Been v. O.K. Industries, Inc.

FILED
United States Court of Appeals
Tenth Circuit

October 13, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

CHARLES BEEN, individually, d/b/a
Creekside Farm, Inc.; DONALD
FROST; EDWIN JOHNSTON; BOB
FIELDS, individually, d/b/a Okie Blue
Sky Farm, Inc.; GENE BLACKWELL,

Plaintiffs-Appellees,

v. No. 08-7078
(D.C. No. 6:CV-02-00285-RAW)
O.K. INDUSTRIES, INC., an (E. D. Okla)
Arkansas corporation and as
administrator of health and benefit
plans; O.K. FOODS, INC., an
Arkansas corporation and as
administrator of health and benefit
plans; O.K. FARMS, INC., an
Arkansas corporation and as
administrator of health and benefit
plans; O.K. BROILER FARMS
LIMITED PARTNERSHIP, an
Arkansas limited partnership and as
administrator health and benefit plans,

Defendants-Appellants.

ORDER AND JUDGMENT *

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
Before BRISCOE, Chief Judge, BALDOCK, and GORSUCH, Circuit Judges.

Plaintiffs-Appellees (“Growers”) filed this action alleging that Defendants-

Appellants O.K. Industries, Inc., O.K. Farms, Inc., O.K. Foods, Inc., and O.K.

Broiler Farms Limited Partnership (collectively “OK”) violated § 202(a) of the

Packers and Stockyards Act (PSA), 7 U.S.C. § 192(a). After a jury trial, the

Growers prevailed on their claim and were awarded $21,141,975, which the

district court reduced to $14,511,935. OK appeals, arguing: (1) the Growers

failed to prove that OK engaged in an unfair practice “with respect to live

poultry” under the PSA; (2) the Growers failed to prove that OK’s allegedly

unfair practices injured consumers and that OK had sufficient market power in the

output market; (3) there was insufficient evidence to support two of the five

possible theories of liability; (4) the district court erroneously admitted expert

testimony; and (5) the district court failed to instruct the jury on the statute of

limitations. As discussed below, we have jurisdiction pursuant to 28 U.S.C. §

1291, and affirm.

I

OK is a vertically integrated poultry producer operating in Arkansas and

Oklahoma, and it is the largest poultry integrator in Oklahoma. OK is involved in

almost every stage of the production and wholesale of poultry. However, OK

2
does not handle the raising of broiler chickens to slaughtering age, but instead

enters into contracts with various “growers” who raise the chickens.

Under OK’s standard, non-negotiable contracts, these growers agree to use

only chicks and supplies provided by OK. The individual growers also agree not

to sell their chickens to other poultry integrators. In turn, OK agrees to provide a

grower with only one flock of chicks, which typically takes seven weeks to raise.

Then, OK may provide the grower with replacement flocks. Additionally, OK

requires each grower to obtain financing and build chicken houses to OK’s

specifications, which can cost nearly $160,000. OK periodically requires growers

to update their chicken houses to meet recent updated specifications.

Plaintiffs-Appellees are a class of growers operating in Oklahoma under

contract with OK. They brought this suit alleging, in part, that the terms of OK’s

non-negotiable contracts and OK’s performance under those contracts violate the

PSA as unfair practices.

OK filed a motion for summary judgment, and the district court ruled that

the PSA required proof of injury to competition, and the Growers failed to

establish a genuine issue of material fact regarding competitive injury. The

district court granted summary judgment for OK on the PSA claims, as well as on

state law claims of unconscionability. The Growers appealed the grant of

summary judgment.

On appeal, we held that “a plaintiff who challenges a practice under [PSA]

3
§ 202(a) [must] show that the practice injures or is likely to injure competition.”

Been v. O.K. Indus., Inc., 495 F.3d 1217, 1230 (10th Cir. 2007). Applying that

holding to the evidence presented by the parties on summary judgment, we first

concluded that “[t]he record contain[ed] evidence that support[ed] the Growers’

contention that OK [wa]s a monopsony in the relevant regional market.” Id. at

1231. 1 We in turn held that, “to establish that the practices of a monopsonist have

injured or are likely to injure competition, a plaintiff does not have to be a

competitor of the buyer or demonstrate that the buyer has improperly excluded

other competitors. Instead, the plaintiff must show that the monopsonist’s

practices have caused or are likely to cause the anticompetitive effect associated

with monopsonies, namely the arbitrary manipulation of market prices by

unilaterally depressing seller prices on the input market with the effect (or likely

effect) of increasing prices on the output market.” Id. at 1232. We ultimately

concluded “that a genuine issue of material fact exist[ed] as to whether OK

engaged in unfair practices in violation of § 202(a).” Id. at 1233. “In particular,

we note[d] that the record contain[ed] evidence,” most notably “expert

testimony,” “of the classic monopsony injury, namely that OK [wa]s depressing

1
A monopsony is a “condition of the market in which there is but one
buyer for a particular commodity.” Telecor Commc’ns, Inc. v. Sw. Bell Tel. Co.,
305 F.3d 1124, 1133 n.4 (10th Cir. 2002) (internal quotation marks omitted). “As
such, a monopsony is to the buy side of the market what a monopoly is to the sell
side . . . .’” Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., Inc.,
549 U.S. 312, 320 (2007).

4
the prices it pa[id] the Growers and reselling at inflated prices.” Id. We thus

reversed the district court’s grant of summary judgment for OK on the PSA claim

but affirmed the grant of summary judgment regarding the unconscionability of

the contracts under state law.

The case proceeded to a jury trial, where the Growers alleged five specific

unfair practices that purportedly caused competitive injury in violation of the

PSA. The Growers offered testimony that: (1) OK exercised extensive control

over the Growers in almost every aspect of production and pay; (2) OK increased

the number of days between chicken flocks that it placed with the Growers; (3)

OK reduced the number of chickens per square foot of housing space, or “bird

density,” placed with the Growers; (4) OK exercised control over the

specifications for the chicken houses; and (5) OK shared detailed information

with other integrators in the form of “Agri Stats,” but did not share this

information with the Growers, leading to a severe asymmetry of information.

