Packgen v. Berry Plastics Corporation, et al

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Sandra L. Lynch, Appellate Judge and Kermit V. Lipez, Appellate Judge. Published. [16-1348]

Case: 16-1348

Document: 00117112977

Page: 1

Date Filed: 02/01/2017

Entry ID: 6066621

United States Court of Appeals
For the First Circuit
No. 16-1348
PACKGEN,
Plaintiff, Appellee,
v.
BERRY PLASTICS CORPORATION;
COVALENCE SPECIALTY COATINGS, LLC,
Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]

Before
Torruella, Lynch, and Lipez,
Circuit Judges.

Jonathan M. Dunitz, with whom Taylor R. Neff and Verrill Dana
LLP were on brief, for appellants.
Kurt E. Olafsen, with whom Olafsen & Butterfield LLC was on
brief, for appellee.

February 1, 2017

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TORRUELLA, Circuit Judge.
Plastics

Corporation

and

Entry ID: 6066621

Defendants-Appellants Berry

Covalence

Specialty

Coatings,

LLC

(collectively, "Berry") appeal from a jury's award of $7.2 million
in

damages

to

Plaintiff-Appellee

Packgen

resulting

failure of material Berry had supplied to Packgen.

from

the

Berry contends

that the district court erred by (1) denying Berry's motion to
exclude Packgen's damages expert, (2) allowing Packgen employees
to

testify

concerning

potential

Packgen

customers'

intent

to

purchase Packgen's new product, and (3) failing to correct these
errors by denying Berry's motion for judgment as a matter of law,
a new trial, or to alter or amend the judgment.
I.
A.

We affirm.

BACKGROUND

Factual Background
Packgen manufactures a polypropylene intermediate bulk

container used to transport and store catalyst, a hazardous and
volatile chemical agent used to refine crude oil.

No other company

manufactures similar polypropylene containers, but refineries also
lease metal flow bins to transport and store catalyst.
mid-2000s, Packgen redesigned its bulk containers.

In the

It made the

redesigned container, called the Cougar, out of a laminated fabric.
Berry supplied the laminated fabric and represented that it could
meet Packgen's quality standards.

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As

part

of

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the

Date Filed: 02/01/2017

redesign,

Packgen

Entry ID: 6066621

worked

with

CRI/Criterion ("CRI"), a catalyst manufacturer and its largest
customer at the time, to modify the new Cougar to meet CRI's
specialized requirements.

After a lengthy process, CRI began

purchasing Cougars in October of 2007.

From October 2007 to March

2008, CRI purchased 7,567 Cougars for nearly $1.5 million, and it
placed an order for 1,359 Cougars to be delivered in April 2008.
Packgen

also

began

marketing

the

Cougar

to

North

American refineries in 2007, focusing on thirty-seven refineries
where CRI supplied catalyst containers.

Those refineries were

likely customers because they would experience the Cougars CRI
used,

and

they

were

all

long

distances

from

their

catalyst

suppliers, so they would save significant transport costs using
the lighter, more compact Cougar rather than flow bins.

Packgen's

sales manager testified that decision-makers at all thirty-seven
refineries had told her "that they were going to be purchasing the
[C]ougars on their next turnaround cycle."

Decision-makers at ten

of the refineries had also told Packgen's president that they "were
willing to purchase and try [Packgen's] containers."
On April 4, 2008, one of the Cougars CRI had purchased
split open while being moved.

Over the next weeks, Packgen learned

that other Cougars had also failed, in some cases causing the
catalyst inside to combust, and it began to investigate.

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Packgen

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determined that the Cougar had failed because some of the laminated
fabric supplied by Berry was faulty, and that it had sold CRI
approximately two thousand Cougars made from the faulty laminated
fabric.

Following the incident, CRI cancelled its order of 1,359

Cougars for the month of April, and it never ordered another
Cougar.

In addition, the thirty-seven refineries did not order

Cougars as Packgen had anticipated.
B.

Procedural History
Packgen

filed

suit

against

Berry

in

Maine

Superior

Court, alleging breach of contract, breach of implied and express
warranties, and negligence.

