Pliteq, Inc. et al v. Mostafa

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 23-CV-24868-ELFENBEIN
PLITEQ, INC., et al.,
Plaintiffs,
v.
MAGED MOSTAFA,
Defendant.
______________________________/
ORDER ON DEFENDANT’S MOTION
FOR JUDGMENT AS A MATTER OF LAW OR FOR NEW TRIAL
THIS CAUSE is before the Court on Defendant Maged Mostafa’s Motion for Judgment
as a Matter of Law (the “Rule 50(b) Motion”), or alternatively, an Order Granting a New Trial (the
“Rule 59 Motion”) (collectively, the “Motion”). ECF No. [300]. 	In the Rule 50(b) Motion,
Defendant seeks a judgment as a matter of law under Federal Rule of Civil Procedure 50(b) on
two bases: (1) certain testimony from the president/CEO of Plaintiffs Pliteq, Inc. (“Pliteq”) and
Pliteq Building Materials Trading, LLC (“PBM”) was improper, so the Court should have either
stricken it or issued a curative instruction to the jury to ameliorate its impact; and (2) the total
evidence overwhelmingly showed that Plaintiffs had suffered no actual damages, so no reasonable
jury could have arrived at the verdict in this case. See ECF No. [300] at 7. Alternatively, in the
Rule 59 Motion, Defendant seeks a new trial under Rule 59 on two bases: (1) the Court’s denial
of his request to testify remotely unduly prejudiced him; and (2) the verdict is contrary to the law
and the evidence. See ECF No. [300] at 7. For the reasons explained below, the Motion, ECF
No. [300], is DENIED.
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I. 	RELEVANT BACKGROUND1
Because the Parties are familiar with the facts and the Court has recounted them in several
earlier orders, see ECF No. [73]; ECF No. [214]; ECF No. [251], it includes only the most relevant
details here. As the Court has noted before, this case arose out of a dispute between an employer
(Pliteq and PBM, collectively “Plaintiffs”) and a former employee (Defendant). Pliteq is a
Canadian corporation that operates in the engineering and manufacturing fields. 	See ECF No.
[120] at 2. 	PBM is a Pliteq affiliate limited liability company organized under the laws of the
United Arab Emirates (“UAE”) and based in Dubai. 	See ECF No. [120] at 2. Defendant is a
resident of Dubai, who from 2018 to 2023 was PBM’s General Manager. See ECF No. [120] at 2,
5.
During his employment with Plaintiffs, Defendant signed two documents important to this
case: an employment contract, see ECF No. [121-1], and a standalone confidentiality agreement,
see ECF No. [121-2]. See ECF No. [120] at 16–17. In those documents, Defendant agreed to “a
strict confidentiality provision prohibiting the use or disclosure of PBM’s confidential and trade
secret information.” See ECF No. [120] at 5–6. After an investigation revealed Defendant had
performed an “unauthorized mass-download of Plaintiffs’ most sensitive financial and trade secret
Information,” Plaintiffs fired Defendant in November 2023. See ECF No. [120] at 7–10. When
Defendant refused to confirm that he had deleted Plaintiffs’ proprietary information and refused
to return his company-issued cellphone and laptop, Plaintiffs filed this lawsuit in December 2023.
See ECF No. [1] at 7–9; ECF No. [120] at 2, 7–10.
1 At the pretrial conference, Defendant “stipulated to liability on all counts of the Amended Complaint,”
including the allegations supporting those counts. See ECF No. [268]. But Defendant did not stipulate to
allegations that he “acted willfully” or that Plaintiffs sustained damages, which were decided at trial. See
ECF No. [268]. For that reason, the Court takes the facts in this section either from the Amended Complaint,
ECF No. [120], or from the pretrial and trial transcripts, ECF No. [282]; ECF No. [293]; ECF No. [294].
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In their Amended Complaint, filed in August 2024, Plaintiffs asserted seven claims:
misappropriation of trade secrets under the Defend Trade Secrets Act, unfair competition,
injunctive relief, breach of employment contract, breach of confidentiality agreement, breach of
fiduciary duty, and conversion. See ECF No. [120] at 10–20. Plaintiffs sought punitive damages
in their misappropriation, unfair competition, and breach of fiduciary duty claims. See ECF No.
[120] at 10–15, 18–19. 	Plaintiffs also requested “damages addressing the consequences of
Mostafa’s misconduct” in their misappropriation and unjust enrichment claims, see ECF No. [120]
at 12–15, and damages addressing the harm to their “reputation and goodwill” in the breach of
fiduciary duty claim, see ECF No. [120] at 19.
A. Defendant’s Original Motion for Defendant to Testify Remotely
Although Defendant initially contested Plaintiffs’ claims, at the pretrial conference, he
“stipulated to liability on all counts of the Amended Complaint,” so jury trial proceeded “only on
the issues of whether Defendant acted willfully and whether Plaintiffs sustained any damages,
including compensatory and punitive damages.” See ECF No. [268]. Also at the pretrial
conference, which occurred on Friday, April 4, 2025, defense counsel represented that Defendant
had “confirmed” he would appear in person for the trial the following Monday, April 7. See ECF
No. [282] at 47. 	On the morning of April 7, however, defense counsel informed the Court that
Defendant was no longer planning to attend the trial in person because he was having “some
issues” with his new company and the flight from Dubai was expensive, so he “made a decision
that he didn’t want to spend the effort to come” to Miami. 	See ECF No. [293] at 4–6. 	But
Defendant did not object to the trial “moving forward” without him. See ECF No. [293] at 6.
Defense counsel requested that the Court allow Defendant to testify remotely from Dubai
over Zoom. See ECF No. [293] at 4–5. The Court made clear Defendant would “have to brief”
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the issue and explain why he should be allowed to testify remotely instead of in open court, as
Rule 43(a) typically requires. 	See ECF No. [293] at 4–5. 	After considering case law from
Plaintiffs, which Defendant agreed laid out the correct “good cause standard,” the Court denied
Defendant’s request because he had not “demonstrated good cause or compelling circumstances.”
See ECF No. [293] at 6–7, 137–38, 142–43. Defendant had many months’ notice of the trial date,
and no “unexpected reasons” like “an accident or illness” had arisen to impair his ability to travel
for the trial; instead, Defendant chose not to attend in person “merely for his own convenience”
and to minimize his costs. See ECF No. [293] at 142–43.
In response to the Court’s ruling, defense counsel noted he had talked to Defendant earlier
in the day to explain that the Court might not allow him to testify remotely, and counsel learned
during that conversation that Defendant had a trial set for April 10 in a related matter in Dubai
court. 	See ECF No. [293] at 144–46. 	For that reason, Defendant argued he could not travel to
Miami for this Court’s April 7 trial and make it back to Dubai in time for that court’s April 10
trial. See ECF No. [293] at 144–46. That detail did not change the Court’s ruling, but the Court
reminded defense counsel there was “still time if” Defendant wanted to “come testify live.” See
ECF No. [293] at 144–47. 	Defendant did not appear in Miami for trial, so the only witness
testimony presented at trial came from Plaintiffs’ Founder, President, and CEO Paul Downey
(“Downey”) and Plaintiffs’ forensic expert Santiago Ayala (“Ayala”). See ECF No. [293] at 176–
79; ECF No. [294] at 8–10.
B. Defendant’s Objection to Plaintiffs’ Damages Assessment & Renewed Motion for
Defendant to Testify Remotely
During Downey’s testimony on direct examination, he explained that Plaintiffs had spent
$26 million on the research and development of their proprietary products and information. See
ECF No. [293] at 183–85. The Court also admitted an exhibit acknowledging Plaintiffs’ $26
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million research and development costs. 	See ECF No. [293] at 175–76; ECF No. [290-4] at 2.
Downey testified that Plaintiffs’ factory, equipment, formulas, consultant/customer database, test
reports, and manufacturing process are “trade secrets” that provide them with a “competitive
advantage.” See ECF No. [293] at 185–88. He explained that Plaintiffs take precautions, including
forbidding employees from transferring trade secret information to a “non-Pliteq system,” to
ensure their “confidential information stays within” their “control and is not at risk.” See ECF No.
[293] at 197. 	And Downey confirmed that Defendant had, without authorization, downloaded
Plaintiffs’ “confidential and trade secret information” in October 2023, which led to Plaintiffs
firing Defendant in November 2023. See ECF No. [293] at 200–04, 213.
