Lord & Taylor, LLC v. White Flint, L.P.
PUBLISHED AUTHORED OPINION filed. Originating case number: 8:13-cv-01912-RWT. . [15-1995, 15-2064]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LORD & TAYLOR, LLC; LT PROPCO, LLC,
Plaintiffs – Appellees,
WHITE FLINT, L.P., f/k/a White Flint Mall, LLP, now known as White Flint Mall,
Defendant – Appellant,
ALAN H. GOTTLIEB,
LORD & TAYLOR, LLC; LT PROPCO, LLC,
Plaintiffs – Appellants,
WHITE FLINT, L.P., f/k/a White Flint Mall, LLP, now known as White Flint Mall,
Defendant – Appellee,
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ALAN H. GOTTLIEB,
Appeals from the United States District Court for the District of Maryland, at Greenbelt.
Roger W. Titus, Senior District Judge. (8:13-cv-01912-RWT)
Argued: December 6, 2016
Decided: February 28, 2017
Before WILKINSON, AGEE, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Harris wrote the opinion, in which Judge
Wilkinson and Judge Agee joined.
ARGUED: Stuart Scott Morrison, KATTEN MUCHIN ROSENMAN LLP, Washington,
D.C., for Appellant/Cross-Appellee. Michelle DeFinis Gambino, GREENBERG
TRAURIG LLP, McLean, Virginia, for Appellees/Cross-Appellants. ON BRIEF: Laura
Metcoff Klaus, Washington, D.C., David G. Barger, GREENBERG TRAURIG LLP,
McLean, Virginia, for Appellees/Cross-Appellants.
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PAMELA HARRIS, Circuit Judge:
Lord & Taylor, LLC, operates a retail department store along Rockville Pike in
Montgomery County, Maryland. From 1977 to 2015, the store was part of the White
Flint Shopping Center, an enclosed shopping mall (the “Mall”). But in 2015, the Mall’s
operator, White Flint, L.P., closed the Mall and began demolition in order to make way
for a mixed-use redevelopment. Lord & Taylor sued White Flint, claiming that White
Flint had breached the parties’ contract by closing the Mall without Lord & Taylor’s
A jury found White Flint in breach of contract and awarded Lord & Taylor $31
million in damages. Both parties appeal, arguing primarily that the damages award is too
high (White Flint) or too low (Lord & Taylor). Because we find no error in the district
court’s capable management of a lengthy trial, we affirm.
This is the latest chapter in a long-running dispute between the parties over the
planned redevelopment of the Mall site. The Montgomery County Council approved the
redevelopment in 2012, as part of a broader plan to revitalize the surrounding area, and
litigation commenced soon thereafter. We have decided one appeal already in this case,
see Lord & Taylor, LLC v. White Flint, L.P., 780 F.3d 211 (4th Cir. 2015) (“White Flint
I”), and the details of the parties’ original agreement and the County’s zoning process are
set out in that opinion.
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We recap only briefly here. In 1975, White Flint, then planning the development
of what would become the Mall, reached an agreement with Lord & Taylor: Lord &
Taylor would lease land on the Mall site and serve as an “anchor” tenant for the Mall,
along with co-anchor Bloomingdale’s. And in exchange, White Flint would construct an
enclosed “first class” mall and then maintain it until at least 2042.
agreement required White Flint to secure Lord & Taylor’s consent before building any
additional structures or making alterations to the Mall’s design or appearance.
The Mall opened in 1977 and operated successfully for many years, before more
recently experiencing a drop in business. The parties, not surprisingly, disagree about the
cause of this decline.
According to White Flint, the Mall’s struggles reflect the
weakening of the mall business generally, as consumer preferences change and ecommerce grows; for Lord & Taylor, the blame goes to White Flint, for allowing the
Mall to fail and even hastening its demise by offering tenant buy-outs, all to facilitate the
redevelopment plan. Whatever the cause, in 2012, Bloomingdale’s chose not to renew its
lease, and by 2013, the vast majority of tenants had left the Mall.
The Mall officially closed in January 2015, leaving Lord & Taylor the sole
business operating on the premises. By then, White Flint already had demolished the
Bloomingdale’s building, with further construction to come.
redevelopment plan calls for transforming what once was an enclosed mall into a mixeduse development, complete with residential, retail, recreational and office space.