Berry removed the case to the United

States District Court for the District of Maine.
Packgen designated Mark G. Filler, a certified public
accountant and certified valuation analyst, as an expert witness
on

damages.

Berry

moved

to

exclude

Filler's

opinions

and

testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), and the district court held a two-day Daubert
hearing.

On September 12, 2014, the district court issued a forty-

seven-page order denying Berry's motion to exclude.

It concluded

that a variety of facts supported Filler's ten-year projections of
Packgen's lost profits from CRI and the thirty-seven refineries,
his assumption that Packgen had a one-in-ten chance each year of
selling Cougars to each of the thirty-seven refineries, and his

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assumption that the refineries did not buy Cougars only because of
the

product

failure,

and

it

determined

that

Filler

did

not

improperly combine forecasting methodologies from both business
valuation and lost profits models.
Prior to trial, Berry filed a motion in limine seeking
to exclude testimony by Packgen employees concerning CRI's and the
thirty-seven refineries' intent to purchase Cougars and why they
decided not to make those purchases.
ruling on the motion for trial.
ruled

that

Packgen's

president

The district court reserved

At trial, the district court
could

"testify

as

to

what

a

decision-maker at CRI told him about what CRI's intent [to purchase
Cougars] was" but not "why [CRI was] ceasing business."
district

court

applied

its

ruling

to

subsequent

The

testimony,

allowing Packgen's president and sales manager to testify that
decision-makers at the thirty-seven refineries had expressed their
intent to purchase Cougars but not about why those thirty-seven
refineries subsequently did not make purchases.
After a trial, on November 12, 2015, the jury returned
a verdict against Berry and awarded $7,206,646.30 in damages to
Packgen.

On January 29, 2016, the district court denied Berry's

motion for judgment as a matter of law, for a new trial, or to

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alter or amend the judgment.1

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Entry ID: 6066621

The district court entered judgment

against Berry on March 8, 2016, and Berry timely appealed.
II.

ANALYSIS

Berry argues on appeal that the district court abused
its discretion by admitting Filler's testimony regarding Packgen's
lost profits from the refineries because (1) he did not establish
that the Cougar failures caused Packgen any lost profits from the
refineries, (2) no facts supported his ten-year loss period, and
(3) no facts supported his one-to-ten odds of selling Cougars to
the refineries.

Berry further argues that the district court

abused its discretion by admitting Filler's testimony regarding
damages attributable to lost business from CRI because (1) no facts
supported his assumption that CRI would purchase 1,261 units per
month, (2) no facts supported his ten-year loss period, and (3)
his

analysis

improperly

valuation methodologies.

combined

lost-profit

and

business-

In addition, Berry asserts that the

district court erred by allowing Packgen's employees to testify
about CRI's and the refineries' stated intent to purchase Cougars,
because their testimony relied on hearsay, and that it erred by
denying Berry's motion for judgment as a matter of law, for a new

1

The trial judge was not the same as the judge who held the
Daubert hearing.
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trial, or to alter or amend the judgment.

Entry ID: 6066621

We address these

arguments in turn.
A.

The District Court Did Not Abuse Its Discretion by Admitting
Filler's Testimony
A

district

court

must

"ensur[e]

that

an

expert's

testimony both rests on a reliable foundation and is relevant to
the task at hand."

Daubert, 509 U.S. at 597.

To determine whether

testimony is sufficiently reliable -- Berry does not challenge the
testimony's relevance -- a district court must determine whether
it is "based on sufficient facts or data," was "the product of
reliable principles and methods," and whether the expert "reliably
applied the principles and methods to the facts of the case."
Fed. R. Evid. 702.

"Exactly what is involved in 'reliability'

. . . must be tied to the facts of a particular case."

Milward

v. Acuity Specialty Prods. Grp., Inc., 639 F.3d 11, 14-15 (1st
Cir. 2011) (quoting Beaudette v. Louisville Ladder, Inc., 462 F.3d
22, 25-26 (1st Cir. 2006)).

"So long as an expert's scientific

testimony rests upon good grounds, based on what is known, it
should be tested by the adversarial process, rather than excluded
for fear that jurors will not be able to handle the scientific
complexities."