Downey testified that Defendant’s misconduct in downloading Plaintiffs’ proprietary
information had “caused damage” to their “reputation and good will” because it had “an adverse
effect on the value” of their research and development “through the threat and exposure of” their
“trade secret information.” See ECF No. [293] at 222. 	In Downey’s assessment, Plaintiffs had
suffered damages in the amount of “ten percent” of their research and development expenditure,
which equated to $2.6 million. See ECF No. [293] at 222. Defendant did not object when that
testimony was elicited. 	See ECF No. [293] at 222–23. 	Instead, Defendant cross-examined
Downey without asking about or mentioning the 10% damages assessment. See ECF No. [293] at
223–63.
Although Plaintiffs originally indicated that they would present portions of Defendant’s
deposition testimony because he would no longer be in the courtroom to testify live, see ECF No.
[293] at 7, 143–49, they ultimately decided not to do so, see ECF No. [294] at 84. When Plaintiffs
rested their case after testimony from Downey and Ayala, defense counsel indicated that he
intended to present portions of Defendant’s deposition testimony during Defendant’s case in chief.
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See ECF No. [294] at 85. Plaintiffs objected to Defendant’s use of his own deposition testimony
as improper under Rule 32 because Defendant’s failure to attend the trial in person was his own
choice. See ECF No. [294] at 85–91.
Defense counsel argued the Court should allow him to use Defendant’s deposition
testimony because Defendant did not choose the forum and had filed many related lawsuits in his
preferred forum of Dubai, where he had a court hearing that formed part of the reason he chose
not to attend the trial in person. 	See ECF No. [294] at 89. 	He also renewed his motion for
Defendant to testify by Zoom, arguing that there was no difference between remote live testimony
and live testimony in the courtroom and that Defendant had given deposition testimony by Zoom
multiple times without objection. See ECF No. [294] at 89–96. The Court agreed with Plaintiffs
and sustained the objection, finding that Defendant “procured his own absence” from the
courtroom and had not shown a financial inability to attend in person. See ECF No. [294] at 91–
96. 	So instead of reading parts of Defendant’s deposition testimony into the record, defense
counsel recalled Downey as a defense witness on the second day of trial in his case in chief. See
ECF No. [294] at 112.
During Downey’s direct testimony as a defense witness, defense counsel asked him about
the $26 million Plaintiffs had spent on research and development over the 19 years they had been
in business. See ECF No. [294] at 116–17. Defense counsel also asked Downey when he arrived
at the damages assessment of 10% of that $26 million, and Downey answered that it was “before
this litigation.”2 See ECF No. [294] at 117. After being refreshed by his own deposition transcript,
which indicated Plaintiffs’ damages estimate was still being formulated in December 2024,
Downey explained that he had settled on the 10% assessment before the trial. See ECF No. [294]
2 Altogether, defense counsel mentioned the $2.6 million estimate five separate times while examining
Downey as a defense witness. See ECF No. [294] at 116–23.
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at 117–21. 	Downey admitted that his testimony during the first day of trial was the first time
Plaintiffs had suggested their damages were $2.6 million and that Plaintiffs had not submitted “the
2.6 million dollar number in response to any discovery.” See ECF No. [294] at 121–22.
Prompted by that revelation, defense counsel asked for a sidebar and explained to the Court
and Plaintiffs’ counsel that Defendant had been “ambushed” by Plaintiffs’ failure to disclose their
$2.6 million damages assessment before trial. 	See ECF No. [294] at 122. 	The Court reviewed
Plaintiffs’ Rule 26 initial disclosures and remarked that they contained “no actual computation”
and were simply “a regurgitation of the allegations” of the Amended Complaint. 	See ECF No.
[294] at 122–24. As a result, the Court instructed Plaintiffs that they could tell the jury about the
$26 million they spent on research and development, which was disclosed before trial, but they
could not “tether” Downey’s 10% assessment to the $26 million or tell the jury that Plaintiffs’
amount of damages “is ten percent” of the research and development number because that estimate
had not been disclosed before trial. See ECF No. [294] at 125–26. Defense counsel requested that
the Court also issue a curative instruction because the jury had been “left with the impression” that
Plaintiffs’ “damages are 2.6 million dollars,” which the Court indicated it would consider at the
charge conference. See ECF No. [294] at 125–26.
C. Defendant’s Rule 50(a) Motion
After Defendant rested his case, defense counsel moved for partial judgment as a matter of
law under Rule 50(a) as to the damages component of Plaintiffs’ misappropriation, breach of
fiduciary duty, and conversion claims (the “Rule 50(a) Motion”). See ECF No. [294] at 130–32.
First, he argued Plaintiffs’ $2.6 million damages estimate “should have been disclosed at the
deposition or some time during the case, not on the first day of trial.” See ECF No. [294] at 130.
Second, he argued Plaintiffs had “not established any damages other than attorney’s fees” and
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“maybe” expert costs. See ECF No. [294] at 130. In response, Plaintiffs argued four points: (1)
Defendant’s Rule 50(a) Motion was untimely because he should have made it at the close of
Plaintiff’s case; (2) Defendant had stipulated that Plaintiffs had sustained damages but not the
amount of damages they sustained; (3) Plaintiffs were entitled to at least nominal damages, which
would support an award of punitive damages; and (4) Plaintiffs had shown compensatory damages
through Downey’s testimony about the harm to their reputation and goodwill that came from the
impairment of the value of their $26 million research and development investment. See ECF No.
[294] at 132–40.
The Court denied Defendant’s Rule 50(a) Motion. See ECF No. [294] at 140–42. As to
the two procedural arguments, the Court found that Rule 50(a) allows Defendant to make his
motion “at any time before the case is submitted to the jury,” Fed. R. Civ. P. 50(a)(2), which he
had done, and that the pretrial stipulation left open for trial the question of “whether Plaintiffs
sustained any damages.” 	See ECF No. [294] at 132–35; ECF No. [268]. 	As to the substantive
arguments, the Court agreed with Plaintiffs that nominal damages are available for breach of
fiduciary duty and breach of contract claims under Florida law, which meant that Plaintiffs’ breach
of fiduciary duty claim could go to the jury. See ECF No. [294] at 135–42. The Court also found
that the issue of Plaintiffs’ entitlement to punitive damages could go to the jury because those
damages were “tethered to the breach of fiduciary duty” in the Amended Complaint. See ECF No.
[294] at 139. The Court noted that the jury might find Downey’s 10% estimate “speculative” but
concluded that, when viewed in the light most favorable to Plaintiffs, Downey’s testimony about
the harm to Plaintiffs’ reputation, goodwill, and the value of their research and development gave
the jury a legally sufficient evidentiary basis on which it could find Plaintiffs had sustained
compensatory damages. See ECF No. [294] at 139–41.
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Finally, on Plaintiffs’ failure to disclose the $2.6 million damages estimate before trial, the
Court agreed with Plaintiffs that Defendant had waited too long to request a “curative instruction”
striking the testimony and telling the jury to “disregard” it. 	See ECF No. [294] at 141–42. The
Court found that the “appropriate time to request a curative instruction would have been at the
moment” Downey “initially testified” about the $2.6 million damages estimate on the first day of
trial, not after Defendant’s own examination of Downey on the second day of trial when counsel
repeatedly brought it up again. See ECF No. [294] at 142. 	For those reasons, the Court denied
Defendant’s request for a curative instruction, “but given the failure to disclose” the number “in
discovery,” the Court reiterated its ruling that Plaintiffs could not “give the jury a specific
percentage amount of” research and development as a “calculus of what the damages are.” See
ECF No. [294] at 142.
D. The Jury Verdict
The Court then instructed the jury. See ECF No. [294] at 143–74. Relevant here, the Court
told the jury that the goal of compensatory damages is to “make the injured party whole to the
extent it is possible [to] measure the injury sustained in terms of money.” See ECF No. [294] at
168. The Court also explained to the jury that it could award exemplary damages if it found
Defendant had “engaged in willful and malicious misappropriation” of Plaintiffs’ trade secrets but
that the amount of exemplary damages it awarded could not be “more than two times the amount”
it “awarded for compensatory damages.” See ECF No. [294] at 168–69.
After the Court instructed the jury, the Parties gave their closing arguments. See ECF No.
[294] at 174–203. In Plaintiffs’ closing argument, they reviewed the verdict form with the jury.
See ECF No. [294] at 184–86. 	The form asked a series of four questions, each about whether
Plaintiffs sustained a specific type of damage: compensatory, nominal, exemplary, and punitive.