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Lord & Taylor objected to the redevelopment, arguing that the clear terms of the
parties’ agreement required White Flint to maintain the Mall, and that the proposed
mixed-use alternative would negatively affect its business by making customer access
less convenient and denying the store the benefit of foot traffic from Mall customers.
Negotiations between the parties proved fruitless, and Lord & Taylor filed its first
complaint against White Flint in July 2013.
In that original complaint, what Lord & Taylor sought was not damages but an
injunction, prohibiting White Flint from carrying out the proposed redevelopment and
requiring it instead to continue operation of the Mall. The district court denied the
requested relief. Assuming that White Flint had breached its contractual obligations, the
district court reasoned, Lord & Taylor would be entitled to monetary damages for any
harm that resulted. But injunctive relief, the district court concluded, would be infeasible
under the circumstances, requiring the kind of ongoing judicial supervision of a major
and complex commercial undertaking that is outside court competence. In our previous
encounter with this case, we affirmed the denial of injunctive relief as well within the
discretion of the district court. See White Flint I, 780 F.3d at 217–29.
So Lord & Taylor amended its complaint to bring the alternative claim
hypothesized by the district court: one for damages resulting from White Flint’s alleged
breach of contract. And for good measure, Lord & Taylor added a claim for fraud, as
well. According to Lord & Taylor, White Flint’s breach and fraud had cost it somewhere
between $70 and $100 million. Specifically, Lord & Taylor sought damages for lost
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profits during the construction phase of the redevelopment; for the costs of redesigning
and reconstructing its store to conform to the new development; and for the loss of
bargained-for property rights, in the form of use restrictions and easements violated by
the planned redevelopment.
Not all of Lord & Taylor’s claims survived to trial. Lord & Taylor’s fraud claim,
for instance, alleged that the store had been misled about White Flint’s plans by a letter in
which White Flint assured Lord & Taylor that it did not “inten[d] to take any action or
undertake any changes at the [M]all in violation of [the contract].” J.A. 598. The district
court granted summary judgment to White Flint, deeming the fraud claim “utterly
meritless,” J.A. 603, in part because White Flint’s statement of intent was not false, and
in part because there was no evidence that Lord & Taylor, a “large multi-national . . .
operation” with the “most sophisticated . . . people running it,” had relied on or been
deceived by the statement, J.A. 601–02.
The district court also rejected one of Lord & Taylor’s three damages theories,
under which Lord & Taylor sought to recover for lost property rights as well as lost
profits. Specifically, the court granted White Flint’s motion to exclude Lord & Taylor’s
proposed expert testimony on the value of its easements and use restrictions under the
contract, explaining that the expert’s data was unreliable and, in any event, that the
proper measure of damages for the deprivation of such property rights is lost profits
The remainder of Lord & Taylor’s case went to trial, where a jury heard evidence
and argument for twelve days. On the merits of its breach claim, Lord & Taylor argued
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that the proposed redevelopment was a clear violation of its contract with White Flint,
and that White Flint had hastened the Mall’s decline in order to reap the rewards of
redevelopment. In response, White Flint argued that any breach of contract should be
excused by reason of impossibility. According to White Flint, economic trends combined
with the departure of co-anchor Bloomingdale’s made continued operation of the Mall
impossible, and its substitute mixed-use redevelopment would be an overall economic
boon to the area.
Much of the trial, however, focused on the question of damages, with Lord &
Taylor presenting two distinct theories under which it sought recovery. First, Lord &
Taylor claimed damages for lost profits during the demolition and construction phase of
the project, when customer access would be disrupted and the store would lose the
benefit of foot traffic in the area. Lord & Taylor’s expert calculated lost profits of up to
$31 million, on the assumption that the construction phase would last for between ten and
thirteen years, starting with the alleged breach in 2012.
White Flint took issue with Lord & Taylor’s calculations, and presented expert
testimony of its own projecting a construction period of only three and a half years and
estimating damages using a significantly lower profit margin than that employed by Lord
& Taylor’s expert. White Flint also insisted that any damages award should reflect not
only lower profits during construction, but also the greater profits that would accrue to
Lord & Taylor in subsequent years, once construction was complete and the store became
part of a successful mixed-use development. The district court disagreed, holding that
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any such future benefits were too speculative to be the basis of a damages award, and
instructing the jury to that effect.