At trial, the Growers offered the expert testimony of Dr. C. Robert Taylor,

a professor of agricultural economics, who concluded that each of the above

practices reduced production, depressed Grower pay compared to competitive-

market levels, and likely increased output prices. Taylor also testified that OK’s

production practices impacted immediate resale and national prices, conclusions

he reached after performing four regression analyses.

Taylor further testified regarding his methodology for calculating the

5
Growers’ damages. Taylor calculated the difference between the profits that the

Growers actually received and the profits they would have earned in a competitive

market, i.e., one free of the alleged violations of the PSA. He concluded that OK

underpaid the Growers by up to $14,511,935 as a result of their violations during

the class period. OK repeatedly objected to Taylor’s testimony, requesting an

opportunity to voir dire the witness. The district court denied each request,

stating that OK would have its opportunity on cross-examination. Following

cross-examination, there was no request to exclude Taylor’s testimony, in whole

or in part.

The jury returned a verdict, finding that OK violated § 202(a) of the PSA,

and awarded the Growers $21,141,975. The district court entered judgment

reflecting the verdict and damages on March 25, 2008. On April 8, 2008, OK

filed motions for judgment as a matter of law and for a new trial. On July 3,

2008, the district court denied OK’s motion for judgment as a matter of law, and

it denied OK’s motion for a new trial on the condition that the Growers consent to

remittitur, reducing the damages to $14,511,935. The district court stated that it

would enter an amended judgment upon Grower’s acceptance of the remittitur.

The Growers consented to the remittitur on July 14, 2008, by filing a document

titled “Plaintiffs’ Consent to Remittitur,” but the district court never entered an

amended judgment after that consent was filed. On August 7, 2008, the Growers

and OK stipulated to dismissing with prejudice all remaining individual claims.

6
OK filed a notice of appeal on August 12, 2008.

II

A. Appellate Jurisdiction

Before considering the merits of this appeal, we must determine whether

we have appellate jurisdiction. We raised this issue sua sponte and have received

supplemental briefing from the parties.

Generally, we have jurisdiction only over “final decisions” from the district

courts. 28 U.S.C. § 1291. In a civil case, a notice of appeal must be filed within

thirty days after the entry of judgment. Fed. R. App. P. 4(a)(1)(A). However,

when a party files a motion for a new trial, “the time to file an appeal runs for all

parties from the entry of the order disposing of” that motion. Fed. R. App. P.

4(a)(4)(A)(v).

Here, OK filed a motion for a new trial after the district court entered a

judgment reflecting the jury’s verdict and award of damages. The district court

then conditionally denied OK’s motion, after raising sua sponte the issue of

remittitur. Specifically, the district court’s July 3, 2008 order stated:

It is the Order of the Court that the motion of the defendants for new
trial . . . is hereby DENIED. . . . The court suggests remittitur of the
damages award to $14,511,935. Plaintiffs are given ten days from the
date of this order to file a consent to remittitur, at which time an
amended judgment will be entered. If plaintiffs do not consent to the
remittitur, a new trial as to damages will be ordered.

7
Appellees’ App. at 93. The Growers filed a document labeled “Plaintiffs’

Consent to Remittitur” with the district court, stating: “Pursuant to the Court’s

Order of July 3, 2008, Plaintiffs hereby consent to remittitur of the damages

award in this case from $21,141,975 to $14,511,935.” Appellees’ App. at 94.

However, the district court never entered an amended judgment after the Growers

filed their consent to remittitur.

The critical issue in the present case is whether OK could have filed an

appeal once the Growers consented to the remittitur, or if OK was required to

wait for the district court to enter an amended judgment. Other circuits have

considered this issue, with conflicting results.

The majority of our sister circuits that have considered this issue have

concluded that acceptance of remittitur renders the district court’s decision final.

The Eleventh Circuit was faced with an identical situation in Wright v. Preferred

Research, Inc., 891 F.2d 886 (11th Cir. 1990) (per curiam). In Wright, the district

court denied the defendant’s motion for new trial on the condition that the

plaintiff consent to remittitur. See id. at 888. The Eleventh Circuit stated:

“When [plaintiff] accepted the remittitur . . . the judgment became final and

appealable, actuating the 30-day period within which a notice of appeal must be

filed.” Id.; see also Mauriello v. Univ. of Medicine and Dentistry of N.J., 781

F.2d 46, 49 (3d Cir. 1986) (“The question is whether the judgment became final

when the remittitur order was entered or when the plaintiff’s acceptance was

8
filed. We conclude that the latter date is determinative for computing the time for

appeal.”); Howell v. Marmpegaso Compania Naviera, S.A., 566 F.2d 992, 993

(5th Cir. 1978) (per curiam) (concluding that the plaintiff’s “acceptance of the

remittitur rendered the judgment final and appealable, and actuated the 30-day

time limit within which notice of appeal must be filed”).

On the other hand, the Sixth Circuit appears to require entry of a separate,

amended judgment before a party may appeal from remittitur. See Anderson v.

Roberson, 249 F.3d 539, 542–43 (6th Cir. 2001). In Anderson, the jury returned

its verdict for the plaintiffs, and the defendants filed motions for judgment as a

matter of law, new trial, and remittitur. Id. at 541. The district court ruled that

defendants would be granted a new trial if plaintiffs rejected the remittitur. Id.

Although it was unclear whether the plaintiffs ever actually accepted or rejected

the remittitur, the Sixth Circuit reasoned:

Both plaintiffs and defendants have missed the point. Once the district
court entered its order giving the plaintiffs the choice between
accepting the remittitur or having a new trial, there was no final order
from which the parties could appeal. The parties appear to believe that
the plaintiffs’ action — either accepting or rejecting the remittitur —
ends the district court’s jurisdiction and opens the door for the case to
proceed on appeal. The parties are mistaken. Except for those well-
defined occasions when we have jurisdiction over an interlocutory
appeal, we do not have jurisdiction over an appeal until the district
court issues a final, appealable order. . . . Until the district court either
enters a final order based upon the plaintiffs’ election to accept the
remittitur, or proceeds to judgment after a new trial, there is nothing for
this court to review.

Id. at 542–43 (citations omitted).