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See ECF No. [294] at 185–86. 	In discussing those damage categories, Plaintiffs explained that
compensatory damages “are to compensate” them for the “harm that occurred” to their
“innovation,” on which they “spent $26 million.” See ECF No. [294] at 184. And in response to
defense counsel’s suggestion that their compensatory damage evidence was based on speculation,
see ECF No. [294] at 187–88, Plaintiffs acknowledged that it is “difficult to put a dollar figure on
betrayal” but argued that the damage to their reputation and goodwill was “real” and “not
speculative,” so the jury could “place a reasonable value on that damage,” see ECF No. [294] at
201–02. 	Plaintiffs also argued the jury should award exemplary damages because Defendant’s
misappropriation of their proprietary information was “willful and malicious” and should award
punitive damages because Defendant’s breach of his fiduciary duty was deliberate. See ECF No.
[294] at 186.
When the jury returned a verdict, the Court called counsel to sidebar and explained that the
verdict was “inconsistent.” See ECF No. [294] at 214. The verdict was inconsistent because the
jury had awarded an amount for exemplary damages that was “more than two times of the
compensatory damages,” which the law does not allow. See ECF No. [294] at 214. The Court
explained that it had to reinstruct the jury on the law to ensure that it understood the legal
inconsistency of its answers on the verdict form and asked the parties how they wanted to proceed.
See ECF No. [294] at 214–15. The Parties agreed that the verdict should be published and that the
jury should then be reinstructed. See ECF No. [294] at 214–16. The original verdict found that
Plaintiffs had not sustained any compensatory damages but that Plaintiffs had sustained nominal,
exemplary, and punitive damages. See ECF No. [294] at 216–17. As part of that original verdict,
the jury awarded Plaintiffs no compensatory damages, $100 in nominal damages, $1 million in
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exemplary damages, and $1.6 million in punitive damages.3 See ECF No. [294] at 216–17.
Once the Court read the verdict, it called counsel back to sidebar. See ECF No. [294] at
218. Plaintiffs asked the Court to “provide a clarifying instruction to the jury and request [it] to
redeliberate” limited to “Questions 1 and 3.” See ECF No. [294] at 218. Defendant argued that
the Court “can’t really fix this, put it back in, so” the parties would “have to deal with the verdict
the way it is” and file “post-trial motions,” including for a new trial. See ECF No. [294] at 218.
Plaintiffs suggested “Rule 51(b) provides” that the Court can choose to reinstruct the jury, and the
Court agreed that it could “re-read the exemplary damages instruction” and tell the jury to “return
a verdict that is consistent with that instruction as it relates to Questions 1 and 3.” See ECF No.
[294] at 219. Though Defendant again noted he did not “see any way to fix it,” he agreed with the
Court’s proposed approach. See ECF No. [294] at 220–21.
With agreement of the Parties, the Court told the jury that there was “an inconsistency in
the verdict in the way” it had “answered Questions 1 and 3.” 	See ECF No. [294] at 221. 	The
Court then “re-read the law as it relates to exemplary damages” and asked the jury “to retire to the
jury room and to continue” deliberations “to provide answers to Questions 1 and 3 that are
consistent with the law.” 	See ECF No. [294] at 221. The Court also sent “the jury instructions
back to the jury room” and told the jury to indicate when it had “rendered a verdict consistent
with” the exemplary damage instruction. See ECF No. [294] at 221–22.
3 The jury also purported to award Plaintiffs “attorney’s fees” as part of its nominal damages award, see
ECF No. [294] at 217, “but the entitlement to and amount of attorney’s fees are a matter of law to be decided
by the Court,” see ECF No. [288] at 1 n.1; Fed. R. Civ. P. 54(d)(2) (noting that a claim for attorney’s fees
“must be made by motion unless the substantive law requires those fees to be proved at trial as an element
of damages” and that the motion must “be filed no later than 14 days after the entry of judgment”);
Columbus Mills, Inc. v. Freeland, 918 F.2d 1575, 1578–79 (11th Cir. 1990) (“This Court has held that there
is no constitutional right to have a jury decide whether or not to award attorneys’ fees.”); Bos. Sci. Corp. v.
Ruiz, No. 05-CV-21270, 2005 WL 8155008, at *1–*3 (S.D. Fla. July 18, 2005) (recognizing that
entitlement to and the amount of attorney’s fees is not properly a jury question and instead is a post-
judgment matter for the judge to decide).
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While deliberating, the jury sent a question to the Court: “Is it correct to say that you must
agree to compensatory damages in order to award exemplary damages?” See ECF No. [294] at
222; ECF No. [285] at 1. After consulting with the Parties, the Court sent back this answer: “The
jury must agree unanimously to compensatory damages in order to award exemplary damages.”
See ECF No. [294] at 226; ECF No. [285] at 1. The jury then returned with an updated verdict.
See ECF No. [294] at 228. The updated verdict found that Plaintiffs had sustained all four
categories of damages (compensatory, nominal, exemplary, and punitive). See ECF No. [294] at
228–29; ECF No. [286]. As part of the updated verdict, the jury awarded Plaintiffs $500,000 in
compensatory damages, $100 in nominal damages, $1 million in exemplary damages, and $1.6
million in punitive damages.4 See ECF No. [294] at 228–29; ECF No. [286].
E. Defendant’s Rule 50(b) Motion
After the jury rendered its updated verdict, Defendant renewed his Rule 50(a) Motion based
on “the issue of the 2.6 million dollar amount,” arguing that the jury “heard that and that’s what
[it] awarded is the 2.6 when you add the one and the 1.6.” 	See ECF No. [294] at 233. 	When
Defendant clarified that the relief he sought through the renewed Rule 50(a) Motion was a new
trial, the Court instructed Defendant he would “have to do that by way of written motion.” See
ECF No. [294] at 233. Defendant then filed the combined Rule 50(b) Motion and Rule 59 Motion.
In the Rule 50(b) Motion, Defendant asks the Court to enter judgment as a matter of law
in his favor under Rule 50(b) for two reasons: (1) Plaintiffs failed to disclose before trial “the
amount of damages they were seeking or how those damages were calculated,” so the Court should
have stricken or given the jury a curative instruction about Downey’s “improper” damages
testimony; and (2) the “evidence was overwhelming” that Plaintiffs “suffered no actual damages,”
4 The jury again tried to award “attorney’s fees” as part of nominal damages. See ECF No. [294] at 229.
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so “no reasonable jury could have” rendered the verdict here. See ECF No. [300] at 4–7.
In their Response, Plaintiffs contend Defendant’s Rule 50(b) Motion fails for several
reasons. See ECF No. [305] at 2–16. Procedurally, Plaintiffs argue that evidentiary issues are not
a proper basis for a Rule 50 motion in general and that Defendant failed to include the damages
issue involving Downey’s testimony as part of his Rule 50(a) motion, which means he cannot raise
it now. See ECF No. [305] at 2–5. Substantively, Plaintiffs argue the Court did not err in allowing
Downey’s testimony to stand uncorrected because “Rule 26 does not require disclosure of specific
legal theories or numbers to support non-pecuniary damages” like harm to reputation or goodwill.
See ECF No. [305] at 5–8. 	Plaintiffs also argue Defendant failed to timely object to Downey’s
damage estimate because the testimony was first elicited during Plaintiffs’ direct examination of
Downey as a plaintiff witness on the first day of trial, but Defendant did not object until after
Defendant’s direct examination of Downey as a defense witness on the second day of trial. See
ECF No. [305] at 8–11. 	They argue defense counsel invited any error because he himself
“specifically referenced and elicited” the same damages testimony from Downey five separate
times during his direct examination off the witness. 	See ECF No. [305] at 11–14. 	Finally,
Plaintiffs argue their evidence supporting compensatory damages is sufficient because liability
was based on Defendant’s “unauthorized use” of their trade secret information and “his threat to
disclose it, not actual disclosure,” so the absence of proof that Defendant trafficked their
information does not mean they suffered no damages. See ECF No. [305] at 15–16. In fact, they
argue that Downey testified Defendant’s possession and possible disclosure of their information
devalued their research and development, which caused harm to Plaintiffs’ reputation and
goodwill. See ECF No. [305] at 15–16.
