Bright Harvest Sweet Potato Company, Inc. v. H.J. Heinz Company, L.P.

Filing 120

MEMORANDUM DECISION AND ORDER Plaintiff's Third Motion in Limine (Dkt. 87 ) is GRANTED. Defendant's First Motion in Limine (Dkt. 69 ) is GRANTED in part and DENIED in part. Plaintiff's Fourth Motion in Limine (Dkt. 88 ) is GRANTED . Defendant's Second Motion in Limine (Dkt. 70 ) is DENIED in part, and RESERVED in part. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
BRIGHT HARVEST SWEET POTATO
COMPANY, INC.,

Case No. 1:13-cv-296-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.
H.J. HEINZ COMPANY, L.P.,
Defendant.

INTRODUCTION
The Court has before it two motions in limine filed by Plaintiff Bright Harvest
Sweet Potato Company, Inc. (Dkts. 87, 88) and two motions in limine filed by Defendant
H.J. Heinz Company (Dkts. 69, 70). The Court will address each motion below. The
Court recognizes other motions are pending, but will defer ruling until further briefing
has been received and reviewed.
ANALYSIS
1. Plaintiff’s Third Motion in Limine Re: Advice of Counsel.
Bright Harvest moves to exclude evidence that Heinz relied upon the advice of
counsel when it stopped ordering sweet potato fries from Bright Harvest. (Dkt. 87). In
support of its motion, Bright Harvest alleges Heinz refused to provide attorney-client
communications between its employees and counsel who negotiated the Co-Pack

MEMORANDUM DECISION AND ORDER - 1

Agreement (“CPA”). Given such refusal, Bright Harvest requests the Court preclude
Heinz from using these communications to explain what Heinz intended or understood
the CPA language to mean. Additionally, Bright Harvest moves to preclude Heinz from
using attorney-client communications to show that Heinz’s breach of the CPA did not
constitute willful misconduct or gross negligence. Specifically, Heinz wants to introduce
(1) testimony from Jonathan Bailey, (2) Exhibit 2019, and (3) Exhibit 2122.
Heinz seeks to show its intent when it entered into the CPA by introducing Exhibit
2019. That exhibit is a string of e-mails between Heinz’s employees and legal counsel
written prior to the signing of the CPA. Heinz asserts that it disclosed this exhibit to
Bright Harvest when Tim Hensley forwarded the string of e-mails to Rex King. However,
during Daniel Shaw’s deposition, Heinz’s counsel indicated that the e-mails were
privileged communications and that Hensley did not waive that privilege when he
improperly disclosed the e-mails. See Dep. of Daniel Shaw 46:25 – 49:7, Ex. D,
Nicholson Decl., Dkt. 108.
Heinz now seeks to introduce the e-mails it previously claimed were privileged
and elicit testimony of the related conversations with counsel. Heinz may not use the
attorney-client privilege as both a sword and a shield. See In re Fresh and Process
Potatoes Antitrust Litig., 2014 WL 1413676, at*5 (D. Idaho 2014). A party may not
selectively reveal only those portions of the privileged communications most beneficial
to its case. See id. Accordingly, the Court will grant this portion of Bright Harvest’s

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motion and preclude Heinz from using attorney-client privileged communications to
explain what it intended or understood the CPA language to mean.
Heinz also seeks to elicit testimony from Jonathan Bailey, who was involved in
the decision to stop purchasing product from Bright Harvest in September 2012.
Additionally, Heinz might introduce Exhibit 2122 to illustrate its legal counsel’s position
on Heinz’s ability to stop purchasing product under the CPA. Exhibit 2122 is a string of
e-mails between Heinz’s employees discussing legal counsel’s opinion of whether certain
actions would breach the CPA.
During Hensley’s deposition, Heinz instructed Hensley not to answer questions
regarding legal advice he received about Heinz’s ability to stop purchasing under the
CPA. See Hensley Dep. at 218:1-219:11, Ex. D, Nicholson Decl., Dkt. 108. Likewise,
during Kris Ketola’s deposition, Heinz objected to conversations with in-house attorney
Leslie Britton about Heinz’s exit strategy. Ketola Dep. at 97:1-98:17, Ex. D, Nicholson
Decl., Dkt. 108. Also, during his deposition, Bailey testified that he e-mailed Britton
about whether Heinz could self-produce sweet potato fries. See Def.’s Opp’n at 3, Dkt.
98. During discovery, Heinz claimed privilege and did not produce these e-mails in
discovery. See Nicholson Decl., Exh. E, Dkt. 108-1. Despite the fact that Heinz claimed
privilege in these communications, it now seeks to introduce Exhibit 2122—a thread of emails between Bailey, Hensley, and Ketola discussing the privileged communications
previously objected to by Heinz.

