Flex Homes, Inc. v. Ritz-Craft Corp of Michigan, Inc.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0861n.06

No. 10-4399

UNITED STATES COURT OF APPEALS
FILED
FOR THE SIXTH CIRCUIT
Aug 07, 2012
LEONARD GREEN, Clerk
FLEX HOMES, INC., ET AL., )
)
Plaintiffs-Appellants, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE NORTHERN
) DISTRICT OF OHIO
RITZ-CRAFT CORP OF MICHIGAN , INC., ET AL., )
) OPINION
Defendants-Appellees. )
)

BEFORE: GUY and DONALD, Circuit Judges; and O’MEARA, District Judge.1

JOHN C. O’MEARA, District Judge. On February 23, 2007, Flex Homes, Inc. (“Flex”) and

Ingrid and Kenneth Green (“the Greens,” and collectively “Plaintiffs”) filed suit in the Court of

Common Pleas for Geauga County, Ohio alleging that Ritz-Craft Corp of Michigan and Ritz-Craft

Corp of Pennsylvania (“Defendants” or “Ritz-Craft”) improperly manufactured, designed, and

repaired various components of a prefabricated home. Specifically, the complaint alleged claims for:

(1) breach of contract, (2) breach of implied warranty of workmanship, (3) breach of implied

warranties of merchantability and fitness, (4) negligence, (5) products liability, and (6) violations of

the Ohio Consumer Sales Protection Act. Ritz-Craft removed the case. The district court granted,

in part, Defendants’ motion to dismiss and motion for summary judgment. The matter then

1
The Honorable John Corbett O’Meara, United States District Judge for the Eastern District
of Michigan, sitting by designation.

1
proceeded to trial. The jury returned a verdict for the Greens on their claims for breach of implied

warranty of workmanship and products liability. For these claims, the jury found the Greens were

entitled to $12,675.00. Plaintiffs appeal the adverse rulings on their breach of contract claims, the

refusal to admit certain testimony, the refusal to strike certain testimony, the jury award, and the jury

instructions. The Greens also appeal the adverse ruling on their Ohio Consumer Sales Protection

Act claim. For the reasons that follow, we AFFIRM the district court.

FACTUAL AND PROCEDURAL BACKGROUND

Flex is owned by Inga Dollinger. It builds and sells both prefabricated and traditionally

constructed homes. Ingrid Green, Inga’s daughter, is the vice president of Flex. Flex decided to

build a model prefabricated home (“the Model Home”) in an attempt to attract more customers.

Ritz-Craft designs and manufactures the component parts of the prefabricated homes they sell.2 It

ships these component parts to a lot, where a “set-crew”3 assembles them into a house. After

purchasing a lot for the Model Home, Flex had four meetings with Ritz-Craft. During these

meetings, Flex contracted with Ritz-Craft to manufacture the Model Home under the terms of the

Builder Agreement (“the Agreement”). The Greens agreed to pay for the order in an effort to get

better mortgage rates. However, at the time of purchase, it is undisputed that the Model Home was

not intended to be the Greens’ personal residence. Furthermore, at the closing of the contract, the

Greens were not parties to the Agreement.

2
In order to create a prefabricated home, a manufacturer produces the component parts of
the home (i.e. the floors, walls and ceilings) and then ships these parts to the location where the
home is to be built.
3
In this context, the term “set” means the on-site construction of the component parts of a
prefabricated home.

2
 The Agreement provides that “RITZ-CRAFT’S WARRANTY TO THE BUILDER IS AS

REFLECTED IN THE LIMITED WARRANTY ATTACHMENT TO THIS AGREEMENT.” The

Agreement lists a Limited Warranty under the heading “Attachments and Binding Articles.”

Attached to the Agreement was a document, titled “Builder Policy and Procedure Manual,” which

describes a one-year warranty. This document provides that

Ritz-Craft warrants the structural components and operational systems in each home
to the original retail purchaser, when purchased new and given reasonable and
necessary maintenance, to be free from substantial defects in materials or
workmanship.

This warranty extends to the first retail purchaser and its transferee(s).