In his Reply, Defendant argues that the Court’s “failure to strike testimony or issue” a
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“curative instruction is” a “proper basis for judgment as a matter of law” under this Circuit’s
precedent and “was argued at trial.” 	See ECF No. [308] at 2–5. 	Similarly, he argues that this
Circuit’s precedent “requires disclosure of loss of goodwill or reputation damages” under Rule 26
and that the “complex financial calculations” involved in quantifying those damages “require
expert testimony.” 	See ECF No. [308] at 5–6. 	Defendant argues he did not waive his right to
object to Downey’s testimony because his objection was timely under Circuit caselaw permitting
delayed objections when they were “sufficiently contemporaneous to give the trial court the
opportunity to correct errors that might otherwise require a new trial.” See ECF No. [308] at 6–7.
Finally, Defendant argues he did not invite any error because he had to elicit from Downey
testimony showing a discovery violation (the failure to disclose the $2.6 damages estimate before
trial) had occurred to alert the Court to the “ambush” Plaintiffs attempted. See ECF No. [308] at
8.
F. 	Defendant’s Rule 59 Motion
Alternatively, in the Rule 59 Motion, Defendant asks the Court to grant him a new trial
under Rule 59 for two reasons: (1) he was “unduly prejudiced” by the Court’s decision not to allow
him to testify remotely from Dubai over Zoom, so the trial was “unfair”; and (2) the “verdict is
contrary to the law and the evidence” because it “improperly awards both compensatory and
nominal damages” and “improperly awards attorney’s fees as nominal damages.” See ECF No.
[300] at 7, 17–20.
In their Response, Plaintiffs argue that Defendant gave “no good cause” or “compelling
circumstances to permit remote testimony” — instead resting on “grounds of expense and
inconvenience” — and that his inability to offer live testimony was a consequence “of his own
strategic, last-minute decision not to appear at trial.” See ECF No. [305] at 16–19. They argue
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“the jury’s award of both nominal and compensatory damages” was proper because the law would
allow the jury to award nominal damages on Plaintiffs’ “claim for breach of fiduciary duty” while
at the same time “awarding compensatory damages for misappropriation.” See ECF No. [305] at
19–20. 	Finally, they argue the verdict form’s reference to attorney’s fees “is not grounds for a
new trial” because Defendant, not Plaintiffs, raised that issue with the jury. See ECF No. [305] at
20. For that reason, Defendant invited any error in the jury’s attempt to award attorney’s fees as
part of nominal damages.5 See ECF No. [305] at 20.
In his Reply, Defendant argues Plaintiffs fail to appreciate the difference between his
original motion to allow remote testimony, which occurred before jury selection, and his renewed
motion to allow remote testimony, which occurred when Plaintiffs rested their case without using
Defendant’s deposition testimony as they had initially intended to do. See ECF No. [308] at 8. He
argues “the change in circumstances when Plaintiffs rested their case” without using Defendant’s
deposition testimony “established the good cause and compelling circumstances to permit remote
testimony” at that point. 	See ECF No. [308] at 8. 	Defendant also argues that, although he
“ultimately acquiesced to the simple version of verdict form prepared by the Court,” he initially
“sought to avoid” a situation where it was unclear for “which counts” the jury awarded damages
because he worried the jury could be confused by the verdict form’s request for “just one set of
numbers” despite the “overlapping claims.” See ECF No. [308] at 8–10. He asserts that comparing
the jury’s first and second verdicts makes clear it was indeed “confused and misapplied the law.”
See ECF No. [308] at 8–10. Finally, he argues that the “jury was plainly confused and misapplied
the law” when it awarded attorney’s fees and that “the solution to this error is not for the parties
(and the Court) to pick and choose what parts of the verdict it should follow” but instead to hold a
5 Plaintiffs acknowledge that “entitlement to and amount of attorney’s fees are matters of law to be decided
by the Court, post-trial, and not by the jury.” See ECF No. [305] at 20.
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new trial. See ECF No. [308] at 10.
II. 	LEGAL STANDARDS
A. Judgment as a Matter of Law After Jury Trial (Rule 50)
“If a party has been fully heard on an issue during a jury trial and the court finds that a
reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that
issue, the court may: (A) resolve the issue against the party; and (B) grant a motion for judgment
as a matter of law against the party on a claim or defense that, under the controlling law, can be
maintained or defeated only with a favorable finding on that issue.” Fed. R. Civ. P. 50(a)(1). A
party may move for judgment as a matter of law “at any time before the case is submitted to the
jury” and “must specify the judgment sought and the law and facts that entitle the movant to the
judgment.” Fed. R. Civ. P. 50(a)(2). If the court does not grant the motion, “the movant may file
a renewed motion for judgment as a matter of law” as long as he files it no “later than 28 days after
the entry of judgment.” See Fed. R. Civ. P. 50(b). A renewed motion “may include an alternative
or joint request for a new trial under Rule 59.” See Fed. R. Civ. P. 50(b).
“A Rule 50(b) motion is a renewal of a Rule 50(a) motion.” Doe v. Celebrity Cruises, Inc.,
394 F.3d 891, 903 (11th Cir. 2004). For that reason, the Eleventh Circuit “repeatedly has made
clear that any renewal of a motion for judgment as a matter of law under Rule 50(b) must be based
upon the same grounds as the original request for judgment as a matter of law made under Rule
50(a) at the close of the evidence and prior to the case being submitted to the jury.” See id. A
“party cannot assert grounds in the renewed motion that it did not raise in the earlier motion”
because Rule 50(b) is designed “to avoid making a trap out of” a motion for judgment as a matter
of law, so it must ensure “opposing counsel will not be ambushed or sandbagged regarding the
sufficiency of the evidence adduced at a point in the trial proceedings when it is too late to address
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possible insufficiencies.”6 See id. (quotation marks omitted). “Strict identity of issues, however,
is not required. So long as they are closely related, such that opposing counsel and the trial court
may be deemed to have notice of the deficiencies asserted by the moving party, the purposes of
the rule will be satisfied.” 	Howard v. Walgreen Co., 605 F.3d 1239, 1243 (11th Cir. 2010)
(quotation marks omitted).
“In ruling on the renewed motion, the court may: (1) allow judgment on the verdict, if the
jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law.”
See Fed. R. Civ. P. 50(b). “Judgment as a matter of law is appropriate only if the evidence is so
overwhelmingly in favor of the moving party that a reasonable jury could not arrive at a contrary
verdict.” Taylor v. Mentor Worldwide LLC, 940 F.3d 582, 591 (11th Cir. 2019) (quotation marks
omitted). 	“If the court grants a renewed motion for judgment as a matter of law, it must also
conditionally rule on any motion for a new trial by determining whether a new trial should be
granted if the judgment is later vacated or reversed. The court must state the grounds for
conditionally granting or denying the motion for a new trial.” See Fed. R. Civ. P. 50(c)(1).
“A district court should grant judgment as a matter of law when the plaintiff presents no
legally sufficient evidentiary basis for a reasonable jury to find for him on a material element of
his cause of action.” Pickett v. Tyson Fresh Meats, Inc., 420 F.3d 1272, 1278 (11th Cir. 2005)
(citation omitted); Chaney v. City of Orlando, 483 F.3d 1221, 1227 (11th Cir. 2007) (“[I]n ruling
on a party’s renewed motion under Rule 50(b) after the jury has rendered a verdict, a court’s sole
consideration of the jury verdict is to assess whether that verdict is supported by sufficient
evidence.”). On the other hand, the “court should deny it if the plaintiff presents enough evidence
to create a substantial conflict in the evidence on an essential element of the plaintiff’s case.”
6 For the same reason, “a district court does not have the authority under Rule 50(b) to rule sua sponte on
issues not raised by the parties.” See Doe, 394 F.3d at 903.
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Pickett, 420 F.3d at 1278 (citation omitted); see also Campbell v. Rainbow City, 434 F.3d 1306,
1312 (11th Cir. 2006) (considering “whether sufficient conflict exists in the evidence to necessitate
submitting the matter to the jury or whether the evidence is so weighted in favor of one side that
that party is entitled to succeed in his or her own position as a matter of law” (quotation marks
omitted)); XTec, Inc. v. Hembree Consulting Servs., Inc., 183 F. Supp. 3d 1245, 1252 (S.D. Fla.
2016). Although courts “look at the evidence in the light most favorable to the non-moving party,
the non-movant must put forth more than a mere scintilla of evidence suggesting that reasonable
minds could reach differing verdicts.” Campbell, 434 F.3d at 1312 (quotation marks omitted).
