Peterson v. BASF Corp.3/11/2003
the damages attributed to the 1992 Poast sales because they are not supported by the evidence. The jury awarded $2,000,000, and, with treble damages and attorney fees, BASF asserts this amounts to $6,141,356.27.
BASF contends that even accepting the farmers' theory of damages, the record conclusively demonstrates that Poast Plus was not fully EPA-registered for use on minor crops until late October 1992, well after the annual crop season. Consequently, it asserts that no damages may be awarded for that year. It cites a February 18, 1992, EPA letter to BASF indicating that the registration was approved, but requiring submission of several more documents. The letter stated that if BASF did not comply with these conditions, the registration would be cancelled, but that release of the product for shipment constituted acceptance of the conditions.
The jury, however, had evidence to support its award of damages for 1992. First, the jury could have concluded that the product could be released for shipment before the final technical requirements were met. Second, the farmers' expert, who calculated damages, explicitly did not use the entire sales year for his 1992 calculation. Instead, he excluded sales of Poast for January through March because the EPA registration was received in February and it would then take several weeks to obtain approval from the states. The evidence in the record supported the jury's verdict, and the district court properly denied JNOV on this ground.
Next, BASF contends that it is entitled to partial JNOV as to the damages award for the years 1995 and 1996. The jury awarded $4,000,000 damages for 1995 and $1,000,000 for 1996. BASF calculates that, after these amounts are trebled and prejudgment interest included, this amounts to $16,035,890.66, and BASF seeks reduction of the verdict by this amount.
BASF contends that the farmers cannot as a matter of law sustain their "lost opportunity" claim for 1995 and 1996, which rests on the assertion that BASF deprived them of the opportunity to refuse to buy Poast. It asserts that by May 1994, all of the information concerning EPA minor crop registration of Poast Plus was public knowledge and, by 1996, all of the plaintiffs had actually stopped buying Poast. BASF contends that as a matter of logic, they cannot claim to have suffered an ascertainable loss from a lost opportunity that they actually exploited, based on ignorance of facts they actually knew.
The farmers contend that they presented substantial evidence to the jury that BASF's unlawful conduct resulted in a broad-based, inflated price for the more expensive Poast herbicide resulting from mass consumer deception, exploitation, and "system of deceit." See Peterson I, 618 N.W.2d at 824. As discussed above, they asserted that this prevented farmers and state regulatory authorities from ascertaining the truth and consumers lost the opportunity to make informed purchasing decisions. They note that the jury was aware that in 1997, after BASF's scheme was uncovered and litigation commenced, BASF dropped the price of Poast nationwide to a price equivalent to Poast Plus.
The farmers' expert testified extensively as to the basis for his conclusion as to the damages the farmers suffered. He testified that the 1995 damages were $6,440,647, BASF's expert testified they were $2,290,500, and the jury awarded $4,000,000. For 1996, the farmers' expert testified damages were $2,419,533, BASF's expert concluded they were just $550,220, and the jury awarded $1,000,000. The jury heard and considered all the evidence, and there was evidence to support its verdict; the district court did not err in denying JNOV as to damages occurring in 1995 a
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