Id. at 15 (quotation marks and citation omitted)

(quoting Daubert, 509 U.S. at 590).
We

review

a

district

court's

decision

to

admit

an

expert's testimony for abuse of discretion, unless the district
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court "altogether abdicate[d] its role under Daubert."
Jenkins, 732 F.3d 51, 64 (1st Cir. 2013).

Entry ID: 6066621

Smith v.

There is no plausible

argument that the district court abdicated its role here, no matter
how many times Berry's briefs repeat the word "abdicate" or a
variant.2

The district court held a two-day Daubert hearing and

issued a forty-seven page opinion addressing Berry's arguments and
explaining the reasons Filler's testimony had sufficient support.
Our review is only for abuse of discretion.
1.

Filler's
Testimony
Refineries

Concerning

the

Thirty-Seven

Filler testified that he used simulation software to
calculate Packgen's likely lost profits from sales of Cougars to
the thirty-seven refineries over a ten-year period beginning in
April 2008 and ending in April 2018.

Filler's model assumed that

each year "Packgen had a one in ten chance of selling Cougars" to
each refinery.

Once a refinery began buying Cougars, "Packgen

w[ould] continue to sell Cougars to [that] refinery" until the end
of the ten-year period.

If Packgen had not yet sold to a

particular refinery, the model assumed Packgen would "try one more
time."

The model also subtracted "actual mitigating sales to

these refineries" in the first four years of the ten-year period
(which

2

were

known)

and

"expected

Nineteen.
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mitigating

sales"

for

the

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remaining six years.

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Entry ID: 6066621

This yielded net lost profits of $1,909,073:

the difference between Packgen's likely net profits if the material
that Berry supplied had not been defective, and its likely net
profits after the Cougars failed.3
a.

There Was Sufficient Evidence
Support Filler's Testimony

of

Causation

to

Berry first argues that Filler should have conducted a
market survey to determine which refineries would actually have
purchased Cougars, rather than "assuming" that the thirty-seven
refineries would have purchased Cougars.

Berry also asserts that

Filler was required to account for other reasons Cougars failed
(i.e., improper exposure to "freezing and thawing," mishandling,
and punctures from a forklift).

There was adequate evidence,

however, that the thirty-seven refineries would purchase Cougars,
including testimony that those refineries would see substantial
savings by using the Cougars, that the refineries' decision-makers
had expressed an intent to purchase Cougars, and that those
refineries would see CRI using the Cougars and be persuaded to try
them.

3

Filler submitted his expert report in 2012, but his loss period
ran through 2018.
In estimating Packgen's sales following the
Cougar failures, he therefore used four years of actual sales data
and projected the remaining six years.
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Moreover, Filler was not required to do a market survey,
as Berry suggests.

The existence of other methods of gathering

facts does not mean that the facts he relied on were insufficient.
See Fed. R. Evid. 702 advisory committee's note to 2000 amendment
("The amendment is broad enough to permit testimony that is the
product of competing principles or methods . . . .").

Filler

"based his calculations on facts meeting the[] minimum standards
of relevance and reliability."

i4i Ltd. P'ship v. Microsoft

Corp., 598 F.3d 831, 856 (Fed. Cir. 2010) (citing Fed. R. Evid.
702).

His testimony alone "did not have to establish the validity

of [a] central, disputed factual claim[]" -- that the defective
Cougars caused the thirty-seven refineries to avoid buying Cougars
-- "to have a factual basis and be admissible."

Int'l Adhesive

Coating Co. v. Bolton Emerson Int'l, Inc., 851 F.2d 540, 545 (1st
Cir. 1988).

Berry was free to argue to the jury that Filler's

failure to conduct a survey made his opinion less persuasive,4 but
that failure did not make his opinion inadmissible.
Similarly, the fact that a few Cougars failed for reasons
in addition to Berry's defective product does not make Filler's
testimony unreliable.

An expert should "adequately account[] for

4

Berry did question Filler's basis for assuming that Berry's
defective material caused refineries not to purchase Cougars, but
it chose not to conduct a market survey of its own and use the
results to impeach Filler's testimony.
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obvious alternative explanations."