B. New Trial (Rule 59)
After a jury trial, the “court may, on motion, grant a new trial on all or some of the issues”
to any party for “any reason for which a new trial has heretofore been granted in an action at law
in federal court.” See Fed. R. Civ. P. 59(a)(1)(A). “A motion for a new trial must be filed no later
than 28 days after the entry of judgment.” See Fed. R. Civ. P. 59(b). “The decision to grant a new
trial pursuant to Rule 59(a)(1)(A) of the Federal Rules of Civil Procedure is committed to the
discretion of the trial court.” SEC v. Complete Bus. Sols. Grp., Inc., 608 F. Supp. 3d 1231, 1239
(S.D. Fla. 2022) (quotation marks omitted); see also Alphamed Pharms. Corp. v. Arriva Pharms.,
Inc., 432 F. Supp. 2d 1319, 1334 (S.D. Fla. 2006) (“A trial judge has greater discretion in ruling
on a motion for new trial than when ruling on a motion for judgment as a matter of law. This is
because even if the evidence in support of the verdict is substantial, a new trial may be ordered if
the verdict is against the great weight of the evidence, if damages are excessive and shock the
conscience of the court, if substantial errors occurred during the proceedings, or to prevent
injustice.”).
“When ruling on a motion for a new trial, a trial judge must determine if in his opinion, the
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verdict is against the clear weight of the evidence or will result in a miscarriage of justice, even
though there may be substantial evidence which would prevent the direction of a verdict.” See Ins.
Co. of N. Am. v. Valente, 933 F.2d 921, 922–23 (11th Cir. 1991) (citation modified). “To assure
that the judge does not simply substitute his judgment for that of the jury,” “new trials should not
be granted on evidentiary grounds unless, at a minimum, the verdict is against the great—not
merely the greater—weight of the evidence.” 	See id. at 923 (citation modified). 	“Although a
comprehensive list of the grounds for granting a new trial is elusive, the Supreme Court has held
that a motion for a new trial may rest on the fact that ‘the verdict is against the weight of the
evidence, that damages are excessive, or that, for other reasons, the trial was not fair to the party
moving; and may raise questions of law arising out of alleged substantial errors in admission or
rejection of evidence or instructions to the jury.’” Alphamed, 432 F. Supp. 2d at 1334 (quoting
Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940)).
“The erroneous admission of evidence or the failure to admit highly probative evidence
can at times warrant a new trial. To grant a new trial based on these grounds the moving party
must (1) clearly establish that the Court improperly admitted or excluded evidence, and (2) that
the admission or exclusion of this evidence had a substantial prejudicial effect on the verdict.”
Lockaby v. JLG Indus., Inc., No. 04-CV-60040, 2005 WL 8154687, at *4 (S.D. Fla. Dec. 13, 2005);
see also Martin-Viana v. Royal Caribbean Cruises Ltd., No. 23-CV-21171, 2025 WL 253414, at
*3 (S.D. Fla. Jan. 21, 2025). 	“In assessing evidentiary rulings already made,” the “question is
whether the exclusion or admission of evidence affected” a party’s “substantial rights.” 	See
Complete Bus. Sols., 608 F. Supp. 3d at 1239; Perry v. State Farm Fire & Cas. Co., 734 F.2d 1441,
1446 (11th Cir. 1984). “Error in the admission or exclusion of evidence is harmless if it does not
affect the substantial rights of the parties.” Perry, 734 F.2d at 1446. “The burden of demonstrating
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that substantial rights were affected rests with the party asserting error.” Id.; see also Complete
Bus. Sols., 608 F. Supp. 3d at 1239.
III. 	DISCUSSION
A. Judgment as a Matter of Law After Jury Trial Under Rule 50
As an initial matter, the Court agrees with Defendant that evidentiary issues can be raised
in Rule 50(b) motions, see Crawford v. ITW Food Equip. Grp., LLC, 977 F.3d 1331, 1338–42
(11th Cir. 2020), and that he sufficiently raised Downey’s testimony as part of his Rule 50(a)
Motion so as to preserve the argument for his Rule 50(b) Motion, see ECF No. [294] at 130, 141.
The Eleventh Circuit has considered evidentiary issues raised as bases for Rule 50(b) Motions.
See Crawford, 977 F.3d at 1338–42 (analyzing an evidentiary issue involving expert testimony
raised in a Rule 50(b) Motion). And Defendant offered enough argument about Plaintiffs’ failure
to disclose the $2.6 million damages estimate to put the Court on notice of what he considered to
be erroneous, see ECF No. [294] at 130 (“There’s really the 2.6 million dollars is troubling that
that occurred. That should have been -- our position is that should have been disclosed at the
deposition or some time during the case, not on the first day of trial.”); ECF No. [294] at 141 (“And
the only other issue would be the failure to disclose any damage number before trial and ambush
that we talked about.”), and what relief he sought to remedy that error, see ECF No. [294] at 141
(requesting a “curative instruction” and to “strike the testimony and tell the jury to disregard it”).
1. 	The Court did not abuse its discretion in allowing Downey’s damages testimony
Moving to the merits, the Court agrees with Plaintiffs that Defendant’s Rule 50(b) Motion
is due to be denied. Starting with Downey’s damages testimony, Defendant both waited too long
to object to it and invited any error that occurred because of it. First, though Defendant is correct
that the Eleventh Circuit has in some cases considered the merits of delayed objections, see, e.g.,
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Murphy v. City of Flagler Beach, 761 F.2d 622, 626 (11th Cir. 1985) (reaching the merits of an
evidentiary objection because, while delayed, it still gave “the trial judge a chance to correct
errors” and “reevaluate his ruling,” so it was “clearly sufficient to serve the purposes” of the
“contemporaneous objection” requirements of Federal Rule of Evidence 103(a)), more recent
cases make clear that “trial judges have a lot of discretion in ruling a belated objection untimely,”
Bates v. Sec’y, Fla. Dep’t of Corr., 768 F.3d 1278, 1297 (11th Cir. 2014). Indeed, the Eleventh
Circuit has explained that if a party “sits on his objection until the close of the” offensive
“testimony, the trial judge can—and very likely will—call it untimely, a decision” it would then
review only for plain error. See id. (noting that a party “can wait and try to object later” but that
doing so “risks losing the argument entirely to the contemporaneous-objection rule”).
The Court’s language in Bates reaffirms the well-settled principle that the trial judge has
broad discretion to decide whether an objection is timely. See, e.g., Henderson v. Ford Motor Co.,
72 F.4th 1237, 1243 (11th Cir. 2023) (noting the district court has “wide” and “considerable
discretion in determining” Rule 26 evidentiary issues). And under the circumstances here, where
Defendant waited an entire day to object to Downey’s testimony about a damages assessment
Plaintiffs had not disclosed before trial, the Court acted well within its wide discretion in deeming
that objection untimely. As Plaintiffs point out, between Downey’s first mention of the $2.6
million and Defendant’s objection to it, Plaintiffs presented their entire case in chief and Defendant
began his own. See ECF No. [305] at 8–11. Indeed, Defendant waited to raise this objection until
after: (1) Plaintiffs completed Downey’s examination on Day 1 of trial; (2) Plaintiffs called and
examined a second witness, Ayala, on Day 2 of trial; (3) Plaintiffs admitted additional exhibits
into evidence on Day 2 of trial; (4) Plaintiffs rested their case in chief on Day 2 of trial; and (5)
Defendant called Downey as a witness in his case in chief. 	In fact, it was not until Defendant
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elicited additional testimony regarding the $2.6 million in damages from Downey, during which
defense counsel himself mentioned or elicited the supposedly erroneous damages assessment five
separate times, that Defendant finally objected to the testimony at sidebar. See ECF No. [294] at
116–23.
Although the Court acknowledges the difficult position defense counsel was in after joining
the defense team the morning trial began, see ECF No. [293] at 4, counsel’s unfamiliarity with the
case (including the scope of Plaintiffs’ Rule 26 disclosures) does not excuse his belated objection.
And contrary to Defendant’s assertion, defense counsel did not need to elicit testimony about the
discovery violation to argue that Plaintiffs were trying to “ambush” Defendant. See ECF No. [308]
at 8. Indeed, defense counsel could have raised that issue with the Court outside the presence of
the jury — at sidebar or in any of the many conferences the Court held with counsel during the
trial — just as the parties did with a host of other matters that had the potential to prejudice
deliberations. Accordingly, the Court finds Defendant’s objection to Downey’s testimony about
the $2.6 million damages assessment was untimely, waived, and, as a result, does not support
judgment as a matter of law. 	See, e.g., United States v. Olano, 507 US 725, 733 (1993)
(recognizing that waiver, which is an “intentional relinquishment or abandonment of a known
right,” precludes a party from later asserting the waived issue was error (citation omitted)).