9
 The Growers also direct our attention to language from the Second

Circuit’s opinion in Ortiz-Del Valle v. Nat’l Basketball Ass’n, 190 F.3d 598, 600

(2d Cir. 1999) (per curiam). In Ortiz-Del Valle, the district court denied the

defendant’s motion for a new trial conditioned upon plaintiff’s acceptance of a

new trial or remittitur. Id. at 599. The plaintiff rejected the remittitur and opted

for a new trial. Id. The defendants appealed, arguing that the order conditionally

denying the motion for a new trial was final and appealable on the date of entry of

that order. Id. The Second Circuit disagreed, and noted in dicta that “[w]here the

plaintiff elects the remittitur, the defendant’s time for filing the notice of appeal

runs from the date of entry of the amended judgment reduced as a result of the

remittitur. See Fed. R. Civ. P. 58 (judgment not effective until set forth in

separate document and entered on civil docket) . . . .” Id. at 600. The Growers

contend that this language supports the conclusion that we lack jurisdiction until

the district court enters a separate, amended judgment. We disagree.

The above-quoted language from Ortiz-Del Valle does not speak to the

finality of the district court’s decision. Rather, the quoted portion of the Second

Circuit’s ruling addresses only the running of the time to file a notice of appeal,

explicitly relying on Federal Rule of Civil Procedure 58. Under the version of

Rule 58 and the Federal Rules of Appellate Procedure in effect in 1999, some

courts had held that the time to file a notice of appeal began to run only once a

separate judgment was entered; if a district court never entered a separate

10
judgment, the time to appeal never began to run. See Fed. R. Civ. P. 58 advisory

committee’s note (2002 amendments); see also Casey v. Long Island R.R. Co.,

406 F.3d 142, 148 (2d Cir. 2005). However, in 2002, the Federal Rules of Civil

and Appellate Procedure were amended to address this problem and ensure that

the time to appeal was not indefinite. See Fed. R. Civ. P. 58 advisory

committee’s note (2002 amendments). Therefore, the Second Circuit’s opinion

that “the defendant’s time for filing the notice of appeal runs from the date of

entry of the amended judgment,” Ortiz-Del Valle, 190 F.3d at 600, is not helpful

in resolving the jurisdictional issue in the present appeal.

If anything, the reasoning in Ortiz-Del Valle supports the conclusion that

an order becomes final on the date that a party consents to remittitur. Notably,

the Second Circuit stated that “[t]he motion [for a new trial] . . . was disposed of

on the date when plaintiff rejected the remittitur and instead opted for a new

trial.” Ortiz-Del Valle, 190 F.3d at 600. By the same logic, OK’s motion for a

new trial would have been disposed of on the date when Growers consented to the

remittitur.

We find the reasoning of the Third, Fifth, and Eleventh Circuits to be more

persuasive. When a district court enters an order denying a motion for a new trial

on the condition that a plaintiff accept a remittitur for specified damages, the

decision is deemed final once the plaintiff accepts the remittitur. “For a ruling to

be final, ‘it must end the litigation on the merits, and the [district court] must

11
clearly declare [its] intention in this respect.’” Harbert v. Healthcare Serv.

Group, Inc., 391 F.3d 1140, 1145 (10th Cir. 2004) (quoting FirsTier Mortgage Co.

v. Investors Mortgage Ins. Co., 498 U.S. 269, 273–74 (1991)). A final decision

leaves nothing for the district court but to execute the judgment. Id. “[T]he

touchstone of a final order is a decision by the court that a party shall recover

only a sum certain.” Id. (internal quotation marks omitted). In the case at bar,

liability had already been determined, and damages were set by the district court

and the Growers’ consent. See Green Tree Fin. Corp.-Alabama v. Randolph, 531

U.S. 79, 86 (2000) (“[T]he term ‘final decision’ . . . is a decision that ends the

litigation on the merits and leaves nothing more for the court to do but execute

the judgment.” (internal quotation marks omitted)). Accordingly, Growers’

acceptance of the remittitur rendered the district court’s order final. See Howell,

566 F.2d at 993.

Although the district court stated that it would enter an amended judgment

after the Growers consented to the remittitur, that fact does not affect our

appellate jurisdiction. The district court’s decision was final regardless of the

court’s failure to file a separate judgment. We find persuasive a recent decision

of the Seventh Circuit, Davis v. Advocate Health Center Patient Care Express,

523 F.3d 681 (7th Cir. 2008). In Davis, the district court gave the plaintiff

twenty-five days to pay a filing fee and “noted that if [he] failed to comply with

that deadline, his suit would be dismissed.” Id. at 683. The plaintiff never paid

12
the fee, but instead, he waited for the deadline to pass and then filed a notice of

appeal. Id. The Seventh Circuit acknowledged that “the district court stated a

plan to enter a final judgment in [twenty-five] days unless [the plaintiff] paid his

fee, and when [he] refused to pay the fee the court neglected to follow through

with its plan,” and enter a separate order dismissing the case. Id. Nonetheless,

the Seventh Circuit concluded that the “suit ha[d] ended at the district court

level,” and thus, the decision was final and appealable. See id.

Similarly, although the district court in the case at bar did not follow

through with its plan to enter an amended judgment reflecting the reduced

damages, the decision was nonetheless final upon the Growers’ consent to the

remittitur. The district court indicated its intent that its decision was final,

explicitly ordering that the Growers had ten days to consent to the remittitur, “at

which time an amended judgment will be entered.” Appellees’ App. at 93

(emphasis added); see Davis, 523 F.3d at 683 (“[T]he district court ordered that,

unless [plaintiff] paid his fee, the case would be dismissed (though the court

never actually issued a separate order carrying out that threat).”). All that

remained at the district court level was for the “ministerial” act of entering an

amended judgment. See Star Ins. Co. v. Risk Mktg. Group Inc., 561 F.3d 656,

658 (7th Cir. 2009) (“[O]rders that specifically contemplate further activity in the

district court are generally not final. However, if an order contemplates only

ministerial actions by the court, finality may exist.” (citations and internal

13
quotation marks omitted)); see also Thompson v. Gibson, 289 F.3d 1218, 1221

(10th Cir. 2002) (“[P]reparing and entering a judgment is a ministerial task that

can be easily and routinely performed by the Clerk of the Court or his deputies.”).