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Entry ID: 6066621

Fed. R. Evid. 702 advisory

committee's note to 2000 amendments (citing Claar v. Burlington
N.R.R., 29 F.3d 499 (9th Cir. 1994)).

Filler did that here,

finding that "there w[ere] no social, environment[al], [or] legal
reasons why all of a sudden [CRI5] would stop buying [Cougars],"
and that the competitive market had not changed.

The minor

incidents of Cougar failures that Berry cites are very different
in both type and impact from shipping two thousand defectivelymanufactured Cougars, and Filler was not required to eliminate
every other possible cause.

Ambrosini v. Labarraque, 101 F.3d

129, 140 (D.C. Cir. 1996) ("The fact that several possible causes
might remain 'uneliminated' . . . only goes to the accuracy of the
conclusion, not the soundness of the methodology."); see also
Currier v. United Techs. Corp., 393 F.3d 246, 252 (1st Cir. 2004)
(holding that damages expert's "fail[ure] to take into account"
differences in situations between various employees was "a matter
of

weight

rather

than

admissibility");

Cummings

v.

Standard

Register Co., 265 F.3d 56, 65 (1st Cir. 2001) (affirming admission
of damages expert's testimony because, although "using [other]
variables

would

have

resulted

in

5

a

lower,

and

perhaps

more

Although Filler specifically mentioned only CRI, the question
was not specific to CRI, and the potential causes Filler considered
are equally applicable to the refineries.
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accurate, figure . . . whatever shortcomings existed in [the
expert's] calculations went to the weight, not the admissibility,
of the testimony").
b.

Sufficient Facts Supported Filler's Ten-Year Loss
Period

Filler's model calculated losses for a ten-year period.
Berry contends that the "only support" for this period "is a
conversation [Filler] had with" Packgen's president.

Filler did

discuss a ten-year period with Packgen's president, determining
that it would take five years for the negative effects of the
Cougar failures to "wear off" and another five years for sales to
recover fully to where they would have been absent the failures.
Those discussions do provide some support for Filler's opinion.
See E. Mountain Platform Tennis, Inc. v. Sherwin-Williams Co.,
Inc., 40 F.3d 492, 503 (1st Cir. 1994) (holding that testimony
from plaintiff's employees that "it would take . . . three years
to

rebuild

the

business"

supported

an

award

of

future

lost

profits).
Filler's ten-year period was also supported by other
facts.

Filler considered the opinion of Packgen's catalyst expert

that Cougars would save the thirty-seven refineries substantial
costs, Packgen had "an excellent market presence," and catalyst
use would increase until the end of the ten-year period.

In

addition, Packgen was the only supplier of intermediate bulk
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containers, and there were few other options for the refineries,
suggesting that few if any other competitors would enter the
market.
Importantly, Filler was not projecting market conditions
for a full ten years.

His loss period began when the Cougars

failed in 2008, but the Daubert hearing took place six years later.
In those six years, no major new competitors entered the catalyst
container market, and Cougar sales to the refineries had begun to
recover and "exceed[ed]" Filler's original projections.

Actual

profits remained lower than the profits Filler projected if Berry's
material had not failed, however.

Accordingly, it was reasonable

to assume that Packgen's lost profits would continue into the
future, perhaps at least four more years.
Taken as a whole, the evidence was more than sufficient
to support Filler's ten-year loss period.
c.

Sufficient Facts Supported Filler's Assumption That
One Refinery in Ten Would Begin Buying Cougars Each
Year

Filler's model included an assumption that each year ten
percent of the refineries not yet purchasing Cougars would begin
to

do

so.

Berry

characterizes

Filler's

one-in-ten

odds

as

"untethered to any facts or data" and again asserts that Filler
should have conducted a market survey.

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Filler

relied

Page: 14

on

Date Filed: 02/01/2017

multiple

facts

in

Entry ID: 6066621

reaching

his

conclusion, including that the thirty-seven refineries would see
CRI using Cougars, that Cougars could provide substantial cost
savings to the refineries, and the refineries' expressed interest
in Cougars.

