Packgen v. Berry Plastics Corporation

United States Court of Appeals
For the First Circuit

No. 16-1348

PACKGEN,

Plaintiff, Appellee,

v.

BERRY PLASTICS CORPORATION;
COVALENCE SPECIALTY COATINGS, LLC,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. Nancy Torresen, U.S. District Judge]

Before

Torruella, Lynch, and Lipez,
Circuit Judges.

Jonathan M. Dunitz, with whom Taylor R. Neff and Verrill Dana
LLP were on brief, for appellants.
Kurt E. Olafsen, with whom Olafsen & Butterfield LLC was on
brief, for appellee.

February 1, 2017
 TORRUELLA, Circuit Judge. Defendants-Appellants Berry

Plastics Corporation and Covalence Specialty Coatings, LLC

(collectively, "Berry") appeal from a jury's award of $7.2 million

in damages to Plaintiff-Appellee Packgen resulting from the

failure of material Berry had supplied to Packgen. Berry contends

that the district court erred by (1) denying Berry's motion to

exclude Packgen's damages expert, (2) allowing Packgen employees

to testify concerning potential Packgen customers' intent to

purchase Packgen's new product, and (3) failing to correct these

errors by denying Berry's motion for judgment as a matter of law,

a new trial, or to alter or amend the judgment. We affirm.

I. BACKGROUND

A. Factual Background

Packgen manufactures a polypropylene intermediate bulk

container used to transport and store catalyst, a hazardous and

volatile chemical agent used to refine crude oil. No other company

manufactures similar polypropylene containers, but refineries also

lease metal flow bins to transport and store catalyst. In the

mid-2000s, Packgen redesigned its bulk containers. It made the

redesigned container, called the Cougar, out of a laminated fabric.

Berry supplied the laminated fabric and represented that it could

meet Packgen's quality standards.

-2-
 As part of the redesign, Packgen worked with

CRI/Criterion ("CRI"), a catalyst manufacturer and its largest

customer at the time, to modify the new Cougar to meet CRI's

specialized requirements. After a lengthy process, CRI began

purchasing Cougars in October of 2007. From October 2007 to March

2008, CRI purchased 7,567 Cougars for nearly $1.5 million, and it

placed an order for 1,359 Cougars to be delivered in April 2008.

Packgen also began marketing the Cougar to North

American refineries in 2007, focusing on thirty-seven refineries

where CRI supplied catalyst containers. Those refineries were

likely customers because they would experience the Cougars CRI

used, and they were all long distances from their catalyst

suppliers, so they would save significant transport costs using

the lighter, more compact Cougar rather than flow bins. Packgen's

sales manager testified that decision-makers at all thirty-seven

refineries had told her "that they were going to be purchasing the

[C]ougars on their next turnaround cycle." Decision-makers at ten

of the refineries had also told Packgen's president that they "were

willing to purchase and try [Packgen's] containers."

On April 4, 2008, one of the Cougars CRI had purchased

split open while being moved. Over the next weeks, Packgen learned

that other Cougars had also failed, in some cases causing the

catalyst inside to combust, and it began to investigate. Packgen

-3-
determined that the Cougar had failed because some of the laminated

fabric supplied by Berry was faulty, and that it had sold CRI

approximately two thousand Cougars made from the faulty laminated

fabric. Following the incident, CRI cancelled its order of 1,359

Cougars for the month of April, and it never ordered another

Cougar. In addition, the thirty-seven refineries did not order

Cougars as Packgen had anticipated.

B. Procedural History

Packgen filed suit against Berry in Maine Superior

Court, alleging breach of contract, breach of implied and express

warranties, and negligence. Berry removed the case to the United

States District Court for the District of Maine.

Packgen designated Mark G. Filler, a certified public

accountant and certified valuation analyst, as an expert witness

on damages. Berry moved to exclude Filler's opinions and

testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993), and the district court held a two-day Daubert

hearing. On September 12, 2014, the district court issued a forty-

seven-page order denying Berry's motion to exclude. It concluded

that a variety of facts supported Filler's ten-year projections of

Packgen's lost profits from CRI and the thirty-seven refineries,

his assumption that Packgen had a one-in-ten chance each year of

selling Cougars to each of the thirty-seven refineries, and his

-4-
assumption that the refineries did not buy Cougars only because of

the product failure, and it determined that Filler did not

improperly combine forecasting methodologies from both business

valuation and lost profits models.

Prior to trial, Berry filed a motion in limine seeking

to exclude testimony by Packgen employees concerning CRI's and the

thirty-seven refineries' intent to purchase Cougars and why they

decided not to make those purchases. The district court reserved

ruling on the motion for trial. At trial, the district court

ruled that Packgen's president could "testify as to what a

decision-maker at CRI told him about what CRI's intent [to purchase

Cougars] was" but not "why [CRI was] ceasing business." The

district court applied its ruling to subsequent testimony,

allowing Packgen's president and sales manager to testify that

decision-makers at the thirty-seven refineries had expressed their

intent to purchase Cougars but not about why those thirty-seven

refineries subsequently did not make purchases.

After a trial, on November 12, 2015, the jury returned

a verdict against Berry and awarded $7,206,646.30 in damages to

Packgen. On January 29, 2016, the district court denied Berry's

motion for judgment as a matter of law, for a new trial, or to

-5-
alter or amend the judgment.1 The district court entered judgment

against Berry on March 8, 2016, and Berry timely appealed.