Second, even assuming Defendant’s objection was timely, he invited any error. 	As the
Court has explained several times, Defendant’s case in chief included additional testimony from
Downey about the $2.6 million damages assessment; in fact, defense counsel mentioned or elicited
that testimony five separate times during his direct examination of Downey. See ECF No. [294]
at 116–23. Those instances served to highlight the testimony, effectively drawing more and more
attention to Downey’s assessment, as Plaintiffs’ CEO, of what Defendant’s conduct had cost them.
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And it is hornbook law that when defense counsel’s own questions “elicit[] the very testimony
about which he now complains, he is entitled to no relief.” See United States v. Sarras, 575 F.3d
1191, 1216 (11th Cir. 2009); cf. United States v. Jernigan, 341 F.3d 1273, 1289 (11th Cir. 2003)
(“In the context of a district court’s decision to admit certain evidence, the accepted rule is that
where the injection of allegedly inadmissible evidence is attributable to the action of the defense,
its introduction does not constitute reversible error.” (citation modified)). Defendant’s “claimed
error is ‘invited error,’” which means it is likely “unreviewable” in a Rule 50(b) Motion.7 See
Sarras, 575 F.3d at 1216.
Finally, even if Defendant’s objection had been timely and not invited, Downey’s
testimony would still not be grounds for granting him judgment as a matter of law. That is because
the Court recognized at trial the potential prejudicial effect to Defendant of Plaintiffs’ belated
disclosure of the $2.6 million damages assessment and remedied that potential prejudice in the
way it found most appropriate. Specifically, during the sidebar in which Defendant first objected
to the testimony, the Court noted it had “a major issue” with Plaintiffs providing “no information
about the damages” assessment earlier such that Defendant was “hearing about it for the first time
here in trial.” See ECF No. [294] at 124–25. The Court then ruled that Plaintiffs would not be
allowed “to tether” Downey’s 10% assessment to the $26 million they had spent on research and
development in their arguments to the jury because Plaintiffs had not given Defendant “notice” of
that amount, so they would not be permitted to ask the jury for $2.6 million “for the first time here
in trial.” See ECF No. [294] at 125–26.
7 The Court also notes that Defendant’s requested relief — for the Court to strike the testimony and instruct
the jury not to consider it — was unlikely to cure any problem with the jury having heard it, as the Court
would have had to strike not only Downey’s isolated mention of the $2.6 million in damages during
Plaintiff’s case in chief, see ECF No. [293] at 222–23, but also all the testimony about that assessment
Defendant himself elicited during his own case in chief, see ECF No. [294] at 116–23.
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That limitation to Plaintiffs’ closing argument was the Court’s remedy to punish Plaintiffs’
failure to fully comply with their Rule 26 disclosure obligations and to prevent a “trial by ambush.”
See ECF No. [294] at 126. And as the Eleventh Circuit has made clear, “Rule 37 gives a trial court
discretion to decide how best to respond to a litigant’s failure to make a required disclosure under
Rule 26.” 	See Taylor, 940 F.3d at 593. 	Forbidding Plaintiffs from tying Downey’s testimony
about the 10% assessment to his testimony about the value of their research and development
expenditure was a permissible and appropriate sanction for their inadequate Rule 26 disclosure.
See id.; Fed. R. Civ. P. 37(c)(1) (recognizing that, in “addition to or instead of” the sanction of
exclusion, the court may “impose other appropriate sanctions”). It may not have been the sanction
Defendant wanted, but it was certainly within the Court’s considerable discretion.8 	See
Henderson, 72 F.4th at 1243.
For all those reasons, the Court was not required to strike, exclude, or tell the jury to
disregard Downey’s testimony about the $2.6 million damages assessment. 	Accordingly,
judgment as a matter of law is not appropriate based on the Court’s decision not to give such a
curative instruction. See Taylor, 940 F.3d at 591.
2. 	Plaintiffs’ evidence of compensatory damages was sufficient
Defendant’s second argument in support of judgment as a matter of law — that Plaintiffs’
evidence of compensatory damages was insufficient — fares no better. 	Defendant asserts no
reasonable jury could have rendered the verdict here because, in his view, the evidence was
overwhelming that Plaintiffs suffered no actual damages. See ECF No. [300] at 4–7. 	But
8 As Defendant himself notes, ECF No. [300] at 11 n.2, the Eleventh Circuit has not yet decided “whether
or not, even in the absence of substantial justification or harmlessness, the fact of an untimely disclosure
under Rule 26 automatically requires exclusion of the evidence rather than one of the ‘other appropriate
sanctions’ suggested in Rule 37(c)(1)(C).” See Crawford, 977 F.3d at 1342. And until it does so, the Court
retains its discretion to fashion the sanctions remedy it finds most appropriate in each situation.
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Defendant confuses “actual” damages with “tangible” damages. See, e.g., Johnston v. Borders, 36
F.4th 1254, 1269 n.24 (11th Cir. 2022) (noting “compensatory damages cover both mental and
physical aspects of the injury, tangible and intangible,” including “damage” to “career and
reputation” (citation modified)); Scheib v. Fla. Sanitarium & Benev. Ass’n, 759 F.2d 859, 863
(11th Cir. 1985) (recognizing that there are “‘tangible’ and ‘intangible’ elements of damages”); cf.
F.A.A. v. Cooper, 566 U.S. 284, 294 n.4 (2012) (“If ‘actual damages’ can mean ‘tangible damages,’
then it can be construed not to include intangible harm, like mental and emotional distress.”).
Plaintiffs admittedly presented no evidence showing they suffered tangible damages like
lost profits. ECF No. [294] at 136; see also Green-Cooper v. Brinker Int’l, Inc., 73 F.4th 883, 889
(11th Cir. 2023) (recognizing “tangible harms” include “physical or monetary harms” (quotation
marks omitted)). But Plaintiffs presented evidence showing they suffered intangible damages to
their reputation, their goodwill, and the value of their research and development. See ECF No.
[294] at 136–37; see also Fabry v. Comm’r, 223 F.3d 1261, 1266 n.15 (11th Cir. 2000)
(recognizing “intangible loss” includes “loss of reputation”); Limbaugh v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 784 F.2d 1086, 1088 (11th Cir. 1986) (“Actual injury need not be a
pecuniary loss, however. Humiliation, embarrassment, harm to reputation and other intangible
losses constitute actual injuries as well.”); Zhang v. GA Telesis, LLC, No. 17-CV-61984-UU, 2018
WL 11476109, at *5 (S.D. Fla. May 22, 2018) (“Although goodwill is intangible, and the
allegation therefore somewhat vague, loss of goodwill is a recoverable damage.”). 	And as
Plaintiffs argue and caselaw confirms, those intangible damages are both “real” and “actual.” See
ECF No. [294] at 201–02; Nutradose Labs, LLC v. Bio Dose Pharma, LLC, 710 F. Supp. 3d 1200,
1234 (S.D. Fla. 2024) (recognizing “damage to the goodwill” as a component of “actual
damages”).
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As the Court has already explained, Downey testified that Defendant’s misconduct in
downloading Plaintiffs’ proprietary information “caused damage” to their “reputation and good
will” because it had “an adverse effect on the value” of their research and development “through
the threat and exposure of” their “trade secret information.” See ECF No. [293] at 222. In
Downey’s assessment as Plaintiffs’ founder, president, and CEO, they suffered damages in the
amount of 10% of their research and development expenditure, which equated to $2.6 million. See
ECF No. [293] at 222. 	Because, “[g]enerally speaking, an owner of a business is competent to
give his opinion on the value of his property,” see Taxinet Corp. v. Leon, 114 F.4th 1212, 1225
(11th Cir. 2024) (citation modified), Downey’s testimony on the impact of Defendant’s actions on
Plaintiffs’ goodwill and reputation is sufficient evidence to support the jury’s award of
compensatory damages. See Kestenbaum v. Falstaff Brewing Corp., 514 F.2d 690, 698 (5th Cir.
1975) (explaining that the Federal Rules of Evidence permit testimony by a corporate owner about
his business’ goodwill).