After contracting with Ritz-Craft, Ingrid procured the necessary documents and prepared for

the home to be set. The set was scheduled to be completed February 17, 2005. Numerous problems

occurred during the construction of the home. Flex did not pay to have any of these issues repaired.

After the construction was complete, the Greens moved into the Model Home despite its defects.

On February 23, 2007, Plaintiffs filed suit in the Court of Common Pleas for Geauga County,

Ohio alleging that Defendants improperly manufactured, designed, and repaired various components

of the Model Home. The complaint alleged claims for: (1) breach of contract, (2) breach of implied

warranty of workmanship, (3) breach of implied warranties of merchantability and fitness, (4)

negligence, (5) products liability, and (6) violations of the Ohio Consumer Sales Protection Act

(“OCSPA”). Ritz-Craft removed the case to the Northern District of Ohio.

On April 12, 2007, Ritz-Craft moved to dismiss some of Plaintiffs’ claims. The district court

granted this motion with respect to the Greens’ claim for breach of contract, Flex’s claim for breach

of implied warranty of workmanship, Plaintiffs’ claims for breach of implied warranties of

3
merchantability and fitness, Flex’s claim of negligence, Flex’s OCSPA claim, and all claims for

punitive damages. The district court denied Ritz-Craft’s motion with respect to the Greens’ breach

of implied warranty of workmanship claim.

On January 15, 2009, Ritz-Craft moved for partial summary judgment. This motion was

granted in part and denied in part. On September 30, 2009, the district court granted the motion with

respect to Flex’s breach of contract claim, part of the Greens’ negligence claim, Flex’s products

liability claim, and the Greens’ OCSPA claim. However, the district court denied Ritz-Craft’s

motion with respect to the Greens’ product liability claims. Thus, prior to trial, all of Flex’s claims

were dismissed.

Subsequently, the district court proceeded to trial on the Greens’ claims of negligence, breach

of implied warranty of workmanship, and products liability. Several witnesses presented testimony

during trial. Cynthia Casto testified that, based on her experience as a real estate appraiser, the

problems in the home impaired its value by $200,000. In order to prove that there were problems

with the electrical systems of the Model Home, the Greens presented the expert testimony of Michael

Thompson (“Thompson”). Thompson submitted a report which detailed his credentials as an

electrician and explained his opinion about the electrical issues with the house. He testified that

electrical repairs would cost $62,000. Ritz-Craft responded by putting on their own master

electrician, William Tegler (“Tegler”). Joseph Nyzen, a structural engineer, alleged that there were

structural problems in the Model Home. The Greens also called on Dale Olson (“Olson”), their

finishing contractor, to explain the types of repairs the home needed and to testify to his estimate of

the cost of those repairs. Olson was permitted to testify to repairs that would cost $14,860.

4
 After the presentation of evidence, the district court requested that each side provide

proposed jury instructions to the court. After reviewing the jury instructions, the district court held

a hearing in regards to the appropriate jury instructions. During this hearing, the Greens objected

to the district court’s refusal of their request for a diminution instruction. Following the hearing, the

district court instructed the jury without the diminution instruction. After deliberating for two days,

the jury returned a verdict in favor of the Greens on three of their claims, and awarded the Greens

$12,675. This timely appeal followed.

ANALYSIS

Plaintiffs claim that the district court made errors which warrant reversal by this court.

Specifically, Plaintiffs allege that the district erred by: (1) dismissing the Green’s breach of contract

claim; (2) granting Defendants’ motion for summary judgment with respect to Flex’s breach of

contract claim; (3) granting summary judgment to Defendants in regards to the Greens’ OCSPA

claim; (4) failing to provide a diminution of value instruction in the jury instructions; (5) preventing

Thompson from testifying about an electrical schematic on re-direct examination; (6) refusing to

admit portions of Olson’s testimony about the cost of repair work done on the model home; (7)

refusing to strike Tegler’s alleged non-responsive testimony; and (8) for entering the jury verdict.