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Heinz again attempts to use attorney-client privilege as both a shield and a sword.
It objected to questions during depositions about exit strategy with legal counsel and now
seeks to introduce such evidence at trial. Also, it asserted privilege as to e-mails with
Britton but seeks to introduce the content of those e-mails through other means. Heinz
cannot selectively choose to produce only certain privileged communications. Moreover,
Heinz cannot deprive Bright Harvest of the opportunity to cross-examine deponents
about evidence that Heinz intends to present at trial. See, e.g., In re Fresh and Process
Potatoes Antitrust Litig., 2014 WL 1413676, at*5. Accordingly, the Court will grant
Bright Harvest’s motion and preclude Heinz from using attorney-client communications
to show its state of mind when it exited the contract.
2. Defendant’s First Motion in Limine Re: Damages.
a. Other Damages
Heinz asks the Court to preclude Bright Harvest from seeking damages relating to:
1) loss of goodwill with raw potato suppliers, (2) loss of goodwill with Arkansas Capital
and Simmons First Bank, (3) loss of industry reputation, and (4) loss of critical skill work
force. (Dkt. 69). Bright Harvest does not seek to recover these items at trial. Accordingly,
the Court grants this request. The Court will not, however, exclude evidence simply
because it may incidentally relate to one of these categories. Any disputes regarding such
evidence will be resolved at sidebar during trial.

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b. Evidence Relating to Lost Profits
Heinz seeks to preclude Bright Harvest from presenting evidence of “lost profits.”
(Dkt. 69). Heinz asserts that Section 16(e) of the CPA bars Bright Harvest from
recovering lost profits. That section states:
Neither [Bright Harvest] nor Heinz shall be responsible or
liable for the lost profits of the other party in case of a breach
of this Agreement, unless the party breaching this Agreement
has caused such lost profits due to its willful misconduct or
gross negligence.
Am. Compl., Ex. A, Dkt. 11-1, at 11.
Bright Harvest contends that this language only applies when a party seeks lost
profits in connection with a claim for indemnification. Heinz, in contrast, contends that
the language applies to the entire agreement. It is for the Court to decide whether the
terms of a contract are ambiguous as a matter of law. Carpenters Pension Trust Fund v.
Underground Constr. Co., 31 F.3d 776, 778 (9th Cir. 1994). However, a disagreement
about a contract's meaning does not necessarily render the contract ambiguous. Int’l
Union of Bricklayers & Allied Craftsman Local No. 20 v. Martin Jaska, Inc., 752 F.2d
1401, 1406 (9th Cir. 1985). To be ambiguous, the terms of the contract must be
susceptible to two different and reasonable interpretations—each being consistent with
the language of the contract as a whole. Kennewick Irrigation Dist. v. United States, 880
F.2d 1018, 1032 (9th Cir. 1989) (citation omitted). “If a contract's terms are clear and
unambiguous, the contract's meaning and legal effect are questions of law to be