Along with Downey’s testimony, Plaintiffs offered as evidence an email chain that
included Downey and 	Plaintiffs’ CFO 	and showed Plaintiffs’ 	research and 	development
expenditures. 	See ECF No. [290-4] at 2; ECF No. [293] at 184–85. That email corroborated
Downey’s testimony that Plaintiffs had spent $26 million on those areas. See ECF No. [290-4] at
2; Taxinet Corp., 114 F.4th at 1225 (“The owner of a business may give an opinion on value even
if that opinion is partially informed by what others have said or written.”). 	Taken together,
Downey’s testimony and the email showing Plaintiffs’ $26 million research and development
spending provide sufficient support for the jury’s award of compensatory damages to Plaintiffs.
For that reason, judgment as a matter of law is not appropriate based on insufficient evidence. See
Chaney, 483 F.3d at 1227 (noting that, on a Rule 50(b) motion, “a court’s sole consideration of
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the jury verdict is to assess whether that verdict is supported by sufficient evidence”).
Accordingly, Defendant’s Rule 50(b) Motion, ECF No. [300], is DENIED.
B. New Trial Under Rule 59
Rule 50(b) permits a party to “include an alternative or joint request for a new trial under
Rule 59” in a Rule 50(b) motion, see Fed. R. Civ. P. 50(b), and Defendant has done that here, see
ECF No. [300] at 7, 17–20. In the Rule 59 Motion, Defendant asks the Court to grant him a new
trial under Rule 59 because: (1) the Court’s decision not to allow him to testify remotely from
Dubai over Zoom unduly prejudiced him, so he argues the trial was unfair; and (2) the verdict is
contrary to the law and the evidence because it improperly awards both compensatory and nominal
damages and improperly awards attorney’s fees as nominal damages. See ECF No. [300] at 7, 17–
20. The Court disagrees.
1. 	The Court’s denial of Defendant’s motion to testify by Zoom was proper
Although defense counsel indicated during the final pretrial conference that Defendant would
appear at trial in person, see ECF No. [282] at 47, he decided not to do so, see ECF No. [293] at
4–6. Instead, on the morning trial was set to begin — a trial that had been specially set for seven
months — defense counsel informed the Court and Plaintiffs that Defendant was having issues
with his new company and did not want to buy the expensive airplane ticket from Dubai to Miami,
so he had decided “he didn’t want to spend the effort to come.” See ECF No. [293] at 4–6. Defense
counsel then asked the Court to allow Defendant to testify remotely from Dubai over Zoom. See
ECF No. [293] at 4–5.
After considering case law provided by Plaintiffs — case law Defendant did not challenge,
the Court denied Defendant’s oral motion to testify by Zoom. See ECF No. [293] at 6–7, 137–38,
142–43. 	The Court found Defendant had not “demonstrated good cause or compelling
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circumstances” because he had not shown that “unexpected reasons” like “an accident or illness”
had arisen to keep him from traveling for trial. See ECF No. [293] at 142–43. Defendant had just
chosen not to attend in person “merely for his own convenience” and to minimize his costs. See
ECF No. [293] at 142–43. 	The Court reiterated its denial after defense counsel explained that
Defendant wanted to attend a hearing in a separate case in Dubai court the same week as this trial
because Defendant had many months’ notice of the specially set trial date (which was chosen by
the Parties themselves) and could have asked for accommodations (like moving the trial date to
later in the two-week trial period or testifying out of order) to be able to attend both proceedings
in person. See ECF No. [293] at 6–7, 137–38, 142–47.
Later in the trial, after Plaintiffs rested their case without presenting portions of Defendant’s
deposition testimony, defense counsel made a second motion for Defendant to testify by Zoom.
See ECF No. [294] at 85–91. The Court again denied the motion because Defendant’s failure to
attend the trial in person was his own choice, and Rule 32 does not permit the use of Defendant’s
deposition testimony when he “procured his own absence.” See ECF No. [294] at 85–96; Fed. R.
Civ. P. 32(a)(4)(B) (prohibiting use of deposition testimony if “it appears that the witness’s
absence was procured by the party offering the deposition”). 	The Court acknowledged defense
counsel’s contention that there is little difference between live testimony by Zoom and live
testimony in the courtroom, but the Court noted neither Rule 32, Rule 43, nor the Parties’ caselaw
indicated live Zoom testimony is an appropriate substitute for live courtroom testimony. See ECF
No. [294] at 85–96.
The Court’s decision to deny Defendant’s motion to testify by Zoom was an evidentiary
ruling, and the “failure to admit highly probative evidence can at times warrant a new trial.” See
Lockaby, 2005 WL 8154687, at *4. But for that to be true, Defendant would have to meet a two-
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step test: he would have to show that the Court improperly excluded evidence and that the
exclusion had a substantial prejudicial effect on the verdict. See id.; Martin-Viana, 2025 WL
253414, at *3; Complete Bus. Sols., 608 F. Supp. 3d at 1239. Defendant cannot even meet step
one.
Federal Rule of Civil Procedure 43 makes it abundantly clear that witness “testimony must
be taken in open court unless a federal statute, the Federal Rules of Evidence,” the Rules
themselves, “or other rules adopted by the Supreme Court provide otherwise.” See Fed. R. Civ. P.
43(a). Indeed, “the court may permit testimony in open court by contemporaneous transmission
from a different location” only for “good cause in compelling circumstances.” See Fed. R. Civ. P.
43(a). 	The Court explained why Defendant had not shown good cause or compelling
circumstances three different times, which can be summarized this way: Defendant made his own
(last-minute) strategic choice not to appear in person for trial, and he based that choice on an
evaluation of the potential benefits and detriments of appearing versus the potential benefits and
detriments of not appearing. See ECF No. [293] at 6–7, 137–38, 142–47; ECF No. [294] at 85–
96. In the end, Defendant decided that he was willing to forgo the ability to participate in his trial,
including by testifying, in favor of saving himself the money and effort of flying to Miami and of
attending the Dubai court proceeding instead. See ECF No. [293] at 6–7, 137–38, 142–47; ECF
No. [294] at 85–96.
Defendant argues the Court should have granted his second motion to testify by Zoom
because “the change in circumstances when Plaintiffs rested their case” without using his
deposition testimony “established the good cause and compelling circumstances to permit remote
testimony” at that point. See ECF No. [308] at 8. But Defendant’s second motion was no stronger
than his first. As the Court explained then, how a party presents evidence “is a strategy call,” and
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there was nothing improper about Plaintiffs deciding they did not need or want to use Defendant’s
deposition testimony in their case in chief. See ECF No. [294] at 92. Although Defendant thought
trial “was going to go differently” and had “to pivot” when he learned of Plaintiffs’ choice, the
same was true when Defendant revealed at the last minute that he would not be attending in person.
See ECF No. [294] at 92–93. In that situation, Plaintiffs “were a little bit blindsided” because they
intended to call Defendant to testify, and “they had to pivot” their case. See ECF No. [294] at 92–
93. Defendant had to do the same, but because he “procured his own nonappearance at trial” and
could not meet the requirements of Rule 32(a)(4)(B) or Rule 43(a), he had to do so without being
able to testify by Zoom. See ECF No. [294] at 92–93.
For those reasons, Defendant cannot show that the Court improperly excluded his
testimony by Zoom, so Defendant cannot satisfy the two-step test required to demonstrate that an
evidentiary ruling warrants a new trial. 	See Lockaby, 2005 WL 8154687, at *4; Martin-Viana,
2025 WL 253414, at *3. 	Accordingly, the Court concludes that Defendant has not shown his
entitlement to a new trial based on the Court’s rejection of his Zoom testimony. See Alphamed,
432 F. Supp. 2d at 1334; Complete Bus. Sols., 608 F. Supp. 3d at 1239; Lockaby, 2005 WL
8154687, at *4; Martin-Viana, 2025 WL 253414, at *3.
2. 	The Verdict Properly Awards Both Compensatory and Nominal Damages
Defendant’s final argument is that the verdict is contrary to the law and the evidence
because it improperly awards both compensatory and nominal damages and improperly awards
attorney’s fees as nominal damages. See ECF No. [300] at 7, 17–20. Plaintiffs contend, however,
that the jury’s award of both nominal and compensatory damages is proper because the law permits
awarding nominal damages on their breach of fiduciary duty while at the same time awarding
compensatory damages on their misappropriation claim. See ECF No. [305] at 19–20. The Court
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agrees with Plaintiffs.