Additionally, even though an amended judgment was never set out in a

separate document, we still have jurisdiction over the final decision of the district

court. Generally, “[e]very judgment and amended judgment must be set out in a

separate document . . . .” Fed. R. Civ. P. 58(a). However, “a separate document

is not required for an order disposing of a motion . . . for a new trial, or to alter or

amend the judgment, under Rule 59 . . . .” Fed. R. Civ. P. 58(a)(4); but see Fed.

R. Civ. P. 58 advisory committee’s note (2002 amendments) (“[I]f disposition of

the [Rule 59] motion results in an amended judgment, the amended judgment

must be set forth on a separate document.”); Employers Ins. of Wausau v. Titan

Int’l, Inc., 400 F.3d 486, 489 (7th Cir. 2005) (concluding that an order granting a

motion for an amended judgment requires a separate document).

We need not decide whether the district court’s order—which denied OK’s

motion for a new trial, but amended the award of damages—required entry of a

separate document. Even if the district court should have entered an amended

judgment in a separate document, “[a] failure to set forth a judgment or order on a

separate document . . . does not affect the validity of an appeal from that

judgment or order.” Fed. R. App. P. 4(a)(7)(B).

Moreover, we note that the separate-document requirement does not affect

14
the timeliness of this appeal. Generally, if a separate document is not required,

then a judgment or order is considered entered when it is entered in the docket.

Fed. R. App. P. 4(a)(7)(A)(I); see also Fed. R. Civ. P. 58(c)(1). 2 If, on the other

hand, a separate document is required, then the judgment or order is considered

entered when it is entered in the docket “and when the earlier of these events

occurs: [1] the judgment or order is set forth on a separate document, or [2] 150

days have run from entry of the judgment or order in the civil docket under

Federal Rule of Civil Procedure 79(a).” Fed. R. App. P. 4(a)(7)(A)(ii); see

also Fed. R. Civ. P. 58(c)(2). 3 OK filed its notice of appeal within thirty days of

the Growers’ consent to remittitur. Thus, under either scenario, the appeal was

timely. See Fed. R. App. P. 4(a)(4)(A).

Additionally, we note when OK filed its notice of appeal, there were no

individual claims pending before the district court. When the Growers consented

to the remittitur on July 14, individual plaintiffs still had unresolved claims

against OK. “As a general matter, a judgment in a consolidated action that does

2
Although, as discussed above, the district court’s order conditionally
denying the motion for a new trial was not final when it was entered. Rather, it
became final once the Growers satisfied the district court’s condition of
consenting to the remittitur. See Davis, 523 F.3d at 683 (“[M]ore than 150 days
have passed since [plaintiff’s] deadline to pay the fee, and the separate document
requirement is now moot.”).
3
In such a case, although the notice of appeal would have been premature
when filed, it would have been effective when the judgment was deemed entered,
Fed. R. App. P. 4(a)(2), 150 days after consent to remittitur. Cf. Davis, 523 F.3d
at 683.

15
not dispose of all claims is not considered a final appealable decision under §

1291.” Jackson v. Volvo Trucks N. Am., Inc., 462 F.3d 1234, 1238 (10th Cir.

2006). On the other hand, “where [a] dismissal finally disposes of [a] case so that

it is not subject to further proceedings in federal court, the dismissal is final and

appealable.” Id. (internal quotation marks omitted). And here, the individual

plaintiffs and OK stipulated to dismissing with prejudice the remaining claims on

August 7, 2008. See Green Tree, 531 U.S. at 86 (“The District Court’s order . . .

dismissed respondent’s claims with prejudice, leaving the court nothing to do but

execute the judgment. That order plainly disposed of the entire case on the merits

and left no part of it pending before the court.”); Rabbi Jacob Joseph Sch. v.

Province of Mendoza, 425 F.3d 207, 210 (2d Cir. 2005) (“Immediate appeal is

available to a party willing to suffer voluntarily the district court’s dismissal of

the whole action with prejudice . . . .”). Thus, when OK filed its notice of appeal,

there were no other claims pending before the district court. 4

Because OK filed a timely notice of appeal from a final decision of the

district court, we have jurisdiction over this appeal. Accordingly, we turn to the

4
Growers accepted the remittitur on July 14, 2008, and OK then timely
filed its notice of appeal on August 12, 2008. We offer no opinion on whether the
time to file a notice of appeal may be tolled until the remaining claims were
dismissed with prejudice because OK’s notice of appeal was timely from the date
of the Growers’ acceptance of the remittitur.

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merits of OK’s arguments. 5

B. Merits

OK argues on appeal that several trial errors require that the judgment be

reversed and dismissed, or in the alternative, a new trial should be granted.

Specifically, OK contends (1) the Growers failed to prove that OK used an unfair

practice “with respect to live poultry” under the PSA; (2) the Growers failed to

prove that OK had sufficient market power in the output market; (3) there was

insufficient evidence to support two of the five possible theories of liability; (4)

the district court erroneously admitted expert testimony; and (5) the district court

failed to instruct the jury on the statute of limitations. As outlined below, we

reject each of these contentions.

1. The meaning of an unfair practice “with respect to live poultry”

OK argues that the PSA requires the Growers to prove that OK used an

unfair practice with respect to actual, live birds that have already hatched. In

particular, OK argues that under the statute, the Growers were required to show

that OK produced certain actual, live chicks, and then either destroyed them or

otherwise refused to allow the Growers to raise them. We review issues of

5
The Growers request that we should direct the district court to enter an
amended judgment, and inform the district court that it has jurisdiction to act on a
motion dated July 18th regarding collateral matters such as costs and fees.
Whether the district court retains jurisdiction over any remaining collateral
matters has not been presented as an issue on appeal. Our role is not to advise the
district court regarding motions that may currently be pending.

17
statutory interpretation de novo, beginning with the plain language of the text and

interpreting “the words of the statute in light of the purposes Congress sought to

serve.” Been, 495 F.3d at 1227 (internal quotation marks omitted).