MEMORANDUM DECISION AND ORDER - 5

determined from the plain meaning of its own words.” Bream v. Benscoter, 79 P.3d 723
(2003).
Although Section 16(e) is located within the indemnity section of the CPA, the
only reasonable interpretation of this provision is that it applies to the entire CPA. The
term “Agreement,” as used throughout the CPA, refers to the CPA as a whole. Section
16(e) explicitly states that neither party is responsible for lost profits “in case of a breach
of this Agreement.” Am. Compl., Ex. A, Dkt. 11-1, at 11. It is unreasonable to limit
application of this language to only instances when a party seeks lost profits in
connection with indemnification. Thus, Section 16(e) applies to both indemnification and
non-indemnification provisions. Accordingly, to recover lost profits, the plain language
of the Agreement requires that Bright Harvest show Heinz breached the Agreement and
caused lost profits due to Heinz’s willful misconduct or gross negligence.
c. Evidence Relating to Reasonable Overhead
Additionally, the parties disagree as to whether the term “profits” includes
reasonable overhead. The Court's role in interpreting a contract is to effectuate the mutual
intent of the contracting parties. Straub v. Smith, 175 P.3d 754, 758 (Idaho 2007). A court
should first look to the four corners of the contract to ascertain the intent of the
contracting parties. See id. If the contract's language is clear and unambiguous on its face,
the intent of the parties is most readily ascertained from simply reading the contract. Id.
The Agreement does not define “profits.” It is unclear from Section 16(e) alone
whether the term “profits” refers to gross profits or net profits. Net profits, unlike gross

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profits, are adjusted for additional expenses, such as reasonable overhead. See BLACK’S
LAW DICTIONARY (10th ed. 2014). Heinz contends that, by definition, the term “profits”
includes reasonable overhead. (Dkt. 88-1, at 7). It is true that the U.C.C., as adopted in
Idaho, authorizes the recovery of “profit (including reasonable overhead)” when damages
are inadequate to put the seller in as good a position as performance would have done.
See IDAHO CODE ANN. § 28-2-708 (2015). However, this does not mean that whenever
parties refer to “lost profits” in drafting their contract, they necessarily include reasonable
overhead. The statute simply authorizes an award of profits and reasonable overhead, i.e.
gross profits, when damages are otherwise inadequate. It does not dictate that “lost
profits” always includes reasonable overhead. This much is made clear by the fact that
the CPA references “lost profits,” not “profits (including reasonable overhead).”
Each section of the CPA must be interpreted with reference to the whole contract
and not in isolation. See Kennewick Irrigation Dist., 880 F.2d at 1032. A court should
construe a contract in a manner that gives full meaning and effect to all its provisions and
avoid an interpretation that renders part of the contract meaningless or unreasonable. Id.
The Purchase Order, as explicitly incorporated into the signed CPA, separately mentions
overhead and profits. King Decl., Ex. E, Dkt. 47-3, at 73. To hold that the term “profits”
includes overhead would make language in the Purchase Order superfluous. Thus, in
order to give meaning to each word as used in the contract, the term “profit” in Section
16(e) does not include overhead. Accordingly, at trial, Bright Harvest is not required to
show that Heinz caused lost overhead due to willful misconduct or gross negligence.

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d. Evidence of Willful Misconduct or Gross Negligence
Heinz seeks to exclude evidence of lost profits because Bright Harvest failed to
allege willful misconduct or gross negligence in its amended complaint. (Dkt. 69). Heinz
maintains that Bright Harvest did not argue these theories until Bright Harvest responded
to Heinz’s Motion for Summary Judgment. Id. at 8.
In its amended complaint, Bright Harvest alleges that it “suffered damages
including lost profit.” Am. Compl. at 5, Dkt. 10. Bright Harvest’s allegation must be “a
short and plain statement of the claim” that shows it is entitled to relief. See FED. R. CIV.
P. 8(a)(2) (2015). Such a statement must “give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41,
47 (1957). “This simplified notice pleading standard relies on liberal discovery rules and
summary judgment motions to define disputed facts and issues and to dispose of
unmeritorious claims.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002).
The Court finds that Heinz had fair notice of Bright Harvest’s claim. The
unambiguous language of the CPA notifies both parties that lost profits may only be
recovered by showing that the other party breached the CPA through their willful
misconduct or gross negligence. As a result, Heinz was aware that Bright Harvest would
be resting its claim for lost profits on those grounds. Accordingly, Bright Harvest is
entitled to present evidence to support its claims.