In the Amended Complaint, Plaintiffs sought punitive damages in their misappropriation,
unfair competition, and breach of fiduciary duty claims. See ECF No. [120] at 10–15, 18–19. But
the jury instructions made clear that Plaintiffs’ punitive damages request to the jury was tied to
liability on their breach of fiduciary duty claim. 	See ECF No. [284] at 12 (“You must decide
whether, in addition to compensatory damages, or nominal damages, punitive damages are
warranted as punishment to [Defendant] and as a deterrent to others. [Defendant] has admitted that
he breached his fiduciary duty to [Plaintiffs] and that he unfairly competed against [Plaintiffs].
[Plaintiffs] claim[] that punitive damages should be awarded against [Defendant] for this
conduct.”). Similarly, the jury instructions made clear that Plaintiffs’ exemplary damages request
was tied to liability on their misappropriation claim. See ECF No. [284] at 11 (“If you find that
[Defendant] has engaged in willful and malicious misappropriation of the trade secrets, you may
award ‘exemplary’ damages, that is, damages meant to make an example of [Defendant].”).
As the Court and the Parties discussed during the charge conference, see ECF No. [294] at
135–40, Florida law permits the jury to award nominal damages on breach of fiduciary duty claims,
see Am. Sales & Mgmt. Org. LLC v. Lopez, 373 So. 3d 1198, 1206 n.5 (Fla. 3d DCA 2023)
(collecting cases); Minotty v. Baudo, 42 So. 3d 824, 836 (Fla. 4th DCA 2010) (“Where a breach
of fiduciary duty is shown but no actual damages are proved, nominal damages may be awarded.”);
Rocco v. Glenn, Rasmussen, Fogarty & Hooker, P.A., 32 So. 3d 111, 116 n.2 (Fla. 2d DCA 2009)
(“[A] defendant may be liable for nominal damages for a breach of fiduciary duty even if the
plaintiff cannot prove actual damages.”).9 	And “Florida courts have held” that “a breach of
9 The Court had earlier determined Florida substantive law applies to the breach of fiduciary duty claim.
See ECF No. [294] at 139; ECF No. [282] at 17, 31 (noting Defendant agreed “to proceed under Florida
law”).
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fiduciary duty will support an award of punitive damages, even if no compensatory damages are
awarded.” Laney v. Am. Equity Inv. Life Ins. Co., 243 F. Supp. 2d 1347, 1354 (M.D. Fla. 2003);
cf. Ault v. Lohr, 538 So. 2d 454, 456 (Fla. 1989) (holding that “a finding of liability alone will
support an award of punitive damages even in the absence of financial loss for which compensatory
damages would be appropriate” (quotation marks omitted)). Under Florida law, then, it would be
legally proper for a jury to award punitive damages for a claim on which it awarded only nominal
actual damages and not compensatory actual damages, as “nominal damages will be presumed
from an encroachment upon an established right.” See Ault, 538 So. 2d at 456.
The sum total of the jury instructions and Florida law is this: the jury was legally
empowered to award nominal damages and punitive damages on Plaintiffs’ breach of fiduciary
duty claim while at the same time awarding compensatory damages and exemplary damages on
Plaintiffs’ misappropriation claim. Despite Defendant’s argument that the jury was “confused and
misapplied the law,” see ECF No. [308] at 8–10, there is nothing legally inconsistent about the
verdict’s award of all four categories of damages Plaintiffs requested, see Lopez, 373 So. 3d at
1203 (“[F]or a verdict to be legally inconsistent, it must contain two material findings that legally
cannot co-exist.”); Coba v. Tricam Indus., Inc., 164 So. 3d 637, 643–44 (Fla. 2015). While the
Court acknowledges that the jury initially misunderstood its instructions as they related to the
exemplary damages cap, see ECF No. [294] at 214–22, the final verdict form suffers from no such
infirmity, see ECF No. [294] at 228–29; ECF No. [286].
Given the series of events as the jury deliberated and returned its verdict, however, there is
of course the possibility that, as Defendant argues, the “jury was plainly confused and misapplied
the law.” See ECF No. [308] at 8–10. But “the Seventh Amendment demands that, if there is a
view of the case which makes the jury’s answers consistent, this Court must adopt that view.”
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Aquachem Co. v. Olin Corp., 699 F.2d 516, 521 (11th Cir. 1983). “It does not matter whether”
Defendant “can suggest equally plausible reasons for the verdict that would require reversal”
because the “test to be applied in reconciling apparent conflicts between the jury’s answers is
whether the answers may fairly be said to represent a logical and probable decision on the relevant
issues as submitted.” See id. (quotation marks omitted). This is true even if “the form of the issue
or alternative selective answers prescribed by the judge may have been the likely cause of the
difficulty and largely produced the apparent conflict.” See id. (quotation marks omitted).
For those reasons, “it is the duty of the courts to attempt to harmonize the answers, if it is
possible under a fair reading of them.” Gallick v. Baltimore & O. R. Co., 372 U.S. 108, 119 (1963);
see also Tech. Res. Servs., Inc. v. Dornier Med. Sys., Inc., 134 F.3d 1458, 1464 (11th Cir. 1998).
“Where there is a view of the case that makes the jury’s answers to special interrogatories
consistent, they must be resolved that way.” Atl. & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd.,
369 U.S. 355, 364 (1962). 	Courts “therefore must attempt to reconcile the jury’s findings, by
exegesis if necessary,” before they “are free to disregard the jury’s special verdict and remand the
case for a new trial.” Gallick, 372 U.S. at 119. Only if a court cannot reconcile the jury’s findings
can it conclude that there is a “fatal inconsistency” mandating a new trial. See id. at 120.
In keeping with its duty to adopt a view of the case that makes the jury’s answers consistent,
see Aquachem, 699 F.2d at 521, the Court concludes that the jury could have awarded nominal
damages and punitive damages on Plaintiffs’ breach of fiduciary duty claim while at the same time
awarding compensatory damages and exemplary damages on Plaintiffs’ misappropriation claim.
That result is consistent with Florida law, the Amended Complaint, and the jury instructions, which
is to say that it fairly can be said to represent a logical and probable decision on the relevant issues
as submitted. 	See id. 	Stated in a more modern way, that reading of the jury verdict is legally
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supportable. 	And because it is, the Court must resolve any apparent conflict that way. See
Ellerman Line, 369 U.S. at 364; Gallick, 372 U.S. at 119; Dornier, 134 F.3d at 1464.
There is no fatal inconsistency in the jury’s decision to award both compensatory damages
and nominal damages. See Gallick, 372 U.S. at 120. The Court is thus not free to disregard the
jury’s verdict and grant Defendant’s request for a new trial.10 See id. at 119. So Defendant has not
shown his entitlement to a new trial based on the jury’s award of both compensatory damages and
nominal damages. See Complete Bus. Sols., 608 F. Supp. 3d at 1239. Accordingly, Defendant’s
Rule 59 Motion, ECF No. [300], is DENIED.
IV. 	CONCLUSION
For the reasons explained above, Defendant’s Motion for Judgment as a Matter of Law, or
alternatively, an Order Granting a New Trial, ECF No. [300], is DENIED.
DONE and ORDERED in Chambers in Miami, Florida on March 6, 2026.
_____________________________________
MARTY FULGUEIRA ELFENBEIN
UNITED STATES MAGISTRATE JUDGE
cc: All Counsel of Record
10 The jury’s attempt to award attorney’s fees as part of nominal damages does not change this result. See
ECF No. [294] at 217. Although Defendant argues that “the solution to this error is not for the parties (and
the Court) to pick and choose what parts of the verdict it should follow” but instead to hold a new trial, see
ECF No. [308] at 10, Plaintiffs are correct that Defendant, not Plaintiffs, raised that issue with the jury, see
ECF No. [305] at 20. For that reason, the Court agrees with Plaintiffs that Defendant invited any error in
the jury’s attempt to award attorney’s fees as part of nominal damages. See ECF No. [305] at 20; Sarras,
575 F.3d at 1216. The Court also notes it has consistently indicated that “the entitlement to and amount of
attorney’s fees are a matter of law to be decided by the Court,” see ECF No. [288] at 1 n.1, which Plaintiffs
concede, see ECF No. [305] at 20. So there is no possibility Defendant will be subjected to an unlawful
award of attorney’s fees based on the verdict form, and there is no reason to resort to the drastic measure
of granting a new trial to remedy that issue.
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