8th Circuit requires statistical evidence to prove damages

Nebraska Plastics v. Holland Colors et al. 8th Circuit #No. 04-2035/04-2180 District of Nebraska 05/13/05 The 8th Circuit Court of appeals last Friday May 13, 2005 required Plaintiff Nebraska Plastics to present more detailed statistical evidence to prove its future damages claim against Holland Colors Americas, Inc. Nebraska Plastics had sued Holland and another company OMYA for causing its plastic fencing products to rapidly lose its colored coating and to "chalk up.” Nebraska Plastics’ $1,500,000 verdict went down to barely $220,000 after the District Court set aside the future damage portion of the verdict, allowed the Defendant Holland Colors to take a credit for payments the 2nd defendant OMYA paid the Plaintiff and on its own $50000 counterclaim against the Plaintiff. In the future when a commercial Plaintiff claims future damages claim for prospective warranty claims, it will have to provide a basis for determining the amount of warranty claims, in other words an historical warranty claims analysis. This would be a matter for expert testimony to provide analysis to the jury. The District Judge excluded the Plaintiff's damage expert and also set aside the future damage verdict because the expert did not address these statistical issues, nor did other non-expert evidence much help the jury. The 8th Circuit also approved Hollands motion to take credit against its judgment for OMYA's settlement with the Plaintiff and for its own counterclaim against Plaintiff. While the Appeals court found this an unsettled issue of Nebraska law, it decided that the Defendant should be able to take credit against its judgment for the settling party's payment. See Jameson v. Liquid Controls Corp., 618 N.W.2d 637 (Neb. 2000) {protanto settlement rule applied to product liability judgment defendant} with Royal Indem. Co. v. Aetna Casualty & Surety Co., 229 N.W.2d 183, 189 (Neb. 1975){no contribution for intentional tortfeasors}. As the court found that the defendant did not seek to mislead the Plaintiff until after it started selling the coatings, the appeals court likely determined this case is closer to a product liability action, and thus one allowing the Defendant the benefit of the protanto settlement rule.