Lord & Taylor’s second damages theory centered around the costs of
reconfiguring its store to take account of the fact that it no longer would be part of an
enclosed mall. Lord & Taylor presented testimony from Kerry Mader, a long-time store
executive responsible for renovations, who explained the extensive redesign that would
be required to accommodate the shift from a multi-entrance mall store to a stand-alone
store, and calculated construction costs of between $30 and $36 million. White Flint did
not present evidence of its own regarding construction costs or argue for a different cost
estimate. But it did object to the admission of Mader’s testimony, arguing that Mader
was offering expert opinion without having been qualified as an expert under Rule 702 of
the Federal Rules of Evidence. The district court rejected that argument, concluding that
Mader was offering lay rather than expert testimony, based on Mader’s own previous
experience and “day-to-day work with the company,” and that any shortcomings in his
cost estimate should be addressed by “spirited cross-examination” of the witness. J.A.
After several days of jury deliberation and an agreement by the parties to accept a
non-unanimous verdict, the jury found White Flint in breach of contract, rejected White
Flint’s defenses, and awarded Lord & Taylor $31 million in damages. The $31 million
figure is consistent with both Lord & Taylor’s estimate of lost profits (up to $31 million)
and its estimate of construction costs (between $30 and $36 million), and the jury’s
general verdict form did not specify the theory on which damages were awarded.
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Both parties timely appealed.
District courts have broad discretion to manage jury trials.
review a district court’s jury instructions, evidentiary rulings, and discovery rulings for
abuse of discretion only.
See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997)
(evidentiary rulings); Coll. Loan Corp. v. SLM Corp., a Delaware Corp., 396 F.3d 588,
595 (4th Cir. 2005) (jury instructions); Lone Star Steakhouse & Saloon, Inc. v. Alpha of
Virginia, Inc., 43 F.3d 922, 929 (4th Cir. 1995) (discovery rulings).
We begin with White Flint’s appeal. White Flint does not challenge the jury’s
finding that it breached its contract with Lord & Taylor. Instead, it challenges the $31
million damages award, raising two arguments, each aimed at one of Lord & Taylor’s
theories of recovery. With respect to lost profits, White Flint argues that the district court
erred by instructing the jury not to consider, in calculating damages, the redevelopment’s
potential positive impact on Lord & Taylor’s profits. And with respect to renovation
costs, White Flint argues that Mader’s construction cost estimate was improperly
admitted as lay opinion testimony.
For the reasons given below, we find neither
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In response to Lord & Taylor’s expert testimony on lost profits, White Flint
presented its own expert, Scott DeCain, to testify to the future benefits of the
redevelopment project for Lord & Taylor’s bottom line. DeCain acknowledged that Lord
& Taylor’s sales would decline during the construction period, which he estimated at
three and a half years. But according to DeCain, once construction on the redevelopment
was complete, Lord & Taylor’s net profits would increase – in the amount of $10 million
over five years – as a result of the “infinitely superior” new site plan, replacing an
outdated enclosed mall with a more desirable mixed-use complex. J.A. 5031. And so,
White Flint argued, any damages award based on lost profits should include an offset or
deduction to account for these future economic benefits.
The district court disagreed. Under Maryland law, the district court explained in
an oral ruling, damages must be proved with “reasonable certainty.” J.A. 5337. And
White Flint’s evidence of future benefit to Lord & Taylor, the court concluded, was
“entirely too speculative” to meet that standard. J.A. 5332. Neither the timing of the
redevelopment nor its ultimate success, the court held, was established with the requisite
level of certainty. See, e.g., J.A. 5332 (“We don’t know what delays the development is
going to endure[.]”); id. at 5333 (“We don’t know whether this will be the rage of
Montgomery County or the beached whale of Montgomery County.”). Accordingly,
while the court allowed White Flint to argue the predicted economic upside of its
redevelopment plan as a defense to Lord & Taylor’s breach claim, it instructed the jury
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not to consider “the potentially positive economic effects of the planned redevelopment”
in assessing damages for lost profits. J.A. 5567. 1
We find no abuse of discretion in the district court’s determination. As the parties
agree, this case is governed by Maryland law. See White Flint I, 780 F.3d at 215. And
under Maryland law, it is clear that damages related to lost profits “may not be recovered
unless they can be proved with ‘reasonable certainty.’”