Section 202 of the PSA provides: “It shall be unlawful . . . for any live

poultry dealer with respect to live poultry, to: (a) Engage in or use any unfair . . .

practice or device . . . .” 7 U.S.C. § 192. In interpreting this statute, we are

mindful that the PSA is a remedial statute, and thus, it is to be “construed

liberally in accord with its purpose to prevent economic harm to producers and

consumers at the expense of middlemen.” Swift & Co. v. United States, 393 F.2d

247, 253 (7th Cir. 1968). “[T]he primary purpose of the PSA [was] to assure fair

competition and fair trade practices in livestock marketing and in the meatpacking

industry and to safeguard farmers against receiving less than the true market

value of their livestock.” Been, 495 F.3d at 1228 (alterations omitted) (internal

quotation marks omitted).

OK contends that the PSA applies only to unfair practices involving

chickens that have actually hatched. This argument is without merit. As we have

previously recognized, price manipulation in the form of arbitrarily reducing

production may violate the PSA as an unfair practice. See Been, 495 F.3d at

1233–34. And a practice that reduces chick production by incubating fewer eggs,

for example, is a practice “with respect to live poultry” as much as a practice that

reduces chick production by destroying chicks that have already hatched. Both

18
practices result in fewer live chickens being delivered to the Growers to raise and

sell back to OK. Thus, either way, OK is reducing the price it pays its Growers

for live poultry. In light of plain statutory language and the remedial purpose of

the PSA, we reject OK’s strained interpretation of the phrase “with respect to live

poultry.”

Additionally, OK asserts that it cannot be held liable because it delivered

all the chicks that it could produce. Conceivably, this is an argument that OK

was entitled to a new trial based on insufficient evidence to prove that OK

actually reduced production in violation of the PSA. “Where a new trial motion

asserts that the jury verdict is not supported by the evidence, the verdict must

stand unless it is clearly, decidedly, or overwhelmingly against the weight of the

evidence.” Anaeme v. Diagnostek, Inc., 164 F.3d 1275, 1284 (10th Cir. 1999)

(internal quotation marks omitted). We review the evidence “in the light most

favorable to the prevailing party . . . .” Id. Upon review of the record, there was

sufficient evidence to support the verdict.

OK contends that it could not have reduced the chick population because it

always operated its hatcheries at full capacity. But at trial, the Growers’ expert,

Dr. Taylor, testified that his regression analysis indicated “that when [OK’s]

returns are low, then they increase days out between flocks which depresses total

grower pay.” Appellants’ App. at 304. Taylor acknowledged that he did not have

any knowledge of OK’s hatchery capacity, but testified that OK’s production

19
levels could vary and the evidence of days between flocks “implies that

somewhere they’re getting the chicks to put out there.” Appellants’ App. at 358.

Additionally, OK’s president testified that production levels vary depending on

demand. Viewing this evidence in the light most favorably to the Growers, we

conclude that there was sufficient evidence that OK’s production levels varied,

and that OK did not always operate at full capacity.

2. OK’s alleged lack of market power

Next, OK argues that because it only has a 2% share of the national poultry

market, it necessarily lacked the power to raise consumer prices by suppressing

production. OK first raised this argument in its motion for summary judgment,

following remand, and renewed it in its post-trial motion for judgment as a matter

of law. We review de novo the district court’s denial of a motion for judgment as

a matter of law. Rocky Mountain Christian Church v. Bd. of Cnty. Comm’rs, 613

F.3d 1229, 1235 (10th Cir. 2010).

We conclude, after reviewing the trial record, that the district court did not

err in denying OK’s motion for judgment as a matter of law. The Growers’

expert, Taylor, opined that OK’s production practices impacted immediate resale

and national prices. That testimony, notwithstanding OK’s own evidence of its

purported lack of market power, was sufficient in our view both to create a

genuine issue of material fact as to whether OK’s production practices “over time

[were] likely to increase consumer prices for [OK’s] products in comparison to

20
what prices would have been but for the practice,” 6 Aplee. Supp. App. at 412

(jury instructions), and to support the jury’s verdict in favor of the Growers. See

generally FTC v. Indiana Fed’n of Dentists, 476 U.S. 447, 460-61 (1986) (“Since

the purpose of the inquiries into market definition and market power is to

determine whether an arrangement has the potential for genuine adverse effects

on competition, proof of actual detrimental effects . . . can obviate the need for an

inquiry into market power, which is but a surrogate for detrimental effects.”)

(internal quotation marks omitted).

3. Sufficiency of the evidence to support all the theories of liability

OK argues that the general verdict returned by the jury must be overturned

and the case remanded for new trial because the Growers failed to present

sufficient evidence to establish that two of the five challenged practices, i.e.,

OK’s possession of asymmetrical information and OK’s requirements regarding

housing specifications, resulted in consumer injury.

The Growers correctly note that OK has not preserved this issue for appeal.

“To preserve a sufficiency of the evidence claim for appellate review, a party

must move for summary judgment as a matter of law (directed verdict) under

Federal Rule of Civil Procedure 50(a) at the close of the evidence.” United Int’l

6
We reach no conclusion as to whether the district court correctly
instructed the jury that, as to one of the two alternate methods of proof relied on
by the Growers at trial, the Growers were required to prove that OK’s practices
over time were likely to increase consumer prices for OK’s products.

21
Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F.3d 1207, 1228 (10th Cir. 2000).

“Failure to sufficiently raise an issue in a [Rule 50(a)] motion . . . bars appellate

review of that issue.” Miller v. Eby Realty Group LLC, 396 F.3d 1105, 1114

(10th Cir. 2005). We do not require technical precision, but liberally construe the

Rule 50(a) motion, asking whether the moving party adequately notified the

district court of the issues raised. See id.