Because neither party objects to the district court’s choice to apply Pennsylvania law to certain

aspects of this case and Ohio law to others, this opinion assumes, without concluding, that this

choice of law analysis is correct.

I. The Greens’ Breach of Contract Claim

The Greens challenge the district court’s dismissal of their breach of contract claim for failing

to state a claim upon which relief can be granted. Whether a complaint sufficiently states a basis for

5
relief is a question of law which is reviewed de novo. Ctr. for Bio-Ethical Reform, Inc. v.

Napolitano, 648 F.3d 365, 369 (6th Cir. 2011) (considering the district court’s decision to grant the

defendant’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)). At this early stage of litigation,

a complaint need only contain “a short and plain statement” showing the claimant is entitled to relief.

Fed. R. Civ. P. 8(a)(2). This requirement has recently been interpreted as demanding that the facts

stated provide a plausible basis for the claims in the complaint. Napolitano, 648 F.3d at 369 (citing

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1951 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007)). A claim is plausible if the facts alleged allow a reasonable inference that the defendant is

liable for the purported misconduct. Id. A dismissal of a complaint may be affirmed on any

reasonable ground, even if the district court invoked other grounds. Ind. State Dist. Counsel of

Laborers & Hod Carriers Pension & Welfare Fund v. Omnicare, Inc., 583 F.3d 935, 942 (6th Cir.

2009). “[W]e have an obligation to enforce a district court's orders if grounds for doing so are

apparent from the record before us.” Wausau Underwriters Ins. Co. v. Vulcan Dev., Inc., 323 F.3d

396, 404 (6th Cir. 2003) (citing Russ' Kwik Car Wash, Inc. v. Marathon Petroleum Co., 772 F.2d

214, 216 (6th Cir.1985)).

The Greens argue that they are third-party intended beneficiaries of the Agreement and,

therefore, the district court erred in dismissing their breach of contract claim. The Greens contend

that the warranty provisions in the attachments to the Agreement provide them with third-party

intended-beneficiaries status under the Agreement. However, breach of contract is a different cause

of action than breach of express warranty. Thus, the Greens ask us to either elide the distinction

between these causes of action or to read into their breach of contract claim a claim for breach of

express warranty.

6
 We decline to eliminate the distinction between the two causes of action out of respect for

the balance that Pennsylvania courts have struck in providing third-party intended-beneficiary status.

In dismissing the Greens case, the district court thoroughly examined the doctrine of third-party

intended-beneficiary status in Pennsylvania and found that non-named third parties should only

receive this status in a narrow class of cases. Flex Homes, Inc. v. Ritz-Craft Corp of Mich., Inc., No.

07cv1005, 2008 WL 746669, at *5 (N.D. Ohio Mar. 18, 2008) [hereinafter Flex I] (collecting cases).

After completing this review, the district court held that the warranty at issue in this case was “not

sufficient to confer the full benefits of third-party beneficiary status to [the Greens], particularly in

light of the principles of Pennsylvania third-party beneficiary law . . . .” Id., at *6. Because the

Greens have not explained a limiting principle to their argument, permitting them to claim third-

party beneficiary status in this case would indicate that all warranty claims should be given this

status. Adding a new type of action to third-party intended-beneficiary status unnecessarily broadens

a class of claims which Pennsylvania courts have kept narrow. See Manor Junior College v. Keller’s

Inc., 507 A.2d 1245, 1247 (Pa. Super. 1986) (explaining that third-party intended-beneficiary status

should be restricted to a “narrow class”). Rather than expanding a class that Pennsylvania courts

have sought to keep narrow, it is appropriate to require a party with an express warranty claim to

plead that cause of action. Thus, we will not ignore the distinction between the two types of claims.

Furthermore, we are not persuaded that this is an appropriate case to read a breach of

warranty claim into a claim for breach of contract. See Superior Kitchen Designs, Inc. v. Valspar

Indus., Inc., 263 F.Supp.2d 140, 148 (D. Mass. 2003) (“While the allegations of the complaint are

construed favorably to the plaintiff, the court will not read causes of action into the complaint which

are not alleged.”). The complaint in this case was submitted by an attorney who is learned in the

7
law. The complaint alleged both a breach of contract claim and a breach of implied warranty claim.