Filler also discussed the likely success rate with

Packgen personnel, who thought Packgen's success rate with the
refineries would be "[a] lot higher than ten percent."

Filler did

not agree with Packgen's estimates, however, because Packgen's
personnel "had no evidence" to support their estimates, and Filler
understood that there was a lot of "inertia" in the refinery
market.
There

are

certainly

sufficient

facts

to

support

an

inference that Packgen would make some sales to the thirty-seven
refineries.

The issue is whether those facts provided the minimal

basis necessary to support Filler's assumption that one in ten
refineries would begin purchasing Cougars each year and allow him
to present his calculations to the jury.

In allowing Filler to

testify, the district court pointed to those facts and recognized
that Filler had rejected Packgen's much higher estimated success
rate.

The district court also rejected Berry's suggestion that

Filler was required to conduct a market survey, finding that Berry
could argue to the jury that Filler's reliance on Packgen's list
of thirty-seven refineries made his opinion unpersuasive.

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The district court did not abuse its discretion in doing
so.

An expert's methodology must be "consistent with standards

of the expert's profession."

SMS Sys. Maint. Servs. v. Digital

Equip. Corp., 188 F.3d 11, 25 (1st Cir. 1999).

Experts may,

however, make reasonable assumptions that are consistent with the
evidence

available

to

them.

See

Cummings,

265

F.3d

at

65

(affirming the district court's decision to allow a damages expert
to testify where the expert's assumptions were those made by
similar experts "with some frequency").
That

is

what

Filler

did.

When

pressed

on

cross-

examination, Filler admitted that "[t]here is no empirical data"
on what percentage of the thirty-seven refineries would purchase
Cougars.

The one-in-ten odds, however, produced "results that

[Filler] thought were reasonable" because the 13,000 units sold in
year ten were comparable to Packgen's sales to CRI -- an existing
customer before the Cougars began to fail6 -- and produced a fiftypercent market penetration by year ten.

6

Berry characterizes Filler's testimony that his results "were
reasonable" as "circular reasoning."
It is not.
As Filler's
testimony shows, his model was reasonable because it produced
volumes that were "comparable to what [Packgen was] currently
selling [to CRI]." Filler "compar[ed] the unknown to an analogous
known experience," a proper methodology. Alaska Rent-A-Car, Inc.
v. Avis Budget Grp., Inc., 738 F.3d 960, 970 (9th Cir. 2013)
(holding that criticisms of an expert's choice of comparator
company and extrapolation from one market to a larger region went
to "the weight of the testimony . . . not its admissibility").
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Packgen

points

Page: 16

to

facts

Date Filed: 02/01/2017

suggesting

that

Entry ID: 6066621

Filler's

assumptions were, in fact, conservative; Packgen's regional sales
manager testified that, based on her discussions with the thirtyseven refineries, she expected eighty-five to ninety percent of
them to order Cougars.

In addition, Packgen's personnel told

Filler that they expected a sales rate that was "[a] lot higher"
than the ten-percent rate he used.

Berry is really challenging

Filler's choice of a sales rate, and the district court did not
abuse its discretion in determining that that is an argument
properly made to the jury.
Berry's other arguments concerning the refineries are
not persuasive.
2.

Filler's Testimony Concerning CRI
Filler used a "deterministic model" -- which does not

account for future contingencies -- to calculate Packgen's damages
attributable to business lost from CRI.

He assumed that what

Packgen was "selling [to CRI] in the six-month period" prior to
the Cougar failures "would have continued."

This represented the

period in which CRI purchased the newly-customized Cougars.

The

average monthly sales for that period were 1,261 Cougars per month,
and Filler projected that average out for ten years.
Berry

argues

that

the

district

court

abused

its

discretion by admitting Filler's opinion because (1) there was no

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factual support for the ten-year loss period Filler used, (2) he
had "no objective evidence that CRI would continue to purchase"
Cougars at the same rate it had in the first six months, and (3)
Filler combined lost-profit and business-valuation methodologies,
creating "an untested, non-peer reviewed model."
Berry's argument about the ten-year loss period with
respect to CRI fails for the same reasons described above with
respect to the refineries.