In the first Rule 50(a) motion, at the end of the Growers’ case, OK’s

arguments focused on the statute of limitations, the statutory meaning of “with

respect to live poultry,” and the theory of liability based on density reductions. 7

Then, OK renewed its motion at the close of all the evidence. At that time, OK

added that there was insufficient evidence regarding the commodity market and

consumer injury, and regarding any decrease in production (arguments similar to

those asserted in its summary judgment motion). Nowhere in the Rule 50(a)

7
At the outset of its arguments, OK’s counsel stated: “we would renew our
motion for summary judgment on the [PSA] . . . .” Appellant’s App. at 423. In
its motion for summary judgment, OK argued, under a heading entitled “THERE
IS NO EVIDENCE THAT O.K.’S CONDUCT WAS LIKELY TO INJURE
COMPETITION IN A RELEVANT MARKET,” Appellant’s App. at 73, that (a)
the majority of the birds processed by OK were dedicated to negotiated, one-year,
fixed-price contracts with buyers like Burger King and Wendy’s, and as a result,
was unable to reduce its production significantly, (b) OK only held a 2% market
share in the United States and was thus unable to control prices or eliminate
competition, and (c) the average retail price per pound for whole chickens at the
time of trial was lower than it was in 2001. Id. at 19-20. Nowhere in its
summary judgment motion did OK assert the sufficiency of evidence argument it
now seeks to assert on appeal.

22
motions did OK discuss or even mention liability based on asymmetrical

information or housing specifications. 8

OK first raised these issues in its post-judgment motion for new trial. 9 The

Growers correctly noted in their response to that motion that, under Tenth Circuit

law, OK waived any right to a new trial on the basis of insufficiency of the

evidence by failing to raise the issues in its Rule 50(a) motions. “A party may

not circumvent Rule 50(a) by raising for the first time in a post-trial motion issues

not raised in an earlier motion for directed verdict.” United Int’l Holdings, 210

F.3d at 1228. The Rule 50(a) motion “is a prerequisite to a post-verdict motion

under Rule 50(b). The renewed motion cannot assert grounds for relief not

asserted in the original motion.” Marshall v. Columbia Lea Reg’l Hosp., 474

F.3d 733, 738 (10th Cir. 2007) (footnote omitted). Because OK did not address

these two arguments in its Rule 50(a) motion, we will not consider them on

8
Nor were these arguments discussed or mentioned in OK’s post-trial
motion for judgment as a matter of law. That motion instead argued that (a) the
Growers failed to produce any evidence that OK sold its products directly to
consumers, and (b) the Growers’ statistical evidence was insufficient to establish
consumer injury.
9
In its motion for new trial, OK complained for the first time that the
Growers had failed to present sufficient evidence to establish that three of the
practices challenged by the Growers (i.e., “density reduction,” “information
sharing,” and “building specification control”) resulted in consumer injury.
Appellant’s App. at 757-762.

23
appeal. 10

4. Admission of Expert Testimony

Next, OK argues that the district court erroneously admitted evidence

presented by the Growers’ expert witness, Dr. Taylor. Under the Federal Rules of

Evidence, the district court must ensure that an expert’s testimony is relevant and

reliable. Daubert v. Merrill Dow Pharm., 509 U.S. 579, 589 (1993). Federal Rule

of Evidence 702 provides:

If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and methods, and (3)
the witness has applied the principles and methods reliably to the facts
of the case.

Generally, there are two separate inquiries in addressing whether a district

court properly admitted an expert’s testimony. First, “we review de novo whether

the district court applied the proper standard and actually performed its

10
Although the district court discussed these arguments on the merits in its
denial of OK’s post-judgment motion for a new trial, we are not bound by that
action. And, even if we were to ignore OK’s procedural default, it would be
unnecessary to address OK’s arguments on the merits because, by challenging the
sufficiency of evidence with respect to only two of the five theories of liability
submitted to the jury, it has effectively conceded that sufficient evidence existed
to support the jury’s general verdict. See Nanodetex Corp. v. Defiant Tech., 349
F. App’x 312, 317-18 (10th Cir. 2009) (“Because the case was tried using a
general verdict, we do not know which theory the jury adopted and consequently
must affirm if legally sufficient evidence exists to support either theory.”).

24
gatekeeper role in the first instance.” Dodge v. Cotter Corp., 328 F.3d 1212,

1223 (10th Cir. 2003). We then review for an abuse of discretion the manner in

which the district court exercises its gatekeeping role in deciding whether to

admit or exclude expert testimony. Id. Because the district court has “broad

discretion” in deciding whether to admit or exclude such testimony, we “will not

disturb the district court’s ruling unless it is arbitrary, capricious, whimsical or

manifestly unreasonable or when we are convinced that the district court made a

clear error of judgment or exceeded the bounds of permissible choice in the

circumstances.” Id. (internal quotation marks omitted).

OK contends that the district court committed several errors in admitting

Taylor’s testimony. OK argues that the district court improperly admitted

testimony regarding the level of asymmetrical information, the calculation of

damages, and causation of consumer injury.

a. Testimony Regarding Asymmetrical Information

Beginning with Taylor’s testimony regarding asymmetrical information,

OK argues that Taylor provided no gauge, test, or data for measuring the severity

of the asymmetry. At trial, Taylor testified that the problems of asymmetrical

information “are much more severe when it’s way out of whack.” Appellants’

App. at 328. When questioned, Taylor agreed that there is no published economic

analysis of what constitutes “way out of whack.” Appellants’ App. at 331–32.

On appeal, OK argues that it was error to admit this “ipse dixit” conclusion.

25
But at trial, OK did not object to this testimony on those grounds. OK’s only

objections to the testimony regarding asymmetrical information involved the

relevance of the testimony. 11 OK did not object on the grounds of reliability

under Rule 702 and Daubert. Because OK did not object to the expert testimony

at trial on the same grounds that they argue on appeal, we review only for plain

error. See McKenzie v. Benton, 388 F.3d 1342, 1350 (10th Cir. 2004) (reviewing

for plain error where party objected to expert testimony on qualification, but

argued relevance on appeal).

To establish plain error, OK must demonstrate “(1) error, (2) that is plain,

which (3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Morales-Fernandez v.

INS, 418 F.3d 1116, 1123–24 (10th Cir. 2005). This final requirement “is an

extraordinary, nearly insurmountable burden.” Phillips v. Hillcrest Med. Ctr., 244

F.3d 790, 802 (10th Cir. 2001). Notably, OK never mentions the plain error

standard in its appellate briefs, nor marshals its arguments accordingly, and “[f]or

that reason alone, we [could] conclude [it] has failed to carry the nearly

11
Although OK filed a motion to exclude Taylor’s testimony, the district
court did not rule on the issue of asymmetrical information, but instead stated that
it would “monitor this testimony closely.” Appellants’ Add. at 34. Thus, it was
OK’s responsibility to make a timely, specific objection to the particular
testimony offered at trial. See Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1066
(9th Cir. 1996) (“[T]he appropriate time to raise Daubert challenges is at trial. By
failing to object to evidence at trial and request a ruling on such an objection, a
party waives the right to raise admissibility issues on appeal.”).

26
insurmountable burden that the plain error standard imposes.” Herrera v. City of

Albuquerque, 589 F.3d 1064, 1075 (10th Cir. 2009) (citations omitted) (internal

quotation marks omitted). Nonetheless, reviewing OK’s arguments, it has not met

its burden to demonstrate plain error.

Reviewing Taylor’s testimony, he did not provide specific data, or a gauge

by which to measure the severity of asymmetrical information, which he

described as “way out of whack.” Even assuming that this was error, OK has not

met the high burden of demonstrating plain error resulting in manifest injustice.

The jury did not need to rely on Taylor’s opinion testimony because the jury had

evidence of the information that was actually provided to the Growers and the

information allegedly withheld. Additionally, the theory regarding asymmetry of

information was only one of five potential theories of liability. Thus, OK has not

shown plain error resulting in manifest injustice in admitting Taylor’s testimony

regarding the asymmetry of information. See McKenzie, 388 F.3d at 1350–51.

b. Testimony Regarding Damages

OK further contends that the district court erroneously admitted evidence

regarding the measurement of damages. In support, OK appears to make two

separate arguments. First, OK suggests that the district court erroneously

instructed the jury on damages. Second, OK argues that Taylor’s testimony on

damages was irrelevant and unreliable.

I. Jury instructions regarding damages

27
 Turning to the jury instructions, we review the jury instructions as a whole

de novo to determine whether the district court “correctly stated the governing

law and provided the jury with an ample understanding of the issues and

applicable standards.” Martinez v. Caterpillar, Inc., 572 F.3d 1129, 1132 (10th

Cir. 2009) (internal quotation marks omitted). We review for abuse of discretion

the district court’s decision to give a particular instruction. Id. “We reverse only

in those cases where we have a substantial doubt whether the jury was fairly

guided in its deliberations.” Id. (alterations omitted) (internal quotation marks

omitted).

The district court instructed the jury on damages in part as follows:

when determining plaintiffs’ lost profits, you should compare the
amount of profit that plaintiffs would have earned in a fair and
competitive market with the amount of profit that plaintiffs have
earned. The difference between these two figures is the amount of
profits the plaintiffs lost because of defendants’ alleged violation of the
PSA.

Appellees’ Supp. App. at 420. Upon reviewing the jury instructions, we conclude

the district court did not err in allowing the jury to calculate damages based on

the profits that the Growers actually received in comparison to profits in a

hypothetical competitive market.

In competitive injury cases, it is often difficult to measure business

damages. See J. Truett Payne Co., Inc. v. Chrysler Motors Corp., 451 U.S. 557,

566 (1981). “The vagaries of the marketplace usually deny us sure knowledge of

28
what plaintiff’s situation would have been in the absence of the defendant’s

antitrust violation.” Id. In a typical antitrust competitive injury case, damages

are calculated “by comparison of profits, prices and values as affected by the

[unlawful act], with what they would have been in its absence under freely

competitive conditions.” See Bigelow v. RKO Radio Pictures, 327 U.S. 251, 264

(1946) (discussing damages in monopolization under the Sherman Act); see also

Nat’l Farmers’ Org., Inc. v. Associated Milk Producers, Inc., 850 F.2d 1286, 1306

(8th Cir. 1988) (“At base, an antitrust plaintiff’s damages should reflect the

difference between its performance in a hypothetical market free of all antitrust

violations and its actual performance in the market infected by the

anticompetitive conduct.”). We find no error in the district court instructing the

jury to compare what the Growers actually received with what they would have

received in a competitive marketplace, absent OK’s violations of the PSA.

ii. Testimony calculating damages

Next, OK argues that the district court erred in admitting Taylor’s

testimony regarding damages. More specifically, OK contends that testimony

regarding competitive pay was irrelevant, and Taylor’s metric for calculating

damages was erroneously admitted.

Beginning with the issue of relevance, OK’s argument is without merit. As

discussed above, the district court appropriately instructed the jury on calculating

damages by comparing profits received and profits in a hypothetical, competitive

29
market. Naturally, testimony regarding underpayment in reference to such a

competitive market would be relevant.

Turning to Taylor’s metric for calculating damages, OK contends that there

were two errors in Taylor’s methodology: (1) Dr. Taylor used cost assumptions in

a model developed for Alabama, not Oklahoma; and (2) the damages model

included the opportunity costs of grower labor.

OK failed to object to Taylor’s use of Alabama figures in the damages

model. In the pretrial motion to exclude Taylor’s testimony, OK mentioned in

passing that Taylor used assumptions from Alabama in the motion to exclude his

testimony, but it did not argue that the use of data from Alabama was unreliable

or improper under Daubert, as is now suggested on appeal. And at trial, OK did

not object to Taylor’s testimony regarding the use of data from Alabama.

Consequently, we review for plain error. McKenzie, 388 F.3d at 1350.

Upon reviewing the record, we conclude that there was no plain error in

admitting the testimony regarding damages using data from Alabama. OK

contends that the use of data from Alabama has previously been criticized. See

Wheeler v. Pilgrim’s Pride, Inc., 246 F.R.D. 532, 542–43 (E.D. Tex. 2007). But

in Wheeler, the district court noted that the expert made no attempt to compare

the Alabama data to the relevant market or members of the class. See id. at 543.

Additionally, the expert in Wheeler conceded that he did not use the best

information available. See id. In the present case, however, Taylor testified that

30
the Alabama data was “the only source of actual information detail on . . . the

out-of-pocket cost for raising broilers.” Appellants’ App. at 340–41. Further,

Taylor also examined the operating costs on an actual OK farm and compared

them to the Alabama data. Taylor testified that the Alabama data he used resulted

in lower damages than if he used the figure from the actual OK farm. If the

calculations are “estimated in any reasonable way” and the expert’s assumptions

“are not without support in the record, the calculations may be upheld . . . .”

Aspen Highlands Skiing Corp. v. Aspen Skiing Co., 738 F.2d 1509, 1526 (10th

Cir. 1984) (emphasis omitted) (internal quotation marks omitted). Accordingly,

OK has not demonstrated plain error.

Next, we turn to OK’s argument that the district court erroneously allowed

Taylor to testify about a damages model that included opportunity costs. OK did

not object to Taylor’s use of opportunity costs in either the motion to exclude

Taylor’s testimony or during trial, and thus, we review only for plain error. See

McKenzie, 388 F.3d at 1350.

OK contends that courts have disapproved of the use of opportunity costs as

a matter of law. But this assertion is an extreme overstatement. Courts refer to

“opportunity costs” in a wide variety of contexts, often using the term in several

different ways. See Fishman v. Estate of Wirtz, 807 F.2d 520, 556 (7th Cir.

1986) (“The economic concept of ‘opportunity cost’ has been used in a variety of

cases as a loose label for any of a number of adjustments to value involving the

31
idea that for every use of one’s resources there is an alternative use, with its own

return, foregone.”). Thus, whether “opportunity costs” are admissible depends on

the context of a given case.

OK has not argued how the use of opportunity costs is improper in the

calculation of damages using a hypothetical competitive market. Instead, OK

relies on two district court cases involving predatory pricing: In re IBM

Peripheral EDP Devices Antitrust Litigation, 459 F. Supp. 626, 631 (N.D. Cal.

1978), and Continental Airlines, Inc. v. American Airlines, Inc., 824 F. Supp.

689, 701 (S.D. Tex. 1993). Neither case, however, is relevant to the

determination of whether it was plain error to use opportunity costs to calculate

damages using a hypothetical competitive market. Therefore, OK has not

established it was error, let alone plain error for the district court to admit

testimony regarding opportunity costs.

c. Testimony regarding consumer injury

OK also argues that Taylor’s testimony on causation of consumer injury

was inadmissible. Specifically, OK argues that Taylor testified at a professionally

impermissible level of confidence, and Taylor erroneously calculated the time

difference between when OK decided to produce chickens and when it obtained a

price.

At trial, Taylor testified that there was a 71% probability that OK’s

production has an impact on the nationwide price. Appellants’ App. at 316. OK

32
does not contest the relevance of the evidence or the method used to calculate the

relationship between OK’s production and nationwide prices, but instead asserts

that the 71% confidence level renders the testimony inadmissible. We need not

resolve the precise confidence level at which such testimony becomes

inadmissible. Even assuming the challenged testimony was inadmissible, it was

harmless in the context of all the evidence produced by the Growers. As noted by

the Growers, they presented four regression analyses demonstrating actual harm

to consumers, and OK does not challenge two of those analyses.

Next, OK argues that the district court erred in admitting Taylor’s

testimony regarding the relationship between OK’s production decisions and

average sales prices. Specifically, OK contends that Taylor mistakenly assumed

that the decision to produce was made on the day OK delivered chicks to the

Growers, rather than when OK chose to hatch the chicks three weeks prior.

Therefore, OK argues that Taylor correlated market prices and production levels

using the wrong time interval.

Again, OK has failed to properly preserve this issue for appeal. At trial,

OK objected to the admission of this evidence, suggesting that there were

reliability questions and asked to voir dire the witness. Appellants’ App. at 307.

The district court refused to allow OK to voir dire Taylor at that time, and instead

told OK that it would have the opportunity to bring out issues of reliability on

cross-examination. But after cross-examining Taylor, OK never moved to

33
exclude Taylor’s testimony or otherwise requested a ruling on the admissibility of

his testimony under Rule 702. Thus, the district court was never asked to make

specific findings on the record analyzing the admissibility of Taylor’s testimony

under Daubert. Accordingly, we review for plain error. See McKenzie, 388 F.3d

at 1350. And, after examining the record on appeal, we are not persuaded the

admission of this evidence, even if erroneous, resulted in a miscarriage of justice.

5. Statute of Limitations

Finally, OK argues that the district court failed to instruct the jury on the

statute of limitations. However, OK did not request such an instruction on the

record during the jury instruction conference. Where a party fails to make a

proper objection to jury instructions, we review for plain error. Greene v.

Safeway Stores, Inc., 210 F.3d 1237, 1245 (10th Cir. 2000). “Under that

standard, we will affirm unless the instructions were patently, plainly erroneous

and prejudicial.” Id. (internal quotation marks omitted).

OK contends that the general verdict allowed the jury to find OK liable

based on its control over building specifications. According to OK, the named

plaintiffs entered into their contracts with OK outside the statute of limitations

period, and thus, OK was entitled to an instruction on the statute of limitations.

Although the district court noted that OK never raised this specific objection on

the record during the jury instruction conference, the district court discussed the

statute of limitations argument in denying OK’s motion for a new trial. The

34
district court concluded that a statute of limitations instruction was not required

because of the continuing harm and speculative damages doctrines.

OK argues that the continuing harm doctrine was rejected in a similar case,

citing Varner v. Peterson Farms, 371 F.3d 1011, 1019 (8th Cir. 2004). But unlike

the plaintiffs in Varner, the Growers did not allege that they were harmed based

on an enforcement of the original contract entered before the statute of

limitations. Rather, the Growers argued, and provided evidence, that the Growers

and OK repeatedly entered new contracts throughout the period of the statute of

limitations, and those contracts demanded new building specifications, which the

Growers alleged violated the PSA. OK offers no other argument regarding the

continuing harm doctrine save for its misplaced reliance on Varner. Therefore,

we conclude that OK has failed to demonstrate that the instructions were patently,

plainly erroneous and prejudicial.

The judgment of the district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe
Chief Judge

35