Atkinson Warehousing &
Distribution, Inc. v. Ecolab, Inc., 99 F. Supp. 2d 665, 668 (D. Md. 2000) (citing Impala
Platinum Ltd. v. Impala Sales (U.S.A.), Inc., 389 A.2d 887, 907 (Md. 1978)). Complete
certainty is not required, and reasonable inferences may be drawn from the evidence. See
M & R Contractors & Builders v. Michael, 138 A.2d 350, 355 (Md. 1958).
“anticipated profits” must be shown “with reasonable certainty so that the evidence rises
above speculation or conjecture.” John D. Copanos & Sons Inc. v. McDade Rigging &
Steel Erection Co., 403 A.2d 402, 405 (Md. Ct. Spec. App. 1979).
The relevant jury instruction reads in full:
[White Flint] has presented evidence of its plans for redevelopment of the
White Flint Mall property and the potentially positive effects of that future
development on the Lord & Taylor store. I have just instructed you that
damages must be proved with reasonable probability or certainty. Because
of the uncertainty of the evidence associated with both the timing and
future financial success of the redevelopment as well as its possible impact
on the net income of the Lord & Taylor store, I instruct you that in the
event that you decide to make an award of damages to the plaintiffs for lost
income, you may not reduce your award because of the potentially positive
economic effects of the planned redevelopment.
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The district court properly applied that standard and concluded that on the record
before it, White Flint could not establish to a “reasonable certainty” whether and to what
extent Lord & Taylor would benefit from the redevelopment. 2 We have no basis for
disturbing that judgment. As the district court observed, the evidence made clear that the
redevelopment remained a work in progress:
“We have no idea exactly where the
buildings are going to be, how many there are going to be. . . . We don’t know what
delays the development is going to endure . . . I don’t know whether it’s going to lease up
overnight.” J.A. 5332–33. On cross-examination, DeCain himself acknowledged that he
did not know, for instance, when construction on various phases of the project would start
or end, who might join the project as anchor tenants, or what other retail tenants might
None of this, to be clear, is to fault DeCain or his work. A real estate development
of the scale contemplated here is an inherently risky endeavor, extending years into the
future and marked by significant uncertainty. Any prediction of the degree of success, no
White Flint suggests that the district court applied a different legal standard,
misreading Maryland law to prohibit any recovery of future profits by a new business
without a financial track record. We disagree. Though the district court noted that “[t]he
cases, generally speaking, reject the effort of someone to recover future profits from a
business that’s not operating, [and] never has operated,” J.A. 5331–32, it clearly
understood the ultimate question to be whether evidence of lost profits was sufficiently
certain or unduly speculative, see J.A. 5337 (“[T]he basic notion is that damages have to
be proved with reasonable certainty.”); id. at 5566 (instructing jury that evidence of
positive effects of development is too uncertain to consider in assessing damages). We
see no conflict with Maryland law, which permits consideration of whether a business is
new or old in determining whether anticipated profits can be shown with reasonable
certainty. See John D. Copanos & Sons, Inc., 403 A.2d at 404–05.
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matter how sophisticated, necessarily will rest on assumptions about a long list of
At bottom, deciding when anticipated future profits from such an
enterprise have been established as “reasonably certain” is a fact-intensive judgment call,
within the sound discretion of a trial court. The district court did not abuse that discretion
Lord & Taylor separately claimed damages for the cost of reconfiguring and
renovating its store to accommodate the new site plan and, in particular, the loss of
several entrances that had connected it to the original Mall. To support this second
theory of damages, Lord & Taylor offered the testimony of Kerry Mader, an executive of
Lord & Taylor’s parent company responsible for store design, store construction, and
facilities, who opined that construction costs would fall between $30 and $36 million.
White Flint objected, arguing that Mader’s proposed testimony was expert in nature and
that Mader had not been qualified as an expert under Federal Rule of Evidence 702.
The district court rejected that claim and allowed Mader to testify as a lay opinion
witness under Federal Rule of Evidence 701. The court recognized that Rule 702’s
reliability requirements may not be circumvented by allowing unqualified expert
In connection with its challenge to Lord & Taylor’s estimate of lost profits,
White Flint also appeals the district court’s decision not to compel discovery of financial
data and profit margins for all of Lord & Taylor’s stores nationwide, limiting discovery
instead to seven stores in the surrounding region. The “scope and conduct of discovery
are within the sound discretion of the district court,” Lewis v. Bloomsburg Mills, Inc., 608
F.2d 971, 973 (4th Cir. 1979), and we perceive no reason to disturb the district court’s
exercise of discretion on this matter.