When faced with Defendants’ motion to dismiss, the Greens’ counsel requested permission to submit

documentation of a warranty to bolster Greens’ third-party intended-beneficiary status. Flex I, 2008

WL 746669, at *6 n.7. At this point, counsel could have made a motion to amend the complaint to

allege a breach of express warranty claim. Federal Rule of Civil Procedure 15 provides that the court

should freely grant this motion when justice so requires. However, counsel never took this action.

Due to these decisions, we will not read a breach of express warranty claim into a claim for breach

of contract. Therefore, we affirm the district court’s decision to dismiss the Greens’ breach of

contract claim.

II. Flex’s Breach of Contract Claim

Flex appeals the district court’s decision to grant Defendants’ motion for summary judgment

with respect to Flex’s breach of contract claim. We review a grant of summary judgment de novo,

construing the evidence and drawing all reasonable inferences in favor of the non-moving party.

Hirsch v. CSX Transp., Inc., 656 F.3d 359, 362 (6th Cir. 2011) (citations omitted). To survive a

motion for summary judgment, “‘there must be evidence on which the jury could reasonably find

for the’ non-moving party.” Id. (quoting White v. Baxter Healthcare Corp., 533 F.3d 381, 390 (6th

Cir. 2008) (internal citation omitted)). Thus, if “the record taken as a whole could not lead a rational

trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Id. (quoting

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

In moving for summary judgment against Flex’s contract claim, Defendants only alleged that

Flex could not prove damages. The district court granted Defendants’ motion for summary judgment

because it found that Flex had not suffered any damages, which it must incur to bring a claim for

8
breach of contract under the Agreement. Flex Homes, Inc. v. Ritz-Craft Corp. of Mich., Inc., No.

07cv1005, 2009 WL 3242140, at *9 (N.D. Ohio Sept. 30, 2009) [hereinafter Flex II].

The Agreement is governed by Pennsylvania law. Id., at *8. Under Pennsylvania law, “the

interpretation of the terms of a contract is a question of law for which our standard of review is de

novo, and our scope of review is plenary.” Braun v. Wal-Mart Stores, 24 A.3d 875, 957 (Pa. Super.

2011) (emphasis in original) (quoting McMullen v. Kutz, 985 A.2d 769, 773 (Pa. 2009)). This

interpretation

requires the court to ascertain and give effect to the intent of the contracting parties
as embodied in the written agreement. Courts assume that a contract's language is
chosen carefully and that the parties are mindful of the meaning of the language used.
When a writing is clear and unequivocal, its meaning must be determined by its
contents alone.

Id. (citing Dep’t of Transp. v. Penn. Indus. for the Blind & Handicapped, 886 A.2d 706, 711 (Pa.

Commw. Ct. 2005) (citations and quotation marks omitted)).

Flex claims that the district court erred in granting summary judgment to Ritz-Craft because

there are still uncured defects in the Model Home. Flex argues that the district court gave too much

weight to whether it incurred any expenses with respect to the Model Home. It contends that the

district court ignored the fact that the Model Home was in need of repairs. Flex maintains that

evidence of “the defects [in the Model Home] were identified and quantified in the Olson, Nyzen,

and Thompson reports . . . .” Additionally, Flex maintains that the limitation of liability in the

builders agreement is not a disclaimer as to material defects. Thus, Flex argues that the existence

of defects is sufficient to establish damages arising from its breach of contract claim against Ritz-

Craft.

9
 In presenting this argument, Flex focuses on whether defects existed without explaining why

the district court’s interpretation of the limitation of liability clause is incorrect. The district court

stated that this clause “is an agreed remedy that permits Flex Homes to recover only for damages tied

to the purchase of the pre-fabricated home . . . .” Flex II, 2009 WL 3242140, at *9 (emphasis

added). Subsequently, the district court found that “Flex Homes did not incur any costs in

connection with the purchase of the Model Home . . . .” Id. The district court focused on whether

or not Flex made any payments to Ritz-Craft because it read the contract as limiting Flex’s damages

to the extent it purchased the home. Id. Flex does not directly contest the district court’s

interpretation of the contract, which does not appear to be at odds with the plain language of the

Agreement.4 Because the provision limits the total amount of damages to nothing, Flex has not

demonstrated the existence of damages. Therefore, we affirm the district court’s grant of summary

judgment to Ritz-Craft with respect to Flex’s breach of contract claim.