There was sufficient evidence that the

market was unlikely to change over ten years, and it did not, in
fact, change in the six years following the accident and prior to
the Daubert hearing.
There was also sufficient evidence to support Filler's
assumption that CRI would continue to purchase Cougars in at least
the same quantities as it had in the six months prior to the Cougar
failures.

CRI had dedicated considerable effort to customizing

the Cougars for its needs, indicating that it found them useful
and was likely to continue to purchase them.
relied

on

substantial

evidence

that

the

In addition, Filler
market

for

catalyst

containers was unlikely to change dramatically and that there were
no other suppliers of intermediate bulk containers.

"It is . . .

common practice to estimate lost future profits by examining
profits earned in the comparable past."

Atlas Truck Leasing, Inc.

v. First NH Banks, Inc., 808 F.2d 902, 904 (1st Cir. 1987).

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That

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is precisely what Filler did here.

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Additional data would have

been helpful, but Berry was able to make that argument to the jury.
Berry's

contention

that

Filler

should

"dating back to 2003" is misplaced.

have

considered

sales

Sales prior to the six-month

period were of a different product that had not been specifically
tailored to CRI's needs, and so did not represent "the comparable
past."

Id.
Berry's assertion that Filler improperly "comingl[ed]"

lost-profit

and

business-valuation

methodologies

also

fails.

Berry relies entirely on Filler's testimony comparing a lost
profits calculation to the "valu[ation] of a business that was
destroyed" using "an income approach."

Berry nowhere ties this

to Filler's actual calculations, however, to explain how they were
flawed or inappropriate.

Filler explained in great detail how he

calculated Packgen's lost profits using its likely sales to CRI,
prices, production and capital costs, and other expenses.

That

testimony, and the exhibits to Filler's report, make clear that he
calculated lost profits for the ten-year period, and his references
to business valuations were merely an explanatory analogy that did
not affect the admissibility of Filler's opinions.
We find no error in the admission of Filler's testimony
concerning CRI.

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B.

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The District Court Did Not Abuse Its Discretion by Admitting
Testimony Concerning the Refineries' Intent to Purchase
Cougars
The district court allowed Packgen's president and its

sales manager to testify that decision-makers at the thirty-seven
refineries had told them, prior to the Cougar failures, that they
would

purchase

containers,

7

Cougars

over

the

Berry's

next

time

objection.

they
The

needed

catalyst

district

court

determined that the statements, although hearsay, were admissible
as the refineries' then-existing state of mind under Fed. R. Evid.
803(3).
"We review rulings admitting or excluding evidence for
abuse of discretion."

Shervin v. Partners Healthcare Sys., Inc.,

804 F.3d 23, 41 (1st Cir. 2015).

Rule 803(3) allows the admission

of any "statement of the declarant's then-existing state of mind
(such as motive, intent, or plan)."

"To be admissible under this

exception, a declaration, among other things, must mirror a state
of mind, which, in light of all the circumstances, including
proximity in time, is reasonably likely to have been the same
condition existing at the material time."

Colasanto v. Life Ins.

Co. of N. Am., 100 F.3d 203, 212 (1st Cir. 1996) (internal

7

Refineries change out their catalyst at regular intervals. It
is primarily during these change-overs that they use containers
such as the Cougar.
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quotation

marks

Page: 20

omitted).

Date Filed: 02/01/2017

"Because

disputes

Entry ID: 6066621

over

whether

particular statements come within a state-of-mind exception are
fact sensitive, 'the trial court is in the best position to resolve
them.'"

United States v. Rivera-Hernández, 497 F.3d 71, 81 (1st

Cir. 2007) (quoting Colasanto, 100 F.3d at 212).
Out-of-court statements by a customer or employee may be
admissible under Rule 803(3) to show intent or motive.

See Catalan

v. GMAC Mortg. Corp., 629 F.3d 676, 694-95 (7th Cir. 2011);
Callahan

v.

A.E.V.,

Inc.,

182

F.3d

237,

252

(3d

Cir.