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testimony in the guise of lay testimony. And the court understood that there may be a
“fine line” between Rule 701 lay opinion and Rule 702 expert testimony. J.A. 3639. In
this case, however, the district court concluded that because Mader’s testimony was
based on Mader’s own experience – his “day-to-day work” as an officer of Lord &
Taylor – it was admissible as lay testimony, without the necessity of qualifying Mader as
an expert. J.A. 3642–43.
Again, we have no basis for disturbing the district court’s judgment. It is true, as
White Flint argues, that Mader was not qualified as an expert under Federal Rule of
Evidence 702, which governs testimony by “expert” witnesses that is based on
“scientific, technical, or other specialized knowledge.” But Federal Rule of Evidence
701 permits a lay witness – with no need for expert qualification – to give opinion
testimony that is “rationally based on the witness’s perception” and helpful to
determining a fact in issue, so long as it is not based on the same “scientific, technical, or
other specialized knowledge” covered by Rule 702. And while the line between the two,
as the district court recognized, can be “a fine one,” see United States v. Perkins, 470
F.3d 150, 155 (4th Cir. 2006) (internal quotation marks and citation omitted), the key to
Rule 701 lay opinion testimony is that it must arise from the personal knowledge or firsthand perception of the witness. See id. at 155–56; MCI Telecommunications Corp. v.
Wanzer, 897 F.2d 703, 706 (4th Cir. 1990) (allowing lay opinion testimony under Rule
701 where it is “well founded on personal knowledge as distinguished from hypothetical
facts” and based on “relevant historical or narrative facts that the witness has perceived”)
(internal quotation marks omitted).
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We have applied that general rule to permit business employees – like Mader – to
opine on accounting projections under Rule 701, so long as their opinions are based on
their first-hand experience on the job. See MCI Telecommunications, 897 F.3d at 706
(holding that business bookkeeper may give lay opinion testimony on projected profits on
the “basis of facts and data perceived by him” in his role as bookkeeper). Indeed, in an
unpublished opinion that is directly relevant here, we have allowed lay testimony as to
projected construction costs when it is based on the witness’s personal experience with
similar projects. See Lake Ridge Apartments, LLC v. Bir Lakeridge, LLC, 335 F. App’x
278 (4th Cir. 2009) (unpublished).
The district court did not abuse its discretion when it concluded that under this line
of authority, Mader’s testimony was admissible under Rule 701 as lay opinion testimony.
With 38 years of industry experience, Mader supervises store design and construction at
Lord & Taylor on a “day-to-day” basis. Drawing on personal knowledge gleaned from
that on-the-job experience – including “relevant historical . . . facts” regarding the more
than 50 redesign projects he has overseen, see MCI Telecommunications, 897 F.2d at 706
– Mader described past Lord & Taylor renovation projects, outlined the kinds of changes
necessitated by the loss of mall entrances, and explained the increased construction costs
customarily associated with renovations to a store that remains open for business. The
district court reasonably could conclude that like the witness in Lake Ridge Apartments,
Mader’s ultimate projection of construction costs was predicated on his “previous
experience,” 355 Fed. App’x at 284, and “personal knowledge and perception,” see MCI
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Telecommunications, 897 F.2d at 706, rather than the kind of specialized reasoning
process subject to Rule 702 as expert testimony.
We note, as did the district court, that this determination is consistent not only
with our precedent but also with the Advisory Committee’s Note to Rule 701. That Note
recognizes that “most courts have permitted the owner or officer of a business to testify
to the value or projected profits of the business, without the necessity of qualifying the
witness as an accountant, appraiser, or similar expert.” FED. R. EVID. 701 advisory
committee’s note to 2000 amendment.
Such testimony, the Committee explains, is
admissible under Rule 701 because it is based not on “experience, training or specialized
knowledge within the realm of an expert,” but on “the particularized knowledge that the
witness has by virtue of his or her position in the business.” Id. It requires nothing more
than acknowledgement of an accounting identity – that the “profits” referenced in the
Note equal revenue minus cost – to see that the cost estimate offered by Mader, an officer
at Lord & Taylor, falls squarely under this contemplated category of permissible lay
testimony. See id.