III. Consumer Transactions Defined by the Ohio Consumer Sales Protection Act

Plaintiffs argue that either the grant of summary judgment to Defendants in regards to the

Greens’ OCSPA claim or the jury instructions were in error because these two decisions are

internally inconsistent. Plaintiffs argue that in granting summary judgment, the district court found

that the transaction was not a “consumer transaction” under OCSPA, but when instructing the jury,

the district court found that the case involved a personal realty transaction. Plaintiffs contend that

all sales which are not consumer transactions must be commercial transactions. Thus, Plaintiffs

argue that these decisions are internally inconsistent.

4
The relevant language reads “RITZ-CRAFT’S MAXIMUM RESPONSIBILITY IN
DAMAGES FOR ANY SALE IS LIMITED TO THE PRICE CHARGED FOR THAT SALE.”

10
 The district court did not err in dismissing the Greens’ OCSPA claim on summary judgment.

The district court provided a thorough explanation of why this transaction fails to fit within the

definition of a “consumer transaction” under Ohio Rev. Code § 1345.01. Flex II, 2009 WL 3242140,

at *11-12. Because we agree with this reasoning, we will briefly reiterate it to explain why we affirm

the district court’s decision. Ohio Rev. Code § 1345.01 defines a “consumer transaction” as “a sale,

lease, assignment, award by chance, or other transfer of an item of goods, a service, a franchise, or

an intangible, to an individual for purposes that are primarily personal, family, or household, or

solicitation to supply any of these things.” Based on a totality of the circumstances, Ohio courts

determine the nature of the transaction at issue “at the time the parties entered into a binding

agreement.” Gugliotta v. Morano, 829 N.E.2d 757, 766 (Ohio Ct. App. 2005). It is undisputed that,

at the time of the transaction, the parties entered into the Agreement for business purposes. Thus,

the district court found that the transaction at issue was not covered under OCSPA. Flex II, 2009

WL 3242140, at *12. Because Plaintiffs fail to rebut this sound reasoning, we affirm the district

court’s decision to grant Defendants’ motion for summary judgment with respect to the Greens’

OCSPA claim.

IV. The Jury Instructions

Plaintiffs make two arguments that the district court erred when it instructed the jury. When

a jury instruction is challenged,

[f]ederal law governs our standard of review in diversity cases. This court reviews
a district court's refusal to give requested jury instructions under an abuse of
discretion standard. We define an abuse of discretion as a definite and firm
conviction that the trial court committed a clear error of judgment. Although trial
courts have broad discretion in framing jury instructions, state law determines the
substance of jury instructions in a diversity action, while federal procedural law

11
 governs questions regarding the propriety of the instructions. The federal court,
sitting in diversity, applies the same law as would be applied by the Ohio state courts.

We review jury instructions as a whole in order to determine whether the instructions
adequately inform the jury of relevant considerations and provide a basis in law for aiding the jury
to reach its decision.

Hisrich v. Volvo Cars of North Am., Inc., 226 F.3d 445, 449 (6th Cir. 2000) (internal citations,

quotation marks, and footnotes omitted). A “reviewing court may reverse a judgment only if the

instructions, viewed as a whole, were confusing, misleading and prejudicial.” United States v.

Lawhorn, No. 10–4616, 2012 WL 987750, at *3 (6th Cir. Mar. 26, 2012) (quoting United States v.