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The Court has another concern with Heinz’s motion; it is essentially a motion for
summary judgment, not a motion in limine. See, e.g., Fort Hall Landowners Alliance,
Inc. v. Bureau of Indian Affairs, No. CV-99-52-E-BLW, 2007 WL 2187256, at *1 (D.
Idaho July 16, 2007) (rejecting a motion in limine because it sought a ruling as a matter
of law). Heinz asks the Court to weigh evidence regarding willful misconduct and gross
negligence. The deadline for dispositive motions has passed. As such, the Court will deny
this portion of Heinz’s motion.
e. King and Baker
Heinz requests the Court preclude King and Baker from testifying as expert
witnesses. (Dkt. 69). Bright Harvest seeks to elicit testimony of damages from King and
Baker, but never disclosed King or Baker as expert witnesses. Bright Harvest contends
that if King and Baker’s testimonies are considered expert opinion testimony, it has
adequately disclosed these testimonies.
Rule 26(a)(2)(B) requires a party to provide a written report identifying the expert
witness and listing details of anticipated testimony. However, the report is needed only
for witnesses “retained or specially employed to provide expert testimony in the case” or
“whose duties as the party’s employee regularly involve giving expert testimony.” FED.
R. CIV. P. 26(a)(2)(B). King and Baker are outside the scope of this rule because they
work as the President and Chief Financial Officer for Bright Harvest. Thus, Bright
Harvest was not required to file a detailed written report under Rule 26(a)(2)(B).

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On the other hand, if Bright Harvest wants King and Baker to offer opinion
testimony under Rule 702, 703, or 705, they must still provide opposing counsel with the
more limited disclosure required by Federal Rule of Civil Procedure 26(a)(2)(C). That
Rule provides:
Witnesses Who Do Not Provide a Written Report. Unless otherwise
stipulated or ordered by the court, if the witness is not required to
provide a written report, this disclosure must state:
(i)

the subject matter on which the witness is expected to present
evidence under Federal Rule of Evidence 702, 703, or 705;
and

(ii)

a summary of the facts and opinions to which the witness is
expected to testify.

FED. R. CIV. P. 26(a)(2)(C).
Bright Harvest claims it made this disclosure “in document form as well as
deposition testimony.” Pl.’s Opp’n at 10-11, Dkt. 101. However, this alleged disclosure
did not take place prior to the February 17, 2014 deadline set forth in the Case
Management Order. Additionally, Bright Harvest failed to identify the subject matter of
the opinion testimony that King and Baker were expected to offer. Moreover, Bright
Harvest did not even disclose that King and Baker may be testifying under Rules 702,
703, or 705, as required by Rule 26(a)(2)(a). Accordingly, they will not be allowed to
offer opinion testimony under Rules 702, 703 or 705.
On the other hand, there is no disclosure requirement for witnesses who will offer
lay opinion testimony. Baker and King may therefore provide lay witness testimony, in
the form of an opinion, but it must be “(a) rationally based on the witness’s perception;

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(b) helpful to clearly understanding the witness’s testimony or to determining a fact in
issue; and (c) not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702.” FED. R. EVID. 701.
Heinz argues that King and Baker’s testimonies regarding damages invade expert
witness testimony. Specifically, Heinz seeks to preclude King and Baker from testifying
about lost profits and overhead absorption, reasoning that such testimony is limited to
expert witnesses. But a lay witness may express an opinion on matters normally reserved
for expert testimony if the witness has particularized knowledge of the facts that form his
opinion and has a “rational connection to those facts.” Miss. Chem. Corp. v. DresserRand Co., 287 F.3d 359, 373 (5th Cir. 2002). Indeed, “[t]he modern trend favors the
admission of [lay] opinion testimony, provided that it is well founded on personal
knowledge and susceptible to specific cross-examination.” Teen-Ed, Inc. v. Kimball Int’l
Inc., 620 F.2d 399, 403 (3rd Cir. 1980). As such, a lay witness may testify about lost
profits and overhead absorption if he has personal and “direct knowledge of the business
accounts underlying the profit calculation.” Miss. Chem. Corp., 287 F.3d at 373.
For instance, in Miss. Chem. Corp., the Fifth Circuit allowed a company director
of risk management and property taxation to testify as a lay witness about lost profits
because he had personal knowledge of the company’s books, since “he had previously
done lost profits calculations” for the company. Id. at 374. Thus, the director “had
sufficient knowledge of [the company’s] underlying business accounts to testify under
Rule 701 about lost profits.” Id. That court also noted that opposing counsel had the

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opportunity to challenge the lay witness’s credibility, methodology, and how he arrived at
figures. Id.
This Court recognizes that the Ninth Circuit has not yet embraced or rejected the
trend of permitting lay testimony regarding damages. However, district courts within the
Ninth Circuit have followed the trend. See, e.g., Google AdWords Litig., No. 5:08-CV3369 EJD, 2012 WL 28068, at *4 (N.D. Cal. Jan. 5, 2012) (“The rules of evidence have
long permitted a person to testify to opinions about their own business based on their
personal knowledge of that business. . . . The Court does not believe [that] Rule 701
[was] intended to exclude that form of personal testimony.”) (internal quotation omitted).
See also Adams v. United States, 2009 WL 1532282 at *1 (D. Idaho 2009) (noting that a
business owner may testify to the projected profits of the business based on the
“particularized knowledge that the witness has by virtue of his or her position in the
business”) (citing Advisory Committee Notes To 2000 Amendments); Montalvo v. Am.
Family Mut. Ins. Co., No. CV-12-02297-PHX-JAT, 2014 WL 2986678, at *5 (D. Ariz.
July 2, 2014) (observing that “lay witnesses may testify to particularized knowledge by
virtue of [their] experience[s] even if the subject matter is specialized or technical[,]
because the testimony is based upon the layperson’s personal knowledge rather than on
specialized knowledge within the scope of Rule 702”) (internal quotations omitted);
Hammann v. 800 Ideas Inc., No. 2:08-CV-0886-LDG-GWF, 2014 WL 1089664, at *2
(D. Nev. Mar. 18, 2014) (ruling that “the law does not prohibit lay witnesses from
testifying based on particularized knowledge gained from their own experience”).

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Here, King is the President of Bright Harvest and Baker is the Chief Financial
Officer. Bright Harvest intends for King and Baker to testify about damages using their
personal knowledge of the company and personal experience preparing various financial
documents. Given King and Baker’s positions and their experiences in developing
financial calculations for the company, they may testify about lost profits to the extent
that they have personal and particularized knowledge of the facts that form their opinions.
They may testify to financial documents they prepared for Bright Harvest, such as
balance sheets or profit and loss summaries. King and Baker may also testify as to how
they reached calculations in those financial documents. However, they may not testify
beyond their personal opinion and personal experience. Furthermore, Heinz will have the
opportunity to cross-examine King and Baker about their credibility, methodology, and
how they arrived at various figures.
For the reasons set forth above, the Court grants Heinz’s motion to exclude King
and Baker from testifying as expert witnesses, but denies the motion to the extent that
King and Baker may testify about damages as lay witnesses. During trial, the Court will
revisit any concerns about the scope of their testimony outside the presence of the jury.
3. Plaintiff’s Fourth Motion in Limine Re: Exclusion of Witnesses.
a. Dennis Reinstein and Rick Moran
Bright Harvest seeks exclusion of testimony from expert witnesses Dennis
Reinstein and Rick Moran. (Dkt. 88). Heinz states that it will not call either Reinstein or
Moran at trial. Accordingly, the Court grants this request.

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b. Kenneth Hooper
Bright Harvest requests that the Court exclude expert testimony from Kenneth
Hooper. (Dkt. 88). Heinz seeks to admit Hooper’s expert testimony as rebuttal to King
and Baker’s testimony regarding damages. However, Heinz did not provide a timely
expert report to Bright Harvest.
“If a party fails to provide information or identify a witness as required by Rule
26(a) or (e), the party is not allowed to use that information or witness to supply evidence
on a motion, at a hearing, or at trial, unless the failure was substantially justified or is
harmless.” FED. R. CIV. P. 37(c)(1). Here, Heinz bears the burden to prove it had
“substantial justification” for the late filing or that the late filing was harmless. See Yeti
by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001).
Heinz contends that the late filing was “within the spirit of the Court’s Case
Management Order,” even though it disclosed Hooper almost a full year after the Court’s
deadline for expert witness disclosures. Def.’s Br. at 19, Dkt. 69-1. Here, the failure to
identify Hooper before February 2015 was not substantially justified because the
disclosure came almost 10 months after Heinz learned about Bright Harvest’s damages
calculations. Such a late filing is harmful because Bright Harvest, so close to trial, has
little or no time to depose Hooper. Indeed, Heinz provided the expert report only one
month prior to trial, when the parties were engaged in final trial preparation.
Additionally, if Hooper is allowed to testify, Bright Harvest may need to find a damages
expert to rebut Hooper’s testimony. The fact that Heinz offered to take Hooper’s

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deposition cannot cure this harm. Accordingly, the Court will grant the motion to exclude
Hooper from testifying as an expert witness.
4. Defendant’s Second Motion in Limine Re: the May 3, 2011 Settlement
Agreement.
a. Breach
Heinz requests that the Court prohibit Bright Harvest from introducing evidence
that Heinz breached the CPA before April 25, 2011. (Dkt. 70). The Settlement
Agreement indeed bars claims of breach before that date. However, evidence of
documents, statements, and actions that occurred prior to April 25, 2011 may be relevant
for another purpose. At this point, the Court is unable to rule on the admissibility of such
evidence. Heinz has not adequately described the evidence it wishes to exclude. Without
such a description, the Court cannot make an informed ruling. As such, the Court will
reserve ruling on the motion until trial. The parties have both stated they will not claim a
breach occurred prior to April 25, 2011. To the extent that Bright Harvest seeks to
introduce evidence of Heinz’s actions and statements for another purpose, it should be
prepared to show why such evidence is otherwise admissible. The Court will resolve any
dispute on this issue outside the presence of the jury.
b. Equitable and/or Promissory Estoppel
Heinz further requests the Court preclude Bright Harvest from introducing
evidence in support of its claims for equitable and/or promissory estoppel. For reasons
explained below, the Court permits Bright Harvest to introduce evidence of statements,
actions, and documents made before April 25, 2011 to support a claim of equitable and/or

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promissory estoppel that arose after April 25, 2011. The Court therefore denies Heinz’s
motion to exclude such evidence.
A promissory estoppel claim requires the following elements: reasonable reliance
on a promise, detriment suffered from that reliance, and substantial loss in reliance that
was or should have been foreseen by the promisor. Gillespie v. Mountain Park Estates,
L.L.C., 56 P.3d 1277, 1279 (Idaho 2002). These elements do not suggest that a release of
pre-existing liability, before a party suffers detriment, necessarily bars a promissory
estoppel claim. On the one hand, a fully developed promissory estoppel claim would
have been barred by the general release of claims made in the Settlement Agreement.
However, the Court cannot rule, as a matter of law, that statements and representations
made prior to the execution of the Settlement Agreement are not relevant to promissory
estoppel claims based upon promises, detriment and/or reliance that occurred after it was
signed by the parties.
Likewise, the equitable estoppel doctrine is “based on the concept that it would be
inequitable to allow a person to induce reliance by taking a certain position and,
thereafter, take an inconsistent position when it becomes advantageous to do so.”
Regjovich v. First W. Invs., Inc., 997 P.2d 615, 619 (Idaho 2000). In the present case,
Bright Harvest’s equitable estoppel claim may require it to prove that Heinz’s position
after the Settlement Agreement was inconsistent with Heinz’s position before the
Settlement Agreement. To do so, the Court may permit Bright Harvest to introduce
evidence of statements, actions, and documents made before the Settlement Agreement.

