Petrese B. Tucker
Argued January 8, 2009
Before: CHAGARES, HARDIMAN, Circuit Judges, and ELLIS District Judge.*
(Filed:July 22, 2009)
Jeffrey A. Lamken (Argued)
Joshua Klein
Stephanie Dourado
BAKER BOTTS L.L.P.
1299 Pennsylvania Avenue, N.W.

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Washington D.C. 20004-2400
J. Bruce McKissock
MARSHALL, DENNEHEY,
WARNER, COLEMAN & GOGGIN
1845 Walnut Street
Philadelphia, PA 19103-4797
Counsel for Appellant/Cross-Appellee
Virginia A. Seitz (Argued)
Madeleine V. Findley
SIDLEY AUSTIN LLP
1501 K Street, N.W.
Washington, DC 20005
Michael M. Mustokoff
Teresa N. Cavenagh
DUANE MORRIS LLP
United Plaza
30 South 17th Street
Philadelphia, PA 19103-4196
Counsel for Appellee/Cross-Appellant
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AMENDED
OPINION OF THE COURT
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CHAGARES, Circuit Judge.
Polymer Dynamics (“PDI”) appeals and Bayer Corporation (“Bayer”) cross-
appeals from the District Court’s denial of the parties’ post-trial motions for a judgment
as a matter of law. For the following reasons, we will affirm the District Court’s
judgment in part, vacate the judgment in part and remand.

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The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367, and1
following dismissal of the federal RICO claim, had jurisdiction over the remaining state-
law claims under § 1367. We have jurisdiction under 28 U.S.C. § 1291.
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PDI sued Bayer for breach of contract, negligent misrepresentation, and fraud. A
jury found in favor of PDI on its breach of contract and negligent misrepresentation
claims, but rejected PDI’s fraud claim. On appeal, PDI argues that this Court should
vacate the judgment and remand for retrial of the fraud claim and retrial on consequential
damages caused by Bayer’s breach of contract and negligent misrepresentation. PDI also
appeals from the District Court’s grant of partial post-judgment interest, asserting that
such interest should be applied to the entire amount of the verdict. Bayer cross-appeals,
contending that PDI is not entitled to the full amount of the damages award. Bayer
concedes, however, that PDI is entitled to post-judgment interest on the entire amount of
damages that is ultimately awarded.1
With respect to consequential damages, PDI contends that the District Court
erroneously limited PDI’s damages by requiring the jury to enforce purported limits on
Bayer’s liability despite the failure of the alleged exclusive remedy and the fact that no
such limit was agreed upon by the parties. Alternatively, PDI asks for certification to the
Pennsylvania Supreme Court on the issue of whether a failure of an exclusive remedy
voids a contractual provision prohibiting consequential damages. PDI also asserts that a
new trial is required because the District Court misstated the elements of fraud in one of
the jury interrogatories. Bayer, in its cross-appeal, claims that PDI is, as a matter of law,

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not entitled to the full amount of damages that the jury awarded because PDI did not
prove those damages to a reasonable certainty.
Our review of the District Court’s denial of a motion for judgment as a matter of
law pursuant to Federal Rule of Civil Procedure 50(b) is plenary. See Raiczyk v. Ocean
County Veterinary Hosp., 377 F.3d 266, 269 (3d Cir. 2004). A Rule 59 motion for a new
trial or to alter or amend the judgment “‘brings up the underlying judgment for review,’”
so that this Court’s standard of review “varies with the nature of the underlying judicial
decision.” Fed. Kemper Ins. v. Rauscher, 807 F.2d 345, 348 (3d Cir. 1986) (quoting
Quality Prefabrication v. Daniel J. Keating Co., 675 F.2d 77, 78 (3d Cir. 1982)).
Accordingly, we review de novo the soundness of the consequential damages
instruction. Where issues arise under Pennsylvania law and the Pennsylvania Supreme
Court has not addressed them, we must “predict how [that] court would” rule. Paollela v.
Browning-Ferris, Inc., 158 F.3d 183, 189 (3d Cir. 1998). With regard to the jury
interrogatory, we review for plain error because PDI did not object to the interrogatory
before the District Court. See Hurley v. Atl. City Police Dep’t, 174 F.3d 95, 123 (3d Cir.
1998).
Finally, in reviewing Bayer’s claim that PDI’s evidence does not support the jury’s
damages award, we may grant judgment as a matter of law only if “the record is critically
deficient of that minimum quantity of evidence from which a jury might reasonably
afford relief.” Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d 243, 249 (3d Cir.

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2001). Neither “mathematical [] precis[ion],” id., nor expert testimony, Paolella, 158
F.3d at 195, is required. We cannot “weigh the evidence, determine the credibility of
witnesses, or substitute [our] version of the facts for the jury’s version.” Lightning Lube,
Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993). We also “‘must disregard all
evidence favorable to the moving party that the jury is not required to believe.’” Springer
v. Henry, 435 F.3d 268, 281 (3d Cir. 2006).
We have reviewed the parties’ briefs and heard oral argument on the issues
presented by the parties and, applying the aforementioned standards of review, we rule as
follows. We will vacate the District Court’s judgment and remand with instructions to
apply post-judgment interest to the entire award. See 28 U.S.C. § 1961(a). In all other
respects, however, we will affirm the judgment of the District Court, essentially for the
reasons set forth by the District Court in its thorough opinion.

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