Sheffey, 57 F.3d 1419, 1429 (6th Cir. 1995)); see also Roberts ex rel. Johnson v. Galen of Va., Inc.,

325 F.3d 776, 787 n.3 (6th Cir. 2003) (explaining that the correct statement of this standard uses the

conjunction “and”). Thus, “we will not set aside a jury verdict on the basis of a technically faulty

jury instruction when the error is harmless.” Bridgeport Music, Inc. v. UMG Recordings, Inc., 585

F.3d 267, 274 (6th Cir. 2009) (citing Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 822

(6th Cir.2000)).

The first part of Plaintiffs’ argument is that the district court’s OCSPA holding demonstrates

that the transaction was commercial, and therefore, requires a jury instruction indicating that a proper

measure of damages can be the direct economic loss of Plaintiffs. The basic premise of this

argument is that all sales are either consumer transactions or commercial transactions. Plaintiffs

provide no legal support for this premise. However, there are legal reasons for rejecting Plaintiffs’

premise. Ohio Rev. Code § 1345.01 provides that the definitions it lists are “used in sections

1345.01 to 1345.13 of the Revised Code.” Because this phrase limits the definitions to claims under

OCSPA, it does not necessarily follow that a transaction which fails to fit within the definition of

12
a “consumer transaction” under OCSPA is not a consumer transaction in some other context. Nor

does it make sense to apply the district court’s reasoning, with respect to this definition, to claims

which were not for “goods, a service, a franchise, or an intangible . . . .” Ohio Rev. Code § 1345.01.

Thus, we are not persuaded that the district court made internally inconsistent rulings.

Plaintiffs also argue that the jury instructions were in error because breach of workmanlike

quality and products liability claims are implied warranty claims for which Ohio case law permits

a plaintiff to recover economic damages. Assuming arguendo that Plaintiffs are correct with respect

to this second issue, Plaintiffs have not demonstrated that the failure to provide a diminution

instruction satisfies the prejudice requirement. While the jury was instructed not to consider

diminution in the total damage award, they were permitted to consider it as evidence regarding the

reasonableness of the cost of repairs, and they were instructed to award Plaintiffs the cost of

reasonable repairs.

Plaintiffs claim that the testimony of Cynthia Casto demonstrates that they were prejudiced

by this instruction. She testified that, based on her experience as a real estate appraiser, the problems

in the home impaired its value by $200,000. The jury also heard extensive testimony regarding the

cost of repairing the Model Home. Plaintiffs’ contractor testified that the repairs would cost $14,860

and Plaintiffs’ electrician testified that repairs would cost $62,000. Thus, the jury heard testimony

permitting it to award a total of repair bill $76,860. However, after hearing this and other testimony,

the jury awarded the plaintiffs $12,675.

This result indicates that Plaintiffs were not prejudiced by the instruction. Prejudice exists

if there is a substantial risk that the outcome of the trial was affected. Whitson v. Knox Cnty. Bd. of

Educ., No. 10–6240, 2012 WL 913708, at *4 (6th Cir. Mar. 20, 2012) (citing Stockman, 480 F.3d

13
at 799). If the testimony of Ms. Casto was particularly persuasive and the home was actually

devalued by $200,000, then it is reasonable to expect the jury to award all or substantially close to

the entire repair bill, which was less than half of the claimed lost value. However, the jury awarded

less than one fifth of the repairs. Determining “‘[w]itness credibility is solely within the jury's

province . . . . ’” Lee v. Metro. Gov’t of Nashville & Davidson Cnty., 432 F. App’x 435, 448 (6th

Cir. 2011) (quoting McDonald v. Petree, 409 F.3d 724, 731 (6th Cir. 2005)). The jury award in this

case shows that they did not find Ms. Casto’s testimony credible. While there are situations where

the diminution of value would not be covered by the cost of repairs, the discrepancy between the jury

award and the evidence presented for lost value shows that the case at bar is not one of those

situations. Therefore, Plaintiffs have failed to show a substantial risk that the outcome of the trial

was affected by the district court’s refusal to provide a diminution instruction. For the

aforementioned reasons, we affirm the district court’s refusal to provide the diminution jury

instruction.