White Flint argues strenuously that Mader’s hands-on experience is insufficient to
substantiate his testimony because, for instance, Mader visited the store only once, and
had never before estimated costs for a Maryland project. But those arguments go to the
weight to be given Mader’s testimony, not to its lay character or admissibility. The
district court expressly invited robust cross-examination of Mader about any perceived
deficiencies in his testimony, and White Flint obliged. It was within the province of the
jury to decide whether it found Mader’s testimony credible, and we will not revisit that
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determination here. See United States v. Burgos, 94 F.3d 849, 868 (4th Cir. 1996) (en
banc) (determining witness credibility is for factfinder, not reviewing court). 4
We turn finally to Lord & Taylor’s cross-appeal. In addition to seeking damages
for lost profits and renovation costs, Lord & Taylor requested damages under a third
theory, for the alleged taking of its property rights under its agreement with White Flint.
Specifically, Lord & Taylor argued that it had property rights – easements and use
restrictions – “separate and distinct” from its right to operate a store on the site, and that it
should be separately compensated for the loss of those rights. Cross-Appellants Reply
Br. at 14. The district court rejected that theory when it excluded the testimony of Lord
& Taylor’s property appraisal expert, William Harvey, who attempted to quantify the
value of those property rights. Lord & Taylor now argues that the district court’s
decision was an abuse of discretion. We disagree.
Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),
district courts have a “gatekeeping responsibility” to “ensur[e] that an expert’s testimony
both rests on a reliable foundation and is relevant to the task at hand.” Nease v. Ford
Because we conclude that the district court did not abuse its discretion in
admitting Mader’s testimony under Rule 701, we need not consider Lord & Taylor’s
alternative argument that any error in this regard would have been harmless. We note,
however, that the jury’s $31 million damages award was consistent not only with Lord &
Taylor’s renovation-cost theory of recovery, but also with the evidence presented by Lord
& Taylor regarding lost profits of up to $31 million. And the jury’s general verdict form
– to which White Flint did not object at the close of trial – does not specify the basis for
the jury’s award. With or without Mader’s testimony, in other words, the jury’s verdict
may well be supported by sufficient evidence of lost profits.
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Motor Co., No. 15-1950, 2017 WL 437665, at *6 (4th Cir. Feb. 1, 2017) (quoting
Daubert, 509 U.S. at 597) (emphasis in original). Exercising that gatekeeping function,
the district court here excluded Harvey’s testimony for two independent reasons. First,
the court ruled that Harvey’s data was unreliable. And second, the court held that the
entire premise of Harvey’s valuation testimony was irrelevant, because Maryland law
does not permit recovery for abridged property rights as distinct from and in addition to
Without casting any doubt on the district court’s reliability finding, we affirm on
the court’s second ground: Under Maryland law, “loss of profits is the governing factor”
in calculating damages stemming from a violation of a restrictive use covenant.
Freedman v. Seidler, 194 A.2d 778, 782 (Md. 1963).
At least when it comes to
commercial properties like Lord & Taylor, that is, where easements and use restrictions
protect the income-producing capacity of the property, damages for a violation of those
easements and restrictions may be measured only in terms of lost profits. See Redner's
Markets, Inc. v. Joppatowne G.P. Ltd. P'ship, No. CIV.A. RDB-11-1864, 2013 WL
5274356, at *4 (D. Md. Sept. 17, 2013), aff'd, 594 F. App'x 798 (4th Cir. 2014) (applying
Maryland law). Allowing a commercial plaintiff to recover for lost damages and also for
abridged property rights would amount to a double recovery – or, in the apt phrase of the
district court, to “getting six or more pieces of pie out of a four-piece pie.” J.A. 2287.
The district court committed no legal error or other abuse of discretion in applying long-
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established Maryland law to reject Lord & Taylor’s claim to separate damages for the
taking of property rights. 5
For the foregoing reasons, we affirm in full the judgment of the district court.
Construed generously, Lord & Taylor’s opening brief may be understood also to
challenge the grant of summary judgment against Lord & Taylor on its fraud claim.
Reviewing the record in the light most favorable to Lord & Taylor, we affirm for the
reasons given by the district court. See supra at 598–604.
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