II. ANALYSIS

Berry argues on appeal that the district court abused

its discretion by admitting Filler's testimony regarding Packgen's

lost profits from the refineries because (1) he did not establish

that the Cougar failures caused Packgen any lost profits from the

refineries, (2) no facts supported his ten-year loss period, and

(3) no facts supported his one-to-ten odds of selling Cougars to

the refineries. Berry further argues that the district court

abused its discretion by admitting Filler's testimony regarding

damages attributable to lost business from CRI because (1) no facts

supported his assumption that CRI would purchase 1,261 units per

month, (2) no facts supported his ten-year loss period, and (3)

his analysis improperly combined lost-profit and business-

valuation methodologies. In addition, Berry asserts that the

district court erred by allowing Packgen's employees to testify

about CRI's and the refineries' stated intent to purchase Cougars,

because their testimony relied on hearsay, and that it erred by

denying Berry's motion for judgment as a matter of law, for a new

1 The trial judge was not the same as the judge who held the
Daubert hearing.

-6-
trial, or to alter or amend the judgment. We address these

arguments in turn.

A. The District Court Did Not Abuse Its Discretion by Admitting
Filler's Testimony

A district court must "ensur[e] that an expert's

testimony both rests on a reliable foundation and is relevant to

the task at hand." Daubert, 509 U.S. at 597. To determine whether

testimony is sufficiently reliable -- Berry does not challenge the

testimony's relevance -- a district court must determine whether

it is "based on sufficient facts or data," was "the product of

reliable principles and methods," and whether the expert "reliably

applied the principles and methods to the facts of the case."

Fed. R. Evid. 702. "Exactly what is involved in 'reliability'

. . . must be tied to the facts of a particular case." Milward

v. Acuity Specialty Prods. Grp., Inc., 639 F.3d 11, 14-15 (1st

Cir. 2011) (quoting Beaudette v. Louisville Ladder, Inc., 462 F.3d

22, 25-26 (1st Cir. 2006)). "So long as an expert's scientific

testimony rests upon good grounds, based on what is known, it

should be tested by the adversarial process, rather than excluded

for fear that jurors will not be able to handle the scientific

complexities." Id. at 15 (quotation marks and citation omitted)

(quoting Daubert, 509 U.S. at 590).

We review a district court's decision to admit an

expert's testimony for abuse of discretion, unless the district

-7-
court "altogether abdicate[d] its role under Daubert." Smith v.

Jenkins, 732 F.3d 51, 64 (1st Cir. 2013). There is no plausible

argument that the district court abdicated its role here, no matter

how many times Berry's briefs repeat the word "abdicate" or a

variant.2 The district court held a two-day Daubert hearing and

issued a forty-seven page opinion addressing Berry's arguments and

explaining the reasons Filler's testimony had sufficient support.

Our review is only for abuse of discretion.

1. Filler's Testimony Concerning the Thirty-Seven
Refineries

Filler testified that he used simulation software to

calculate Packgen's likely lost profits from sales of Cougars to

the thirty-seven refineries over a ten-year period beginning in

April 2008 and ending in April 2018. Filler's model assumed that

each year "Packgen had a one in ten chance of selling Cougars" to

each refinery. Once a refinery began buying Cougars, "Packgen

w[ould] continue to sell Cougars to [that] refinery" until the end

of the ten-year period. If Packgen had not yet sold to a

particular refinery, the model assumed Packgen would "try one more

time." The model also subtracted "actual mitigating sales to

these refineries" in the first four years of the ten-year period

(which were known) and "expected mitigating sales" for the

2 Nineteen.

-8-
remaining six years. This yielded net lost profits of $1,909,073:

the difference between Packgen's likely net profits if the material

that Berry supplied had not been defective, and its likely net

profits after the Cougars failed.3

a. There Was Sufficient Evidence of Causation to
Support Filler's Testimony

Berry first argues that Filler should have conducted a

market survey to determine which refineries would actually have

purchased Cougars, rather than "assuming" that the thirty-seven

refineries would have purchased Cougars. Berry also asserts that

Filler was required to account for other reasons Cougars failed

(i.e., improper exposure to "freezing and thawing," mishandling,

and punctures from a forklift). There was adequate evidence,

however, that the thirty-seven refineries would purchase Cougars,

including testimony that those refineries would see substantial

savings by using the Cougars, that the refineries' decision-makers

had expressed an intent to purchase Cougars, and that those

refineries would see CRI using the Cougars and be persuaded to try

them.

3 Filler submitted his expert report in 2012, but his loss period
ran through 2018. In estimating Packgen's sales following the
Cougar failures, he therefore used four years of actual sales data
and projected the remaining six years.

-9-
 Moreover, Filler was not required to do a market survey,

as Berry suggests. The existence of other methods of gathering

facts does not mean that the facts he relied on were insufficient.

See Fed. R. Evid. 702 advisory committee's note to 2000 amendment

("The amendment is broad enough to permit testimony that is the

product of competing principles or methods . . . ."). Filler

"based his calculations on facts meeting the[] minimum standards

of relevance and reliability." i4i Ltd. P'ship v. Microsoft

Corp., 598 F.3d 831, 856 (Fed. Cir. 2010) (citing Fed. R. Evid.

702). His testimony alone "did not have to establish the validity

of [a] central, disputed factual claim[]" -- that the defective

Cougars caused the thirty-seven refineries to avoid buying Cougars

-- "to have a factual basis and be admissible." Int'l Adhesive

Coating Co. v. