McDougall v. CRC Industries, Inc. et al

Filing 339

MEMORANDUM OPINION AND ORDER denying 312 Motion for Judgment as a Matter of Law; denying 312 Motion for New Trial; granting in part 313 Motion to Alter/Amend/Correct Judgment. (Written Opinion) Signed by Judge John R. Tunheim on 11/26/2024. (HMA)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
DAVID A. MCDOUGALL, individually and
as Trustee for the Next-of-Kin of Decedent
Cynthia A. McDougall,
Plaintiff,
v.

Civil No. 20-1499 (JRT/LIB)

MEMORANDUM OPINION AND ORDER
ON POST-TRIAL MOTIONS

CRC INDUSTRIES, INC., and John Doe
Company Defendants #1–10,
Defendants.
Michael D. Reif, Ryan W. Marth, Tara D. Sutton, Philip L. Sieff, Rashanda C.
Bruce, and Julie Reynolds, ROBINS KAPLAN LLP, 800 LaSalle Avenue, Suite
2800, Minneapolis, MN 55402, for Plaintiff.
Beth A. Jenson Prouty and Jeffrey M. Markowitz, ARTHUR, CHAPMAN,
KETTERING, SMETAK & PIKALA, P.A., 81 South Ninth Street, Suite 500,
Minneapolis, MN 55402; David J. Wallace-Jackson, Robert J. Gilbertson, and
Virginia R. McCalmont, FORSGREN FISHER MCCALMONT DEMAREA
TYSVER LLP, 225 South Sixth Street, Suite 1500, Minneapolis, MN 55402, for
Defendant CRC Industries, Inc.
This case arose from the death of Cynthia McDougall, who was killed in Baudette,
Minnesota in a motor vehicle accident with Kyle Neumiller. Ms. McDougall’s surviving
spouse and next-of-kin, David McDougall, brought this action against Defendant CRC
Industries, Inc. (“CRC”), alleging that Neumiller lost control of his vehicle because he was
intoxicated from huffing CRC’s computer dust remover (the “CRC Duster”). Among other
things, McDougall claimed CRC was liable for Ms. McDougall’s death under negligence,

strict liability for design defect, and strict liability for failure to warn theories. These
claims proceeded to a jury trial, after which a jury awarded $7.75 million in damages to
McDougall after finding that CRC was liable for a design defect with CRC Duster and that
CRC Duster’s design was a direct cause of McDougall’s damages.
CRC now moves for judgment as a matter of law or, in the alternative, for a new
trial. Even if the liability judgment stands, CRC requests that the judgment be amended
to be proportionate to the percentage of fault that the jury apportioned to CRC. In
addition, McDougall moves to amend the judgment to add prejudgment and postjudgment interest. Because the Court finds that sufficient evidence supports the jury’s
verdict and that a new trial is not warranted, the Court will deny CRC’s motions for
judgment as a matter of law and for a new trial. Because the Court finds no manifest
errors of law, the Court will deny CRC’s request to amend the judgment. Finally, the Court
will grant McDougall’s motion to amend the judgment to include prejudgment and postjudgment interest in part as follows: the Court will order CRC to pay $2,525,523.29 in preverdict prejudgment interest and $135,130.169 in post-verdict prejudgment interest and
to pay post-judgment interest at a rate of 5.12% starting from the date of the June 11,
2024, judgment for the jury award and from the date of this Order for the jury award plus
the prejudgment interest and any costs, until the judgment is satisfied.
BACKGROUND
The Court has thoroughly addressed the facts and procedural history of this
litigation in prior rulings, which are incorporated by reference and summarized below.
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See McDougall v. CRC Indus., Inc., No. 20-1499, 2023 WL 5515827, at *1–3 (D. Minn. Aug.
25, 2023). On July 22, 2019, Cynthia McDougall was killed in a car accident with another
vehicle in Baudette, Minnesota. Id. at *1. The driver of the other car, Kyle Neumiller, was
allegedly driving while intoxicated due to ingesting gas from a cannister of aerosol dusting
spray manufactured by CRC, called CRC Duster. Id. Neumiller had allegedly lost control
of his bodily functions and vehicle because of intoxication from CRC Duster. Id.
CRC Duster is a compressed gas dusting spray used to remove dust and debris from
other products without damaging surface finishes or sensitive components. Id. at *2. CRC
Duster contains a pressurized volatile, fluorinated hydrocarbon gas called 1,1difluoroethane (“DFE”), which is a central nervous system depressant that, when inhaled,
can cause psychoactive intoxicating side effects like euphoria, hallucinations, and
delusions. Id.
After Ms. McDougall’s death, her husband, David McDougall, brought this action
in his individual capacity and as court-appointed wrongful death Trustee against CRC and
John Doe Companies 1–10, alleging claims for products liability, negligence, breach of
warranty, deceptive and unlawful trade practices, and public nuisance. Id. at *3. The
claims for negligence, strict liability for design defect, and strict liability for failure to warn
proceeded to a seven-day jury trial in April 2024. Id. at *4–9.
At trial, McDougall presented evidence that CRC knew well before Ms. McDougall’s
death that DFE was known to cause immediate and severe impairment upon inhalation,
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that DFE’s drug-like effects are rapid and intense, and that DFE’s drug-like effects could
cause automobile accidents. (See, e.g., Trial Tr. 202:1–17, 265:9–266:7, 279:1–7, 283:10–
24, 602:11–603:5.) McDougall also presented evidence—including expert testimony and
datasets from the U.S. Consumer Product Safety Commission (“CPSC”), the Alliance for
Consumer Education (“ACE”), and the National Survey of Drug Use and Health—that
people were intentionally inhaling CRC Duster and similar aerosol duster products to get
high, and that CRC knew this. (Trial Tr. 289:4–18, 290:3–17, 606:6–14, 617:6–21, 889:13–
890:16, 891:19–893:3.) In fact, McDougall elicited testimony that CRC contributed to
ACE, whose purpose is to raise awareness and education about the problems of inhalant
abuse and which maintained a blog that collected reports of inhalant abuse that made
the news, including dust removers. (Trial Tr. 900:23–901:16, 903:11–904:9.) In addition,
McDougall presented evidence that CRC had temporarily added a bitterant agent to CRC
Duster in 2008 to deter people from misusing the product to get high, though CRC
eventually removed the bitterant after finding no evidence that it worked. (Trial Tr.
612:8–614:6, 712:8–18.) McDougall also provided evidence that CRC did not take certain
steps to address CRC Duster’s potential dangers, like engaging in risk assessment when
developing CRC Duster or reporting cases of duster abuse or death to the CPSC. (Trial Tr.
663:4–12, 816:21–820:6, 1035:24–1036:3.)
Further, McDougall presented evidence that, after the crash on July 22, 2019, a
can of CRC Duster was found in Neumiller’s car and Neumiller had DFE in his blood. (Trial
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Tr. 319:20–321:2, 325:1–15, 325:23–328:13, 329:21–332:7, 1219:6–12.)

Neumiller

testified that he had used aerosol duster to get high before July 22, 2019, and that he
knew inhaling aerosol duster could cause loss of consciousness. (Trial Tr. 1325:4–15,
1337:5–24.) In addition, Neumiller testified that, on July 22, 2019, he knew that he if he
inhaled duster and drove and lost consciousness, that there was a chance that he could
kill someone else. (Trial Tr. 1325:19–1326:4.)
McDougall’s damages expert, Dr. Felix Friedt, testified that the present value of
McDougall’s future losses was $1,142,000 and that McDougall’s past economic losses
were $391,000. (Trial Tr. 853:17–20, 872:9–13.)
During the trial, CRC moved for judgment as a matter of law pursuant to Federal
Rule of Civil Procedure 50(a) based on insufficiency of the evidence. (Def.’s Mem. Supp.
JMOL at 3–28, Apr. 22, 2024, Docket No. 242.) Further, CRC argued it should not be
required to cover Neumiller’s fault for Ms. McDougall’s death. (Id. at 29–33.) The Court
denied CRC’s motion from the bench. (Trial Tr. 1622:8–17.)
On April 25, 2024, the jury returned a verdict finding that CRC was liable for a
design defect with CRC Duster and that the design was a direct cause of Cynthia
McDougall’s death, though the jury found no failure to warn. (1st Jury Verdict at 1–2, Apr.
30, 2024, Docket No. 272.) The jury also determined that Kyle Neumiller misused CRC
Duster; that he “kn[ew] that huffing CRC Duster while driving on July 22, 2019, was
substantially certain to result in the consequences/the death of another person;” that he
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was at fault for Ms. McDougall’s death; and that Neumiller’s fault was a direct cause of
Ms. McDougall’s death. (Id. at 2–3.) The jury apportioned 22.5% of fault for Ms.
McDougall’s death to CRC and 77.5% of fault to Neumiller and awarded McDougall
$7,750,000 for his losses. (Id. at 3–4.)
Because the jury found CRC liable for a design defect, they were asked to
determine whether to award punitive damages. (Trial Tr. 1622:22–1623:7; 1838:20–25.)
After hours of deliberation, the jury chose not to award punitive damages, but they did
request that the Court read a note from the jury in court before adjourning:

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(2nd Jury Verdict Ex. 1, Apr. 30, 2024, Docket No. 273.)
Because the jury found that Neumiller was an intentional tortfeasor, the Court
entered judgment in favor of McDougall against CRC for the full judgment amount. (J. at
1, June 11, 2024, Docket No. 309.) Three days later, the Court amended the judgment to
include the specific monetary amount ($7,750,000) entered against CRC to McDougall.
(Am. J. at 1, June 14, 2024, Docket No. 310.)

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CRC thereafter filed the present post-trial motions for judgment as a matter of law
(“JMOL”) and for a new trial. (Mot. for JMOL, Mot. New Trial, July 8, 2024, Docket No.
312.) In general, CRC argues that the jury’s verdict was against the weight of the evidence
and that the Court made legal errors that substantially influenced the trial. (Def.’s Mem.,
Aug. 2, 2024, Docket No. 333.) McDougall also filed a motion to amend the judgment to
add prejudgment and post-judgment interest. (Mot. Alter/Amend/Correct J., July 9, 2024,
Docket No. 313.)
DISCUSSION
I.

DEFENDANT’S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW
A.

Standard of Review

Under Federal Rule of Civil Procedure 50, the Court may resolve an issue as a
matter of law if “a party has been fully heard on an issue during a jury trial” and “a
reasonable jury would not have a legally sufficient evidentiary basis to find for the party
on that issue.” Fed. R. Civ. P. 50(a)(1). “A motion for judgment as a matter of law should
be granted when all the evidence points one way and is susceptible of no reasonable
inferences sustaining the position of the nonmoving party.” Hunt ex rel. Hunt v. Lincoln
Cnty. Mem’l Hosp., 317 F.3d 891, 893 (8th Cir. 2003) (quotation omitted).
If the Court denies a motion for judgment as a matter of law made during trial
pursuant to Rule 50(a), the moving party may file a renewed motion regarding legal
questions following the verdict and entry of judgment pursuant to Rule 50(b). Fed. R. Civ.
P. 50(b). In deciding a renewed motion, the Court shall
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(1) resolve direct factual conflicts in favor of the nonmovant,
(2) assume as true all facts supporting the nonmovant which
the evidence tended to prove, (3) give the nonmovant the
benefit of all reasonable inferences, and (4) deny the motion
if the evidence so viewed would allow reasonable jurors to
differ as to the conclusions that could be drawn.
Stults v. Am. Pop Corn Co., 815 F.3d 409, 418 (8th Cir. 2016) (quoting Jones v. Edwards,
770 F.2d 739, 740 (8th Cir. 1985)). Because a Rule 50(b) motion constitutes a renewal of
a Rule 50(a) motion made at the close of the evidence, a Rule 50(b) motion is limited to
the issues raised in the Rule 50(a) motion. Hinz v. Neuroscience, Inc., 538 F.3d 979, 983–
84 (8th Cir. 2008).
B.

Analysis

CRC argues that no reasonable juror would have a legally sufficient basis to find for
McDougall on the design defect claim. 1 Specifically, CRC claims there was insufficient
evidence to support a reasonable jury’s finding (1) that CRC owed Ms. McDougall a duty
of care and (2) that CRC Duster’s design was both defective and the proximate cause of
Ms. McDougall’s death. The Court will analyze each argument in turn.
1.

Duty of Care

CRC argues that no reasonable jury could find that CRC had a duty to protect Ms.
McDougall from the harm that Neumiller caused.

1 “Out of an abundance of caution,” CRC also maintains its challenge to the Court’s ruling

during trial that permitted McDougall to add a punitive-damages claim. (Def.’s Mem. at 47.)
However, the jury verdict ultimately did not include any punitive damages, and that verdict is
now final. Therefore, that challenge is now moot.

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Under Minnesota law, a person generally does not owe a duty of care to another
if the harm is caused by a third party’s conduct. Doe 169 v. Brandon, 845 N.W.2d 174,
177–78 (Minn. 2014). However, an exception exists when the defendant’s own conduct
creates a foreseeable risk of injury to a foreseeable plaintiff. Domagala v. Rolland, 805
N.W.2d 14, 23 (Minn. 2011). This exception only applies if the defendant’s conduct was
misfeasance, which is “active misconduct working positive injury to others,” not
nonfeasance, which is “passive inaction or a failure to take steps to protect [others] from
harm.” Doe 169, 845 N.W.2d at 178 (quotation omitted); Fenrich v. The Blake Sch., 920
N.W. 2d 195, 203 (Minn. 2018).
In its renewed motion for JMOL, CRC challenges misfeasance and foreseeability.
a.

Misfeasance

First, CRC argues that McDougall provided insufficient evidence to support a
finding of misfeasance. Specifically, CRC claims that McDougall was required to submit
misfeasance to the jury and that in any event he failed to prove misfeasance at trial. In
CRC’s view, McDougall’s theory of liability is through nonfeasance, which is insufficient to
establish that CRC owed Ms. McDougall a duty of care.
However, McDougall need not have submitted misfeasance as a specific element
to the jury. “Whether an alleged tortfeasor’s own conduct is misfeasance or nonfeasance
is a question of law.” Fenrich, 920 N.W.2d at 204 n.4 (citation and internal quotations
omitted).

The Court determined that genuine factual issues precluded summary

judgment regarding CRC’s own conduct. McDougall v. CRC Indus., Inc., 2023 WL 5515827,
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at *8. And at trial, the Court rejected CRC’s proposal to instruct the jury on misfeasance
because the Court was concerned about confusing the jury. (Trial Tr. 1681:5–9.) Rather
than confuse the jury with instructions on misfeasance versus nonfeasance, the relevant
question for the jury was whether CRC’s manufacturing and selling of CRC Duster created
a foreseeable risk of injury to a foreseeable plaintiff. In a factually similar case involving
a car accident brought about by a third-party who inhaled aerosol duster, the Court of
Appeals found that the district court erred by only considering whether the manufacturer
of the duster engaged in misfeasance by taking an active role in the third-party’s conduct
on the day of the accident. Diehl v. 3M Co., No. A19-0354, 2019 WL 4412976, at *3 (Minn.
Ct. App. Sept. 16, 2019). 2 Rather, the inquiry should have been whether the defendant’s
“own conduct of manufacturing and selling the product created a foreseeable risk of
injury to [the plaintiff].” Id. In other words, a defendant’s act of manufacturing and selling
a product that created a foreseeable risk of injury to a foreseeable plaintiff may constitute
misfeasance. Indeed,
[c]oncluding that a manufacturer does not have a duty
because the manufacturer was not involved with the product
user’s misuse of the product fails to recognize that a
manufacturer has a duty to avoid any unreasonable risk of
harm to anyone who is likely to be exposed to danger when

2 “As an unpublished opinion of the Minnesota Court of Appeals, [Diehl] lacks precedential

value, but its reasoning is helpful.” Pitman Farms v. Kuehl Poultry, LLC, 48 F.4th 866, 881 (8th Cir.
2022). Indeed, the Court may rely on Diehl “as persuasive authority as to how the Minnesota
Supreme Court would address” the misfeasance issue, especially because of the similar
circumstances under which Diehl arose. Cent. Specialties, Inc. v. Large, 18 F.4th 989, 999 n.2 (8th
Cir. 2021).

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the product is used in an unintended yet reasonably
foreseeable use.
Id. Without clearer instruction from the Minnesota Supreme Court, the Court finds that
the appropriate inquiry for the jury—as the Court instructed at trial—was whether CRC’s
own conduct of manufacturing and selling CRC Duster created a foreseeable risk of injury
to Ms. McDougall. (See Jury Verdict at 1; Final Jury Instr. at 18–20, Apr. 30, 2024, Docket
No. 274.) This conclusion is supported by bedrock principles of Minnesota products
liability law, which hold that a manufacturer may have a duty to protect the user of a
product, as well as those who might be injured by the product’s use or misuse, from
foreseeable danger. Whiteford by Whiteford v. Yamaha Motor Corp., U.S.A., 582 N.W.2d
916, 919 (Minn. 1998).
Having submitted appropriate instructions regarding misfeasance to the jury, the
Court finds that McDougall presented sufficient evidence to support a reasonable jury’s
finding that CRC owed a duty to Ms. McDougall because its own conduct of manufacturing
and selling CRC Duster created a foreseeable risk of injury to Ms. McDougall. At trial,
McDougall presented evidence that CRC knew people were using CRC Duster and other
aerosol duster products to get high while driving and yet failed to engage in risk
assessment for CRC Duster. Further, McDougall presented evidence that CRC was aware
of ACE’s blog with a collection of reports of inhalant abuse, including driving-while-huffing
dust remover cases. The evidence that was presented supports a reasonable conclusion
that CRC’s manufacturing and selling of CRC Duster—despite the known risks and abuse—
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constituted misfeasance. Thus, the jury’s verdict is not so unsupported by evidence as to
justify JMOL on this ground.
b.

Foreseeability

Second, CRC challenges foreseeability, arguing that Neumiller’s actions were too
remote to be a reasonably foreseeable result. Specifically, CRC claims that McDougall did
not prove that CRC’s conduct created a foreseeable risk of injury to a foreseeable plaintiff
because Neumiller’s grossly negligent misuse of CRC Duster was too remote from CRC’s
design, manufacturing, and sale of the product to make Neumiller’s conduct a reasonably
foreseeable result. CRC analogizes this case to the wholesale sale of alcohol to an
intermediary or the manufacturing of cold medicine that was made into
methamphetamine by criminal intermediary “cooks.” See Johnson v. Kotval, 369 N.W.2d
584, 585–86 (Minn. Ct. App. 1985); Ashley Cnty. v. Pfizer, Inc., 552 F.3d 659, 670 (8th Cir.
2009).
It is well settled that a manufacturer has a duty to develop its “plan or design so as
to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the
danger when the product is used in the manner for which the product was intended, as
well as an unintended yet reasonably foreseeable use.” Bilotta v. Kelley Co., Inc., 346
N.W.2d 616, 621 (Minn. 1984) (quoting Holm v. Sponco Mfg., Inc., 324 N.W.2d 207, 212
(Minn. 1982)). “In determining whether a danger is foreseeable, courts look at whether
the specific danger was objectively reasonable to expect, not simply whether it was within
the realm of any conceivable possibility.” Whiteford, 582 N.W.2d at 918.
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At summary judgment, the Court concluded that, based on the evidence, a
factfinder could find that it was objectively reasonable for CRC to anticipate a danger to
third-party bystanders from individuals who huffed while driving. McDougall, 2023 WL
5515827, at *5. At trial, McDougall presented significant evidence to support his
argument that Ms. McDougall’s death was a reasonably foreseeable result. For example,
McDougall presented evidence that CRC knew about the epidemic of DFE abuse and that
people were misusing CRC Duster to get high, including while driving. The jury was asked
to weigh this evidence—including both CRC’s answer to an interrogatory that a person’s
misuse of CRC Duster to get high creates risks and testimony from CRC’s witnesses
regarding CRC’s knowledge of the huffing epidemic—to determine whether Ms.
McDougall’s death was a reasonably foreseeable result of CRC Duster’s design. Whether
or not CRC knew who Neumiller was before this lawsuit, as CRC argues, is of no matter
with respect to foreseeability because the appropriate inquiry is whether it was
objectively reasonable for CRC to expect the specific danger that caused Ms. McDougall’s
death. Domagala, 805 N.W.2d at 27. The jury ultimately answered that question in the
affirmative. Sufficient evidence supports the jury’s conclusion, and the Court will not
grant JMOL on this ground.
2.

Design Defect

CRC next argues that JMOL is warranted because no reasonable jury could have
found a design defect in CRC Duster. To prevail on his design defect claim, McDougall
needed to establish that CRC owed a duty to Ms. McDougall, that CRC Duster was in a
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defective condition unreasonably dangerous to users of or those exposed to the product
because of its design, and that the design was a direct cause of McDougall’s damages.
Bilotta, 346 N.W.2d at 622–23 & n.3; Domagala, 805 N.W.2d at 22. 3 In CRC’s view,
McDougall (1) did not prove that Neumiller’s decision to huff CRC Duster while driving
was a foreseeable misuse, (2) did not offer the required standard-of-care balancing-test
expert testimony, (3) did not present alternative-design evidence, and (4) did not prove
proximate causation. The Court will analyze each argument in turn.
a.

Foreseeable Misuse

First, CRC argues that McDougall did not prove that huffing while driving is a
foreseeable misuse, such that CRC would owe Ms. McDougall a duty of care. However,
the Court finds that McDougall presented sufficient evidence for a reasonable jury to
conclude that Neumiller’s decision to huff CRC Duster while driving was a foreseeable
misuse. A manufacturer is obligated to address defects related to unintended, but
reasonably foreseeable, uses. Bilotta, 346 N.W.2d at 621. At trial, McDougall presented
evidence that CRC was aware that people were misusing CRC Duster and other aerosol
duster products to get high, including while driving. This was sufficient to support the
jury’s verdict.

3 In cases with overlapping negligence and strict liability theories, the Minnesota Supreme

Court has acknowledged that a trial court could merge them into a single theory in design defect
cases to “avoid the confusion and inconsistent verdicts spawned by submission of multiple
overlapping theories.” Bilotta, 346 N.W.2d at 623. Thus, the Court’s jury instructions merged
the elements for negligence and strict liability for design defect. (See Jury Instr. at 18–20.)

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b.

Expert Testimony

CRC next argues that McDougall did not offer required standard-of-care balancingtest expert testimony to evaluate whether CRC Duster’s design was defective.
The test for a defective-design claim is a “reasonable-care balancing test,” which
involves balancing “the likelihood of harm, and the gravity of harm if it happens, against
the burden of the precaution which would be effective to avoid the harm.” Id. (internal
quotations omitted). “When the standard of care that a manufacturer must exercise in
weighing the costs and benefits of an alleged design defect is not within the general
knowledge and experience of lay people, expert testimony is necessary.” Markel v.
Douglas Techs. Grp., Inc., No. 17-1790, 2019 WL 1440423, at *3 (D. Minn. Apr. 1, 2019)
(citation and internal quotations omitted). However, “expert testimony is not required in
every product liability case involving a complex product.” Holverson v. ThyssenKrupp
Elevator Corp., No. 12-2765, 2014 WL 3573630, at *4 (D. Minn. July 18, 2014).
In this case, weighing the costs and benefits of CRC Duster’s design is not so outside
the general knowledge and experience of lay people as to require expert testimony.
McDougall presented evidence that CRC knew about the DFE-abuse epidemic and
presented expert testimony on the danger of DFE-based aerosol dusters, and the jury was
asked to weigh the dangers of misusing DFE with its utility in a product to remove dust
from electronics. (See Jury Instr. at 19–20.) Lay people are suited to weigh such simple
costs and benefits, as these circumstances are unlike those where the costs and benefits
of an alleged design defect were more technical and thus required expert testimony. See,
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e.g., Mozes v. Medtronic, Inc., 14 F. Supp. 2d 1124, 1128 (D. Minn. 1998) (pacemakers);
Kapps v. Biosense Webster, Inc., 813 F. Supp. 2d 1128, 1159–61 (D. Minn. 2011)
(catheters); Holverson, 2014 WL 3573630, at *4 (electric and mechanical systems that
allow elevators to function).
Furthermore, though CRC rightly notes that McDougall ultimately decided not to
call one particular expert witness in this case, the jury was no stranger to helpful expert
witnesses over the course of this seven-day trial. To the extent the jury needed technical
expert testimony to understand the toxic effects of CRC Duster, McDougall provided
testimony from multiple experts, including a toxicologist, an addiction-medicine doctor,
and an academic who studies the epidemiology of inhalant abuse. McDougall also
presented expert testimony that CRC chose to design CRC Duster with 100% DFE even
when other products that could be used as inhalants were designed in a way that made
inhalant abuse more difficult. (Trial Tr. 269:18–271:11.) McDougall need not have
supplemented that already lengthy expert testimony with yet another witness to walk
through the standard-of-care balancing test the jury was already well-equipped to
conduct on its own.
c.

Alternative-Design Evidence

Next, CRC argues that McDougall did not present alternative-design evidence or
establish that CRC Duster is so unreasonably dangerous that it should be taken off the
market, as CRC claims McDougall must have done at trial.

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However, at summary judgment, the Court previously rejected CRC’s assertion that
McDougall must present alternative-design evidence. See McDougall, 2023 WL 5515827,
at *8. As before, the Court is not persuaded that alternative-design evidence must be
produced in all cases. The Minnesota Supreme Court has held that “[a]lthough normally
evidence of a safer alternative design will be presented initially by the plaintiff, it is not
necessarily required in all cases.” Kallio v. Ford Motor Co., 407 N.W.2d 92, 96–97 (Minn.
1987). Further, the Eighth Circuit has noted that the Minnesota Supreme Court “did not
go so far as to require proof of an alternative feasible design in all defective-products
cases.” Wagner v. Hesston Corp., 450 F.3d 756, 760 (8th Cir. 2006). The Court sees no
reason to depart from its earlier conclusion that proof of an alternative design is not
required in all defective products cases; therefore, JMOL is not warranted on this ground.
Moreover, Kallio did not explicitly separate defective design cases into the
categories argued by CRC—those that provide proof of an alternative design and those
that show the product is so unreasonably dangerous that it should be taken off the
market. Only in a footnote did the Kallio court explain that “[c]onceivably, rare cases may
exist where the product may be judged unreasonably dangerous because it should be
removed from the market rather than be redesigned.” 407 N.W.2d at 97 n.8. The court
in Kapps interpreted the footnote in Kallio as establishing a bicategorical approach to
defective design cases. 813 F. Supp. 2d at 1161. This Court, however, understands the
footnote to merely represent an example of cases where no alternative design evidence
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is required. If the Minnesota Supreme Court had intended to require plaintiffs to present
alternative design evidence or else prove that the product is so unreasonably dangerous
that it should be taken off the market, it could have said so in its opinion. But it did not.
Thus, not only was McDougall not required to present alternative-design evidence, but
he also was not required to prove that CRC Duster is so unreasonably dangerous that it
should be taken off the market. The Court therefore sees no reason to grant JMOL on
this ground.
d.

Proximate Causation

Finally, CRC argues that McDougall did not prove proximate causation.
In Minnesota, proximate cause exists if “the act [is] one which the party ought, in
the exercise of ordinary care, to have anticipated was likely to result in injury to others”
and the defendant’s “conduct was a substantial factor in bringing about the injury.”
Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).
The Court previously determined that proximate causation turned on
foreseeability. McDougall, 2023 WL 5515827, at *6–7. CRC claims that McDougall did
not satisfy the foreseeability or substantial-fact elements for proximate causation.
Namely, CRC argues that no reasonable jury could have found that Neumiller was not a
superseding cause that broke any causal chain. However, there was sufficient evidence
to support a reasonable jury’s finding that the events leading up to Ms. McDougall’s death
were a reasonably foreseeable risk of CRC’s manufacture and sale of CRC Duster, and that
CRC’s actions were a substantial factor in causing Ms. McDougall’s death. Specifically, at
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trial McDougall presented evidence of CRC’s knowledge of the huffing misuse, CRC’s use
and subsequent removal of the bitterant, CRC’s de minimis steps to deter misuse, warning
label changes on CRC Duster, and expert reports. It was for the jury to determine
foreseeability, and despite CRC’s well-taken arguments, the evidence presented at trial
“would allow reasonable jurors to differ as to the conclusions that could be drawn.”
Stults, 815 F.3d at 418. Sufficient evidence thus supported the jury’s conclusion that CRC
Duster’s design proximately caused Ms. McDougall’s death.
*

*

*

In sum, the Court finds no ground warranting JMOL, as sufficient evidence supports
the jury’s verdict in favor of McDougall on the design defect claim. CRC has therefore
failed to show that it is entitled to judgment as a matter of law, and the Court will deny
CRC’s Rule 50(b) motion.
II.

DEFENDANT’S MOTION FOR A NEW TRIAL
A.

Standard of Review

Under Rule 59(a) of the Federal Rules of Civil Procedure, the Court may grant a
motion for a new trial “on all or some of the issues.” Fed. R. Civ. P. 59(a)(1). “A new trial
is appropriate when the first trial, through a verdict against the weight of the evidence . . .
or legal errors at trial, resulted in a miscarriage of justice.” Gray v. Bicknell, 86 F.3d 1472,
1480 (8th Cir. 1996). “The authority to grant a new trial is within the discretion of the
district court.” Id. Only if the jury’s verdict is so against the great weight of the evidence
that it constitutes a miscarriage of justice should a motion for a new trial be granted.
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Ogden v. Wax Works, Inc., 214 F.3d 999, 1010 (8th Cir. 2000). If a party contests the
Court’s evidentiary rulings, a new trial is warranted only if erroneous rulings “had a
substantial influence on the jury’s verdict.” Littleton v. McNeely, 562 F.3d 880, 888 (8th
Cir. 2009) (quoting Harris v. Chand, 506 F.3d 1135, 1139 (8th Cir. 2007)).
B.

Analysis

CRC argues that a new trial is warranted because the jury’s verdict is so contrary
to the evidence that it constitutes a miscarriage of justice and because of alleged errors
by the Court. The Court will analyze each argument in turn.
1.

Contrary to the Weight of the Evidence

CRC first claims that the jury verdict is so unsupported by the weight of the
evidence as to imply that the jury failed to consider all the evidence or acted under some
mistake. However, as discussed above, the Court finds that the jury’s verdict was not
against the weight of the evidence, and the Court will not grant a new trial on this ground.
2.

Alternative-Design Instruction

CRC repeatedly requested that the jury be instructed that McDougall was required
to either provide proof of an alternative feasible design or “prove that the product should
be entirely removed from the market instead of redesigned,” which the Court rejected.
(Trial Tr. 1084:22–1085:23; 1642:7–25.) CRC argues that the Court’s alternative-design
instruction thus led the jury to believe that the absence of an alternative design was
irrelevant and did not inform the jury that only in the rare case could the product’s design
be unreasonably dangerous.
-21-

District courts have “broad discretion” in formulating jury instructions, Zutz v. Case
Corp., 422 F.3d 764, 773 (8th Cir. 2005), which must, “taken as a whole and viewed in light
of the evidence and applicable law, fairly and adequately submit[] the issues in the case
to the jury,” Horstmyer v. Black & Decker, (U.S.), Inc., 151 F.3d 765, 771 (8th Cir. 1998)
(citation omitted). A new trial for instructional errors is only warranted where the errors
misled the jury or had a probable impact on the verdict. Nicholson v. Biomet, Inc., 46
F.4th 757, 762 (8th Cir. 2022).
The Court’s instruction regarding alternative design adequately informed the jury
of the law. The instructions stated that McDougall was not required to provide proof of
an alternative feasible design. (Jury Instr. at 20.) This instruction comports with the
Court’s understanding, explained above, that Minnesota law does not require proof of
alternative-design evidence in all products liability cases. See McDougall, 2023 WL
5515827, at *8. Furthermore, there was no need to instruct the jury on CRC’s proposed
alternative requirement that, in the absence of alternative-design evidence, McDougall
needed to prove that CRC Duster was so unreasonably dangerous that it should be taken
off the market. As explained above, Kallio does not explicitly require that, in lieu of
alternative-design evidence, a plaintiff must then demonstrate that a product is so
unreasonably dangerous that it should be removed from the market rather than be
redesigned. The Court’s instruction on this matter was therefore appropriate.

-22-

3.

Misfeasance on Verdict Form and in Jury Instructions

CRC repeatedly requested that the Court submit misfeasance to the jury and
instruct the jury on misfeasance, which the Court rejected. (See, e.g., Trial Tr. 1071:18–
1072:13, 1107:23–1108:1, 1631:17–25, 1680:17–1681:9.) CRC now claims that a new trial
is warranted because the Court failed to submit the issue of misfeasance to the jury and
to instruct the jury on misfeasance versus nonfeasance.
“The district court has discretion in the style and wording of jury instructions so
long as the charge as a whole fairly and adequately states the law.” Horstmyer, 151 F.3d
at 771 (quoting Beckman v. Mayo Found., 804 F.2d 435, 438 (8th Cir. 1986)). The Court
rejected CRC’s requests to instruct the jury on misfeasance because of concerns that
misfeasance would confuse the jury. (See Trial Tr. 1681:5–9.) Furthermore, as explained
above, a defendant’s own conduct of manufacturing and selling a product that created a
foreseeable risk of injury to a plaintiff may constitute misfeasance. See Diehl, 2019 WL
4412976, at *3. But the jury was instructed that a manufacturer owes a duty of care when
its own conduct creates a foreseeable risk of injury to a foreseeable plaintiff, and the jury
was asked to determine whether CRC Duster’s design created a foreseeable risk of injury
to Ms. McDougall.

Thus, the lack of an explicit instruction on misfeasance was

appropriate in adequately instructing the jury on the law.
The Court’s rejection of CRC’s proposed predicate question on misfeasance in the
special verdict form was also appropriate. District courts have “broad discretion in
deciding whether to use a special verdict form” under Federal Rule of Civil Procedure 49,
-23-

though that discretion “does not extend to submitting instructions that mislead, confuse,
or improperly state the law.” Horstmyer, 151 F.3d at 772. Here, the inclusion of a
misfeasance question in the special verdict form would have been unnecessary,
duplicative, and confusing because the jury was already instructed that “[A] manufacturer
owes a duty when its own conduct creates a foreseeable risk of injury to a foreseeable
plaintiff.” (Jury Instr. at 18.) This language tracks that used in the Diehl opinion, which
concluded that the inquiry is whether the defendant’s “own conduct of manufacturing
and selling the product created a foreseeable risk of injury to [the plaintiff].” Diehl, 2019
WL 4412976, at *3. Thus, the jury was not precluded from considering the issue of
misfeasance in determining whether CRC owed Ms. McDougall a duty. Accordingly, the
omission of misfeasance language from the instructions and special verdict form
appropriately avoided confusing the jury and adequately informed the jury on the law on
foreseeability.
4.

Court’s Answer to Jury’s Fault Question

Finally, CRC argues that a new trial is warranted because the Court’s answer to
Juror Question 2 impermissibly road-mapped how the jury could ensure that McDougall
would receive all the damages.
“A district court has broad discretion to respond to a jury request for supplemental
instructions,” so long as the court “insure[s] that any supplemental instructions given are
accurate, clear, neutral and non-prejudicial.” United States v. Felici, 54 F.3d 504, 507 (8th
Cir. 1995). In addition to being accurate, clear, neutral, and non-prejudicial, answers to
-24-

jury questions must be “within the specific limits of the question presented.” Am. Mod.
Home Ins. Co. v. Thomas, 993 F.3d 1068, 1074 (8th Cir. 2021) (citation and internal
quotation marks omitted).
Juror Question 2 asked, “Will the percentages we provide in question 4 affect the
damages awarded? (If we decide to award damages)[.]” (Answer of the Court to Juror
Question 2 at 1, Apr. 30, 2024, Docket No. 277.) The Court held a conference with the
parties to determine how to answer the jury’s question, which concerned the effect of
the jury’s apportionment of fault. (Trial Tr. 1824–1831.) Over objection from CRC’s
counsel, the Court determined that the following answer was appropriate: “If you answer
‘Yes’ to both questions under Count 1 and/or both questions under Count 2, and answer
“Yes” to Questions 3A and 3B, then any damages awarded would not be divided and
Plaintiff would receive all the damages.” (Answer of the Court to Juror Question 2 at 1.)
CRC contends that the Court’s answer improperly permitted the jury to “concern
themselves about whether their answers will be favorable to one party or the other or
what the final result of the law suit may be.” Chicago, R.I. & P. R. Co. v. Speth, 404 F.2d
291, 295 (8th Cir. 1968).

However, the Court’s answer to Juror Question 2 was

appropriate. The Court’s answer was clear and within the limits of the question
presented, as it succinctly provided the only scenario where the jury’s percentages of fault
would affect the damages award. The Court’s answer was also accurate, as it comports
with the Court’s understanding that Minnesota law does not apportion fault between
-25-

negligent and intentional tortfeasors, as explained below.

And while the Court

acknowledges CRC’s concerns regarding neutrality and prejudice, the Court’s ordinary
practice is to provide an instructional special verdict form that guides the jury through the
questions in such a way that the jury knows the impact of their decisions. (See Trial Tr.
1827:9–1828:10.) Because the parties requested that such instructions be removed from
the special verdict form so that all of the questions on the verdict form were answered,
the Court determined that its answer to Juror Question 2 should tell the jury the impact
of their decisions, as they normally would have known under ordinary circumstances.
(See id.; Trial Tr. 1829:4–10.) Furthermore, in state court, juries are instructed on the
effect of their answers to comparative fault questions. Minn. R. Civ. P. 49.01(b). And
counsel for McDougall and CRC even acknowledged that the Court’s ordinary practice of
providing instructional special verdict forms was common in state and federal court. (Trial
Tr. 1824:16–19; 1829:11–12.) Because under ordinary circumstances the jury would have
been able to determine the impact of their percentages of fault, the Court’s answer was
not so prejudicial to CRC as to warrant a new trial. Cf. Ramstad v. Lear Siegler Diversified
Holdings Corp., 836 F. Supp. 1511, 1520–21 (D. Minn. 1993) (finding a conflict between
state rule requiring courts to instruct on the effect of comparative fault verdict and Rule
49 requiring courts to provide instructions necessary to make its factual findings).
*

*

-26-

*

In sum, the Court finds no basis for granting a new trial on any of CRC’s raised
grounds and will thus deny CRC’s Rule 59 motion for a new trial.
III.

DEFENDANT’S REQUEST TO AMEND JUDGMENT
Even if the liability judgment stands, CRC requests that the judgment be amended

to 22.5% of the damages to be proportionate to the 22.5% fault that the jury apportioned
to CRC, pursuant to Federal Rule of Civil Procedure 59(e). In effect, CRC’s request would
reduce the verdict judgment to $1,743,750.
“Rule 59(e) motions serve a limited function of correcting manifest errors of law
or fact or to present newly discovered evidence.” Innovative Home Health Care v. P.T.O.T. Assoc. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998) (quotations omitted). The
Court “has broad discretion to alter or amend a judgment under Rule 59(e).” SFH, Inc. v.
Millard Refrigerated Servs., Inc., 339 F.3d 738, 746 (8th Cir. 2003).
At trial, the parties disputed whether and how the jury should be instructed to
consider the fault of Neumiller with CRC. The parties’ dispute centered on whether the
fault of an intentional tortfeasor can be compared with that of a negligent tortfeasor
under Minnesota’s comparative fault statute. The Court ruled that if the jury found that
Neumiller was an intentional tortfeasor, it would not permit CRC to limit its exposure to
liability to the extent of its fault. (Mem. Op. & Order on Special Verdict Form and PostIncident Evidence (“SVF Order”) at 1–3, Apr. 17, 2024, Docket No. 229.)
Now, CRC again argues that any fault of CRC must be compared to Neumiller’s
fault, regardless of whether Neumiller engaged in an intentional tort. However, the Court
-27-

declines to alter its decision to not compare fault between CRC and Neumiller because
the jury found Neumiller to be an intentional tortfeasor. The Court previously addressed
a similar issue in ADT Security Services, Inc. v. Swenson, ex rel. Estate of Lee, 687 F. Supp.
2d 884, 894–96 (D. Minn. 2009), where the Court refused to find as a matter of law that
ADT, a negligent tortfeasor, would not be jointly and severally liable for the harm caused
by the man convicted of the couple’s murders. Id. at 896. The Court carefully analyzed
Minnesota’s comparative fault statute, Minn. Stat. § 604.01, and weighed differing
positions on the comparison between negligent and intentional tortfeasors under
Minnesota law. See, e.g., Michael K. Steenson, Joint and Several Liability in Minnesota:
The 2003 Model, 30 Wm. Mitchell L. Rev. 845, 878–81 (2004) (finding support for either
position). Notably, the Court acknowledged that Minn. Stat. § 604.01’s definition of fault
does not mention intentional torts, which the Court found consistent with the view that
intentional torts are simply out of the equation for comparative fault purposes. See ADT,
687 F. Supp. 2d at 895. Ultimately, the Court concluded that even if there are cases where
a negligent tortfeasor can defray some of its liability onto intentional tortfeasors through
the comparative fault statute, the negligent tortfeasor remains jointly and severally liable
in cases where it was responsible for protecting against the specific type of intentional
conduct that ultimately occurred. Id. at 896.
That same conclusion applies here, in a case where McDougall argued CRC was
responsible for taking necessary steps to avoid the kind of harm that ultimately claimed
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Ms. McDougall’s life. See Diehl, 2019 WL 4412976, at *4 (“[I]t was reasonably foreseeable
that R.B. would misuse the dust remover and become acutely intoxicated. If it was also
foreseeable that people who inhale the dust remover and become acutely intoxicated
were a danger to Diehl, 3M had a duty to protect Diehl from the foreseeable danger.”).
CRC’s citations to cases that did not address whether an intentional tortfeasor should be
included in the fault comparison do not change the Court’s conclusion. See Staab v.
Diocese of St. Cloud, 813 N.W.2d 68, 75 (Minn. 2012) (construing § 604.02, subd. 1 “to
provide that the principle of several liability limits the magnitude of a severally liable
person’s contribution to an amount that is in proportion to his or her percentage of fault,
as determined by the jury”); Staab v. Diocese of St. Cloud, 853 N.W.2d 713, 719 (Minn.
2014) (“The Legislature’s expression of a general rule of several liability subject to four
exceptions in subdivision 1 precludes an interpretation of subdivision 2 that would
effectively create a fifth exception to the several liability rule.”). The Court respectfully
rejects the dissent in Glay v. R.C. of St. Cloud, Inc., No. A23-1464, 2024 WL 2266939, at *8
(Minn. Ct. App. May 20, 2024) (“[T]he plain language of section 604.02 specifically permits
the comparison of fault between negligent and intentional tortfeasors.”). The Court finds
no reason to alter its careful conclusion that § 604.02 does not authorize the comparison
of fault between negligent and intentional tortfeasors, such that CRC and Neumiller’s
fault should not be compared.

-29-

CRC’s remaining arguments are no more convincing. CRC argues that because the
jury found Neumiller misused CRC Duster while driving, his fault should be compared to
CRC’s because “misuse of a product” is “fault” as defined by Minn. Stat. § 604.01.
However, the definition of fault in the statute is limited to negligent or reckless conduct
based on the qualifying language of the provision, and thus does not include intentional
misuse. See Minn. Stat. § 604.01, subd. 1a (“‘Fault’ includes acts or omissions that are in
any measure negligent or reckless toward the person or property of the actor or others,
or that subject a person to strict tort liability.” (emphasis added)).
CRC also argues that no reasonable jury could have found that Neumiller was
substantially certain that he would kill when he huffed CRC Duster and then drove on July
22, 2019. The Court already rejected this argument during trial. (SVF Order at 3–5.) The
test for intentionally tortious conduct is whether the tortfeasor “believes that the
consequences are substantially certain to result” from his act. Victor v. Sell, 222 N.W.2d
337, 339 (Minn. 1974). Intent can be inferred from the circumstances under Minnesota
law, R.W. v. T.F., 528 N.W.2d 869, 872 (Minn. 1995), and the evidence presented to the
jury could support either intentional or negligent misconduct. (SVF Order at 4.) The jury
ultimately determined that Neumiller acted intentionally, and sufficient evidence
supports that conclusion. As a result, the Court sees no reason to alter the judgment on
this matter.

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Finally, CRC argues that judicial estoppel, which “forbids a party from assuming
inconsistent or contradictory positions during the course of a lawsuit,” bars the intent
finding. State v. Profit, 591 N.W.2d 451, 462 (Minn. 1999). CRC’s argument is that
because McDougall petitioned for the approval of a settlement in his separate lawsuit
against Neumiller alleging that Ms. McDougall’s death was caused by Neumiller’s
negligent actions, McDougall should not be allowed to argue in this action that Neumiller
acted intentionally.
The Minnesota Supreme Court has not expressly adopted the doctrine of judicial
estoppel, which “is intended to protect the courts from being manipulated by
chameleonic litigants who seek to prevail, twice, on opposite theories.”

State v.

Pendleton, 706 N.W.2d 500, 507 (Minn. 2005). Because the Minnesota Supreme Court
has not formally adopted this doctrine, the Court declines to apply it to this case. Cf.
North Cent. Cos., Inc. v. Minerva Dairy, Inc., No. 16-3816, 2018 WL 4181605, at *5–6 (D.
Minn. Aug. 31, 2018).
But even if it did apply, the doctrine would not bar McDougall’s claims because not
all three conditions under the doctrine are met. The three conditions are (1) that the
party presenting inconsistent theories must have prevailed in its original position; (2) that
there is a clear inconsistency between the original and subsequent position; and (3) that
there are not any distinct or different issues of fact in the proceedings. Pendleton, 706
N.W.2d at 507. Here, however, McDougall did not “prevail” in his original position that
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Neumiller acted negligently in the other proceeding; instead, he settled the case and
therefore did not succeed “on a factual theory inconsistent to the one in question.”
Occidental Fire & Cas. Co. v. Soczynski, 765 F.3d 931, 935 (8th Cir. 2014). Further, the prior
proceeding served a different purpose and involved different facts from the one at bar,
as it served to secure car insurance coverage. (See Trial Tr. 1620:21–24.) Profit, 591
N.W.2d at 462 (“[J]udicial estoppel does not apply . . . where distinct or different issues
or facts are involved.”).
For the reasons discussed above, the Court does not find that any manifest errors
of law justify an amended judgment, and CRC does not present any new evidence.
Accordingly, the Court will deny CRC’s request to alter or amend the judgment.
IV.

PLAINTIFF’S MOTION TO AMEND JUDGMENT TO INCLUDE PREJUDGMENT AND
POST-JUDGMENT INTEREST
The Court next considers McDougall’s motion to amend the judgment to include

prejudgment and post-judgment interest pursuant to Rule 59(e).
A.

Prejudgment Interest

In a diversity action such as this, Minnesota law governs a request for prejudgment
interest. Matthew v. Unum Life Ins. Co. of Am., 639 F.3d 857, 864 (8th Cir. 2011). Under
Minnesota law, prejudgment interest is computed “from the time of the commencement
of the action or a demand for arbitration, or the time of a written notice of claim,
whichever occurs first” until judgment is entered. Minn. Stat. § 549.09, subd. 1(a)–(b).
Minnesota law clearly dictates that the prevailing party “shall receive interest” on any
-32-

award, with few limited exceptions. Minn. Stat. § 549.09, subd. 1(b). Where the
judgment or award exceeds $50,000, subject to certain exceptions that are inapplicable
here, “the interest rate shall be ten percent per year until paid.” Alby v. BNSF Ry. Co., 934
N.W.2d 831, 833 (Minn. 2019) (citing Minn. Stat. 549.09, subd. 1(c)(2) (2018)).
There are two types of prejudgment interest: pre-verdict interest and post-verdict
interest. McDougall claims he is entitled to both.
1.

Pre-Verdict Interest

McDougall claims he is entitled to $2,525,523.29 in pre-verdict interest. By
contrast, CRC argues that, if judgment is awarded, McDougall is only entitled to $149,330
in pre-verdict interest.
Pre-verdict interest is “an element of damages awarded to provide full
compensation by converting time-of-demand . . . damages into time-of-verdict damages.”
Marvin Lumber & Cedar Co. v. PPG Indus., Inc., 401 F.3d 901, 918 (8th Cir. 2005) (citing
Lienhard v. State, 431 N.W.2d 861, 865 (Minn. 1988)). It is designed to “compensate the
plaintiff for the loss occasioned by the defendant’s tort.” Lienhard, 431 N.W.2d 861, 865.
Where damages are not readily ascertainable, pre-verdict interest is computed
from the time that the action was commenced until the time of the verdict. Minn. Stat.
§ 549.09, subd. 1(b), (c)(2). It is undisputed that the damages in this case were not readily
ascertainable and that § 549.09 applies. Thus, the pre-verdict interest will be calculated
by multiplying the number of days between the commencement of the action and the

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verdict by the daily simple interest earned at the 10% statutory rate on the jury award,
less future damages.
First, the Court will determine the appropriate timeframe within which the preverdict interest accrued.

The pre-verdict interest began to run on the date that

McDougall commenced this action by filing his complaint, which was July 1, 2020. The
verdict was rendered on April 25, 2024. The parties disagree on the number of days that
pre-verdict interest accrued between the commencement of the action and the verdict.
McDougall argues that pre-verdict interest accrued from the commencement of the
action through the date that the verdict was rendered, or 1,395 days. 4 By contrast, CRC
claims that pre-verdict interest accrued from the commencement of the action to the
date that the verdict was rendered, or 1,394 days. It is the Court’s practice to calculate
pre-verdict interest through the date that the verdict was rendered. See, e.g., Steady
State Imaging, LLC v. General Elec. Co., No. 17-1048, 2023 WL 4203162, at *8 n.2 (D. Minn.
June 27, 2023); Selective Ins. Co. of Am. v. Heritage Constr. Cos., LLC No. 19-3174, 2024
WL 1886124, at *3 (D. Minn. Apr. 30, 2024). Accordingly, the Court finds that pre-verdict
interest accrued across the 1,395 days from the commencement of the action on July 1,
2020, through the date that the verdict was rendered on April 25, 2024.

4 Given the timeframe between the commencement of the litigation on July 1, 2020, and

the verdict’s rendering on April 25, 2024, the year 2020 had 184 days that accrued pre-verdict
interest, the years 2021, 2022, and 2023 each had 365 days that accrued pre-verdict interest, and
the year 2024 had 116 days that accrued pre-verdict interest. In total, there were 1,395 days.

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Second, the Court will determine the principal on which to base the interest—the
damages to be factored into the pre-verdict interest calculation. Section 549.09 dictates
that pre-verdict interest shall not be awarded on awards for future damages. Minn. Stat.
§ 549.09, subd. 1(b)(2); see Baufield v. Safelite Glass Corp., 831 F. Supp. 713, 719 (D. Minn.
1993) (“[T]he threshold issue is whether an award of prejudgment interest is proper.
Minn. Stat. § 549.09, subd. 1(b)(1)–(5) sets forth specific judgments for which preverdict
interest may not be awarded.”). At trial, McDougall’s damages expert, Dr. Felix Friedt,
testified that the present value of McDougall’s future losses was $1,142,000. This portion
of the jury award is not eligible for pre-verdict interest—and neither party disputes this.
Where the parties disagree, however, is on what portion of the remaining damages is
eligible.
On the one hand, McDougall argues that the remaining $6,608,000 ($7,750,000
minus $1,142,000) of the damages award is eligible for pre-verdict interest. On the other
hand, CRC argues that pre-verdict interest only accrued on the damages that Dr. Friedt
explicitly calculated as McDougall’s past economic losses—or $391,000. Because the jury
did not specify in the verdict what types of damages they awarded, CRC claims that the
Court cannot assume that the remaining $6,217,000 that the jury awarded ($7,750,000
minus the $1,142,000 in future losses and the $391,000 in past economic losses) is for
anything other than future damages. See Adams v. Toyota Motor Corp., 867 F.3d 903,
921 (8th Cir. 2017) (“[W]e predict that the Minnesota Supreme Court would conclude that
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prejudgment interest is not available for judgments that encompass multiple types of
damages . . . when it is impossible to differentiate between the types of damages included
in the judgment.”); Stinson v. Clark Equip. Co., 473 N.W.2d 333, 335–36 (Minn. Ct. App.
1991) (finding amount of prejudgment interest indeterminable because there was no way
to differentiate between the types of damages); Hagen v. State Bank of Cokato, No. C988-1407, 1989 WL 12432, at *3 (Minn. Ct. App. Feb. 21, 1989) (“As the jury verdict did not
distinguish between past and future damages and the statute plainly says interest cannot
be awarded for future damages, the trial court did not err in denying prejudgment
interest.”).
However, Minnesota law does not require a jury to spell out how and why it
apportioned every penny of its damages for its award to be eligible for pre-verdict
interest. It merely requires the Court to exclude pre-verdict interest from awards when
future damages are inextricable from other damages.

Here, future damages are

ascertainable. Cf. Adams, 867 F.3d 903, 919–21; Stinson, 473 N.W.2d at 335–36. Dr.
Friedt testified that McDougall’s future losses were $1,142,000, and the parties do not
dispute that calculation, so the Court will exclude this amount from the pre-verdict
interest principal. The remainder, $6,608,000, is eligible for pre-verdict interest. 5

5 Pre-verdict interest has regularly been awarded on past general damages even when

they were unascertainable. See, e.g., Myers v. Hearth Techs., Inc., 621 N.W.2d 787, 794 (Minn.
Ct. App. 2001); Skifstrom v. City of Coon Rapids, 524 N.W.2d 294, 296–97 (Minn. Ct. App. 1994);
see also Children’s Broad. Corp. v. Walt Disney Co., 357 F.3d 860, 869–70 (8th Cir. 2004) (“The
amended [§ 549.09] allows prejudgment interest irrespective of a defendant’s ability to ascertain

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Having determined that the pre-verdict interest accrued across the 1,395 days
between the commencement of the action and the verdict and that $6,608,000 of the
jury award is eligible for pre-verdict interest, the Court finds that McDougall is entitled to
$2,525,523.29 in pre-verdict prejudgment interest. 6
2.

Post-Verdict Interest

McDougall claims he is entitled to $127,619.09 in post-verdict interest. CRC
contends McDougall is only entitled to $101,717.40 in post-verdict interest.
Minnesota law provides for the accrual of interest “from the time of the verdict . . .
until judgment is finally entered.” Minn. Stat. § 549.09, subd. 1(a). Post-verdict interest
is “compensation for the loss of use of money as a result of the nonpayment of a
liquidated sum, for which liability has already been determined, not compensation for the
injury giving rise to liability.” Lienhard, 431 N.W.2d at 865. Post-verdict interest accrues
on the total award, including pre-verdict interest, because “preverdict interest is part of
compensatory damages,” so “it is part of a prevailing party’s judgment or award.”
Hogenson v. Hogenson, 852 N.W.2d 266, 276 (Minn. Ct. App. 2014). Post-verdict interest

the amount of damages for which he might be held liable.” (cleaned up)); Gen. Mills Operations,
LLC v. Five Star Custom Foods, LLC, 845 F. Supp. 2d 975, 978–79 (D. Minn. 2012) (rejecting
argument that damages must have been ascertainable to receive pre-verdict interest); Archer
Daniels Midland Co. v. Aon Risk Servs., Inc. of Minn., No. 97-2185, 2002 WL 31185884, at *9–10
(D. Minn. Sept. 27, 2002) (same).
6 This sum is calculated by dividing 10% of the principal, $6,608,000, by 365 days to get a
daily pre-verdict interest amount of $1,810.41096. The daily pre-verdict interest amount is then
multiplied by 1,395 days to reach the pre-verdict interest amount of $2,525,523.29.

-37-

is calculated by multiplying the number of days between the verdict and the entry of
judgment by the daily simple interest earned at the 10% statutory rate on the sum of the
compensatory damages and pre-verdict interest.
Because post-verdict interest is calculated by combining the jury award with the
pre-verdict interest, the parties’ contrasting post-verdict calculations are due, in large
part, to their contrasting pre-verdict interest calculations. Because the Court determined
that the pre-verdict interest is $2,525,523.29, that amount will be combined with the jury
award of $7,750,000 for a total principal of $10,275,523.29 on which to base the postverdict interest. 7
The parties’ main disagreement relates to the time period over which post-verdict
interest accrued. McDougall argues that post-verdict interest accrued until the Court
entered amended judgment on June 14, 2024, whereas CRC argues that post-verdict
interest accrued until the Court entered original judgment on June 11, 2024.
Post-verdict interest accrued until the Court entered judgment on June 11, 2024.
“Logically, the accrual of prejudgment interest ends when the accrual of postjudgment
interest begins, and postjudgment interest, which is a procedural matter of federal law,
begins to accrue when a ‘money judgment’ is entered.” U.S. Bank Nat’l Ass’n v. Indian
Harbor Ins. Co., No. 12-3175, 2015 WL 12778848, at *6 (D. Minn. Mar. 19, 2015) (quoting

7 McDougall appears to have erroneously subtracted the future damages, or $1,142,000,

from the jury award in reaching his proposed principal of $9,133,523.29 for the post-verdict
interest calculation ($6,608,000 plus $2,525,523.29 equals $9,133,523.29).

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28 U.S.C. § 1961(a)). In the judgment entered on June 11, 2024, the Court accepted the
jury’s verdict and entered judgment in favor of McDougall against CRC for the full
judgment amount. While the amended judgment entered on June 14, 2024, specified the
monetary amount of “$7,750,000” against CRC, the June 11 judgment constituted a
“money judgment” because the amount of the judgment was clearly ascertainable.
ResCap Liquidating Tr. v. Primary Residential Mortg., Inc., 59 F.4th 905, 923 (8th Cir. 2023)
(“Section 1961(a) does not say ‘final judgment,’ it says ‘money judgment.’”); Perficient,
Inc. v. Munley, 43 F.4th 887, 890–91 (8th Cir. 2022) (“[A] judgment awarding damages but
not specifying the amount may still be considered final if only ministerial tasks in
determining damages remain. . . . The determination of damages is ministerial where it
requires no independent legal judgment.” (cleaned up)). Indeed, it was clear what the
Court meant by the full judgment amount in the judgment entered on June 11. As a result,
the post-verdict interest accrued through June 11, 2024. This means that post-verdict
interest accrued over 48 days. 8
Having determined that the post-verdict interest accrued across the 48 days
between the jury’s verdict and the original judgment and that $10,275,523.29 is eligible

8 CRC calculates 47 days, presumably by omitting the final day on which the Court entered

judgment from its calculation. However, it is the Court’s practice to include the final day in its
post-verdict calculations. See, e.g., Steady State, 2023 WL 4203162, at *9.

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for post-verdict interest, the Court finds that McDougall is entitled to $135,130.169 in
post-verdict prejudgment interest. 9
Taking pre-verdict and post-verdict interest together then, the total amount of
prejudgment interest that McDougall is entitled to under § 549.09 is $2,660,653.46.
Pursuant to Rule 59(e) of the Federal Rules, the Court will amend the final judgment to
add that amount to the verdict awarded by the jury. The final judgment will thus be
amended to be $10,410,653.46. 10
B.

Post-Judgment Interest

The parties do not dispute applying post-judgment interest to the judgment
pursuant to 28 U.S.C. § 1961(a), which provides that [i]nterest shall be allowed on any
money judgment in a civil case recovered in a district court.” Post-judgment interest is
mandatory and governed by federal law. Travelers Prop. Cas. Inc. Co. of Am. v. Nat’l Union
Ins. Co. of Pittsburg, 735 F.3d 993, 1007–08 (8th Cir. 2013). Post-judgment interest “shall
be calculated from the date of the entry of the judgment, at a rate equal to the weekly
average 1-year constant maturity Treasury yield, as published by the Board of Governors
of the Federal Reserve System, for the calendar week preceding the date of the

9 This sum is calculated by dividing 10% of the principal, $10,275,523.29, by 365 days to

get a daily post-verdict interest amount of $2,815.21186. The daily post-verdict interest amount
is then multiplied by 48 days to reach the post-verdict interest amount of $135,130.169.
10 This sum is computed by adding the $7,750,000 jury award, $2,525,523.29 in preverdict interest, and $135,130.169 in post-verdict interest for a total of $10,410,653.46.

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judgment.” 28 U.S.C. § 1961(a). Interest is computed daily to the date of payment and
compounded annually. 28 U.S.C. § 1961(b).
The parties agree that the post-judgment interest rate on the $7,750,000 jury
award is 5.12%, which was the weekly average 1-year constant maturity Treasury yield
for the week before the June 11, 2024, judgment. However, the parties disagree on
whether an additional interest rate should apply if prejudgment interest and costs are
added to the jury award. CRC argues that any hypothetical amended judgment awarding
prejudgment interest and costs should be subject to a different interest rate, which
cannot yet be determined because the post-judgment interest rate depends on the entry
of such amended judgment. Munson Hardisty, LLC v. Legacy Pointe Apartments, LLC, No.
3:15-547, 2023 WL 6393157, at *5 (E.D. Tenn. Sept. 29, 2023) (calculating post-judgment
interest based on different rates for the verdict judgment and the amended judgment
including prejudgment interest).
Despite CRC’s well-taken claim, the Court will apply a single post-judgment interest
rate. This conclusion aligns with the Eighth Circuit’s logic in Jenkins v. Missouri, where the
court held that a litigant is entitled to post-judgment interest on its attorney’s fees from
the date that the litigant becomes entitled to the award, rather than the date when the
court quantifies the fees. 931 F.2d 1273, 1275–76 (8th Cir. 1991). Further, the Court’s
conclusion aligns with the Supreme Court’s holding in Kaiser Aluminum & Chemical Co. v.
Bonjorno, where the court held that the language of § 1961 “directs that a single
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applicable rate of interest be applied to the judgment.” 494 U.S. 827, 838 (1990).
Applying Jenkins and Kaiser to this case, the Court finds that because post-judgment
interest is mandatory, see Travelers, 735 F.3d at 1008, McDougall became entitled to
post-judgment interest when the Court entered the June 11, 2024, judgment against CRC
for the full judgment amount, even though prejudgment interest was not yet quantified.
As a result, this Order’s amendment to the judgment to quantify the prejudgment interest
does not require its own post-judgment interest rate. Further, applying a single rate
aligns with previous court practices. See, e.g., Selective Ins., 2024 WL 1886125, at *3;
Schwendimann v. Arkwright Advanced Coating, Inc., No. 11-820, 2018 WL 3621206, at
*23 (D. Minn. July 30, 2018); Archer Daniels Midland Co. v. Aon Risk Servs., Inc. of Minn.,
No. 97-2185, 2002 WL 31185884, at *11 (D. Minn. Sept. 27, 2002). Accordingly, the postjudgment interest rate of 5.12% will apply to the $7,750,000 jury award as of the June 11,
2024, judgment and will apply to the sum of the total jury award with pre-judgment
interest, $10,410,653.46, and costs as of the date of this Order, computing daily and
compounding annually until the judgment is satisfied.
*

*

*

In sum, the Court will grant McDougall’s motion to amend the judgment to include
prejudgment and post-judgment interest in part. The Court will order CRC to pay
McDougall $2,525,523.29 in pre-verdict prejudgment interest and $135,130.169 in postverdict prejudgment interest and will thus amend the judgment to be $10,410,653.46.
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Additionally, the Court will order CRC to pay post-judgment interest at a rate of 5.12%
starting from the June 11, 2024, judgment for the jury award and from the date of this
Order for the jury award plus pre-judgment interest and costs, until the judgment is
satisfied.
CONCLUSION
Because the Court finds no ground warranting JMOL as sufficient evidence
supports the jury’s verdict in favor of McDougall on the design defect claim, the Court will
deny CRC’s Rule 50(b) motion. Because the Court finds no basis for granting a new trial
on any of CRC’s raised grounds, the Court will deny CRC’s Rule 59 motion for a new trial.
Because the Court finds no manifest errors of law and CRC does not present any new
evidence, the Court will deny CRC’s request to amend the judgment to be proportionate
to the percentage of fault that the jury apportioned to CRC. Finally, the Court will grant
McDougall’s motion to amend the judgment to include prejudgment and post-judgment
interest in part, as consistent with this opinion.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Defendant’s Motions for Judgment as a Matter of Law, a New Trial, and Amended
Judgment [Docket No. 312] are DENIED; and
2. Plaintiff’s Motion to Alter/Amend/Correct Judgment [Docket No. 313] is GRANTED
in part, as follows:
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a. The Amended Judgment [Docket No. 310] is amended to be
$10,410,653.46;
b. CRC is ordered to pay pre-verdict prejudgment interest in the amount of
$2,525,523.29;
c. CRC is ordered to pay post-verdict prejudgment interest in the amount of
$135,130.169; and
d. CRC is ordered to pay post-judgment interest at a rate of 5.12% starting
from the June 11, 2024, judgment for the jury award and from the date of
this Order for the jury award plus the prejudgment interest and costs,
computing daily and compounding annually until the judgment is satisfied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: November 26, 2024
at Minneapolis, Minnesota.

____s/John R. Tunheim____
JOHN R. TUNHEIM
United States District Judge

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