1999)

(upholding the admission of employees' testimony that customers
"told them that they no longer shopped at the plaintiffs' stores
because

of

plaintiff

the

[defendant's]

testified

that

a

operations").

loan

officer

"told

In

Catalan,

her

that

a

the

plaintiffs' home-equity loan applications would not be approved
until their foreclosure was removed."

629 F.3d at 694.

Rule

803(3) applied because "the loan officer was speaking during the
employment relationship concerning matters within the scope of her
employment,"

and

so

collective intentions."

her

statement

Id. at 694-95.

"describ[ed]

the

bank's

Here, each statement by

a refinery's decision-maker reflected that refinery's "collective
intention" to purchase Cougars the next time the refinery needed
catalyst containers.

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Although Packgen's president and sales manager both
attributed

the

refineries'

statements

of

intent

to

decision-

makers, Berry contends that "[t]his is not sufficient" because the
decision-makers were not specifically named.8
cites do not compel that conclusion.

But the cases Berry

Allen v. Sybase, Inc. is

inapposite because there, the testimony was impermissibly offered
to prove the witness's state of mind, rather than the declarants'.
468 F.3d 642, 660 n.14 (10th Cir. 2006).

The testimony in Smith

Fiberglass Prods., Inc. v. Ameron, Inc. was excluded because the
declarant was identified only as "a gentleman" who stopped by a
tradeshow booth, without describing who he was, where he worked,
or

whether

customer.

he

had

decision-making

authority

for

a

potential

7 F.3d 1327, 1330-31 & n.2 (7th Cir. 1993).

Here,

Packgen's witnesses knew the declarants and testified that all
declarants were decision-makers at their respective refineries.
Berry also maintains that there was an insufficient
"temporal connection between the 37 refineries' intent to purchase
and

their

conversations

with"

Packgen's

8

president

and

sales

Berry also takes issue with the admission of "the out-of-court
statements of an unnamed person at one refinery to prove the states
of mind of all other refineries." (emphasis omitted). Packgen's
president only testified as to ten refineries, but Packgen's sales
managers testified that all thirty-seven refineries told her "they
were going to order the [C]ougars." Thus, there was evidence as
to all refineries, and the jury was not required to "extrapolate
from these ten refineries to all 37," as Berry asserts.
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manager because the refineries intended to purchase Cougars during
their "next cycle," and refineries' catalyst cycles could vary
from six months to two years.

As Berry's own cases explain,

however, Rule 803(3) requires "contemporaneity between the event
that

gives

declarant's

rise

to

the

expression

state

of

of

that

mind

state

of

or

intention

mind

or

and

the

intention."

Amerisource Corp. v. RxUSA Int'l Inc., No. 02-CV-2514 (JMA), 2009
WL 235648, at *2 (E.D.N.Y. Jan. 30, 2009); Metro. Enter. Corp. v.
United Techs. Int'l Inc., No. 3:03-cv-01685-JBA, 2006 WL 798870,
at *1 (D. Conn. Feb. 28, 2006) ("[A] statement . . . must be
contemporaneous with the mental state [and] it must be timely such
that the declarant had no time to fabricate.").
only

that

the

refineries'

expected

Here, Berry argues

purchase

date

was

contemporaneous to the statements, not their state of mind.

not
That

the refineries would actually purchase at a later date, however,
does

not

mean

that

their

statements

of

intent

were

not

abuse

its

contemporaneous with their mental state.
The

district

court

therefore

did

not

discretion in admitting the hearsay testimony under Rule 803(3).
C.

Berry's Post-Judgment Motion
Berry's arguments in support of its post-judgment motion

for judgment as a matter of law, a new trial, or to alter or amend
the judgment rely entirely on its claims that the district court

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should have excluded Filler's testimony and the hearsay testimony
concerning the thirty-seven refineries.

Because the district

court did not abuse its discretion in admitting that testimony,
and the evidence at trial was the same as that at the Daubert
hearing, it did not err by denying Berry's post-judgment motion.
III.

CONCLUSION

For the foregoing reasons, we affirm district court's
judgment.
Affirmed.

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