V. The Limitation Placed on the Re-Direct of Thompson

Plaintiffs argue that the district court erred in denying Thompson the opportunity to view and

subsequently testify about the schematics which were mentioned by Defendants during cross-

examination. Rulings on the admissibility of evidence are reviewed for abuse of discretion.

Greenwell v. Boatwright, 184 F.3d. 492, 495 (6th Cir. 1999).

During the cross-examination of Thompson, Defendants asked and Thompson answered as

follows:

Q. The bid that you provided is based on -- well, generally speaking, you said
bids are based upon your review of schematic designs, your search of -- or inspection
of the particular site that you'd be preparing a bid for, correct?

14
 A. This is concerning old work. So it's more man hours involved than what a
new construction home would cost to wire.

Q. But, still your methodology of coming up with your bid, you said earlier you
look at a schematic plan, you determine by looking at the plan perhaps how many
receptacles are in the house, how many switches are in the house?

A. Yes.

....

Q. Did you ever ask for a schematic plan for this home?

A. No.

Q. Did you know whether any schematic plans existed for this particular home?

A. No.

On redirect, Plaintiffs sought to have Thompson look at, and testify about, the schematic plan of the

Model Home. Defendants objected. The district court upheld Defendants’ objection because it

found that this testimony was not included in Thompson’s report and because the schematic was not

previously viewed by Thompson.

This decision is in accordance with Rules 26 and 37 of the Federal Rules of Civil Procedure.

Rule 26 provides the disclosure requirements for expert testimony and requires the proffering side

to submit a report which explains the data and exhibits which verify the expert opinion. Fed. R. Civ.

P. 26(a)(2). Rule 37 requires that “[i]f a party fails to provide information . . . as required by Rule

26(a) or (e), the party is not allowed to use that information . . . to supply evidence on a motion, at

a hearing, or at a trial . . . .” Fed. R. Civ. P. 37(c)(1). Because Thompson’s report does not mention

that he ever reviewed the schematic of the Model Home, the district court did not abuse its discretion

15
by refusing to admit this evidence. Therefore, we affirm the decision to prevent Thompson from

testifying about the schematic.

VI. The Testimony of Dale Olson

Plaintiffs argue that the district court abused its discretion when it excluded Olson’s

testimony regarding the cost of repairing the Model Home. Rulings on the admissibility of evidence

are reviewed for abuse of discretion. Greenwell, 184 F.3d at 495. Plaintiffs contend that the district

court excluded Olson’s testimony because of Olson’s use of the word “guesstimate” and a mistaken

belief that Olson’s testimony was purely speculation. Plaintiffs argue that Olson, as an expert, is

qualified to estimate the cost of his work, and it should have been up to the jury to weigh the

evidence.

The district court excluded Olson’s testimony because it found that Olson could not offer his

expert opinion without a proper foundation. When Plaintiffs asked Olson about the cost of repairing

the Model Home, Defendants objected. The district court responded:

There was a motion in limine on [the speculative nature of Olson’s testimony with
respect to the cost of repairs to the Model Home]. When I ruled on it, I said that you
had to very carefully lay the foundation for how he came up with this entire estimate
before you could ask him for a number, because the debate on the motion in limine
was the fact that he sort of used the phrase a "guesstimate" in his deposition when he
said how he came up with his numbers as it relates to how much drywall [he would]
have to remove. And I was very specific when I told you that you had to lay the
foundation. And when yesterday you tried to start out [with Olson’s repair bid], I told
you that's not appropriate . . . .

....

. . . There is always some estimate that has to go in [to a contractor’s bid for work],
but that's very different than pure speculation . . . .

....

16
 . . . He said in his deposition, whether he meant it or not, he used the word
"guesstimate." That is not sufficient for an expert opinion.

Expert testimony is admissible, at the discretion of district court, if the witness is sufficiently

qualified, the testimony is relevant, and the testimony is reliable. In re Scrap Metal Antitrust Litig.,

527 F.3d 517, 528-29 (6th Cir. 2007) (citing Fed. R. Evid. 702). “The task for the district court in

deciding whether an expert's opinion is reliable is not to determine whether it is correct, but rather

to determine whether it rests upon a reliable foundation, as opposed to, say, unsupported

speculation.” Id. at 529-30. From the district court’s explanation, it is clear that the district court

did not find Olson’s opinion to rest on a reliable foundation.