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The Court therefore denies Heinz’s request to exclude evidence of equitable and/or
promissory estoppel.
However, the Court will not allow Bright Harvest to introduce such evidence to
demonstrate a breach occurred before April 25, 2011, while disguising the evidence as
support for claims of equitable or promissory estoppel.
c. Forecasts
Heinz also requests the Court preclude Bright Harvest from introducing evidence
that contradicts the forecast attached to the Settlement Agreement, as well as the forecasts
provided in July and August of 2011, because Heinz purchased the product amounts set
forth in those forecasts. To support its position, Heinz focuses on the Settlement
Agreement language that provides “Heinz is under no obligation to commit any volume
to Bright Harvest, except as set forth in Exhibit A and any 5 weeks of firm production
orders as set forth in any subsequent electronic rolling weekly demand files submitted to
Bright Harvest.” Gardner Aff., Ex. B, Dkt. 45-5, at 1. However, the Settlement
Agreement also reads, “…this mutual release does not discharge or alter the duties and
obligations of the parties under the Agreement or Related Agreements…” Id. at 2. Thus,
simply because Heinz purchased the product amounts set forth in the forecasts does not
necessarily mean that Heinz complied with its duties and obligations under the CPA.
At trial, Heinz is free to introduce evidence that it purchased the amounts set forth
in the forecasts and that it was under no obligation for future production orders with
Bright Harvest. In the same vein, Bright Harvest may introduce evidence to demonstrate

MEMORANDUM DECISION AND ORDER - 17

that Heinz failed to purchase the forecasted amounts or that the Settlement Agreement
did not modify Heinz’s already existing duties and obligations. Ultimately, it is the
exclusive province of the jury to weigh the evidence.
In light of the Settlement Agreement and the forecasts, Heinz argues it would be
unreasonable for Bright Harvest to rely on evidence that Heinz led Bright Harvest to
believe there might be purchase orders beyond September 2012. This is an argument that
is more properly suited for the summary judgment stage, rather than a motion in limine.
The deadline for dispositive motions has passed. It is now for the jury to determine what
may or may not have been reasonable reliance. Accordingly, this portion of Heinz’s
motion is denied.
d. Implied Covenant of Good Faith and Fair Dealing
Heinz further requests the Court deny Bright Harvest’s claim alleging breach of
the implied covenant of good faith and fair dealing because the covenant may not
override or contradict an express term of an agreement. Heinz again refers to the
Settlement Agreement and attached forecast, as well as the July 2011 forecast, to support
its contention. The Settlement Agreement explicitly states:
Each party’s respective obligations and duties under the [CoPack] Agreements … shall continue on and after the Effective
Date and this mutual release does not discharge or alter the
duties and obligations of the parties under the Agreement or
Related Agreements but releases any breach of such
agreements to the extent arising prior to the Effective Date.
Gardner Aff., Ex. B, Dkt. 45-5, at 2.

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Therefore, any covenant of good faith and fair dealing that was in effect prior to
the May 3 Settlement Letter was still in effect after May 3. Accordingly, Bright Harvest
is entitled to introduce evidence that contradicts the forecasts and may likewise argue that
Heinz breached the covenant of good faith and fair dealing. Similarly, Heinz may
introduce evidence that demonstrates it did not breach the implied covenant of good faith
and fair dealing. The Court will not, on a motion in limine, preclude a party from
introducing all evidence of their claim. Such an action would be tantamount to dismissal,
which is inappropriate at this time.
ORDER
IT IS ORDERED:
1.

Plaintiff’s Third Motion in Limine (Dkt. 87) is GRANTED.

2.

Defendant’s First Motion in Limine (Dkt. 69) is GRANTED in part and
DENIED in part.

3.

Plaintiff’s Fourth Motion in Limine (Dkt. 88) is GRANTED.

4.

Defendant’s Second Motion in Limine (Dkt. 70) is DENIED in part, and
RESERVED in part.
DATED: March 9, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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