The only evidence Plaintiffs provide to undermine the district court’s determination is

Olson’s deposition testimony indicating that the possibility of removing whole walls or whole

sections of walls was the basis of his estimate. This statement, by itself, is not sufficient to

demonstrate that the district court abused its discretion when in determining that the foundation for

testimony regarding the total cost of the work was not laid. Therefore, we affirm the district court’s

decision to exclude Olson’s testimony.

VII. The Testimony of Tegler

Plaintiffs argue that the district court erred when it failed to strike the allegedly non-

responsive testimony of Tegler.

Plaintiffs fail to explain how this alleged error prejudiced them. A non-constitutional error

is harmless unless it is more probable than not that the error impacted the verdict. Stockman, D.D.S.,

v. Oakcrest Dental Ctr., P.C., 480 F.3d 791, 799 (6th Cir. 2007) (citing United States v. Fountain,

2 F.3d 656, 668 (6th Cir. 1993)) (internal quotation marks omitted). It is appropriate to consider the

17
entire record to determine if the alleged error was likely to prejudice the party. Id. “Prejudice exists

only where there is a substantial risk that the outcome of the trial was affected.” Whitson v. Knox

Cnty. Bd. of Educ., No. 10–6240, 2012 WL 913708, at *4 (6th Cir. Mar. 20, 2012) (citing Stockman,

480 F.3d at 799). Because Plaintiffs fail to show how any part of Tegler’s alleged non-responsive

answers impacted the outcome of the trial, we affirm the district court’s denial of Plaintiffs’ motion

to strike.

VIII. The Jury Award

Plaintiffs argue that the district court abused its discretion when it entered a judgment on the

jury’s verdict. They contend that based on the evidence produced at trial, the award of $12,675 is

beyond the range supportable by proof. Thus, Plaintiffs argue, for the first time, that there is

insufficient evidence to support the jury award.

Plaintiffs waived this claim by failing to make any post-verdict motion below. Plaintiffs

failed to move for a directed verdict under Federal Rule of Civil Procedure 50(a), for a judgment

notwithstanding the verdict under Rule 50(b), or for an altered judgment under Rule 59. Plaintiffs

appear to ask this court to alter or amend the judgment. Fed. R. Civ. P. 59(e). However, because

of the failure to make any post-verdict motion below, Plaintiffs’ argument is barred by Maxwell v.

Dodd, 662 F.3d 418 (6th Cir. 2011), which explained that

appellate courts do not directly review the actions of juries; they review a trial judge's
assessment of the work of the jury through a motion for judgment as a matter of law,
allowing the trial judge who had a ring-side view of the witnesses to make a first cut
on whether one side or another must prevail on the claim. Young v. Langley, 793 F.2d
792, 794 (6th Cir.1986). In the context of a jury trial, the Federal Rules of Civil
Procedure tell parties to speak up at two times if they want the court to resolve the
claim as a matter of law. They must move for judgment as a matter of law before the
claim goes to the jury, see Fed. R. Civ. P. 50(a), and they must renew the motion (or
seek a new trial) after the jury issues its verdict, see Fed. R. Civ. P. 50(b); Fed. R.

18
 Civ. P. 59. In this case, [the appellant] did neither, depriving us of any district court
ruling on the issue (and most essentially of any Rule 50(b) ruling by the judge who
heard the evidence) and preventing us from considering the claim in the first instance
on our own. Unitherm Food Sys., Inc. v. Swift–Eckrich, Inc., 546 U.S. 394, 400–01,
126 S.Ct. 980, 163 L.Ed.2d 974 (2006); Young, 793 F.2d at 794–95.

Id. at 420-21. Because Plaintiffs failed to move for relief under Rules 50 and 59, we affirm the jury

verdict.

CONCLUSION

For the foregoing reasons, we AFFIRM the decisions of the district court.

19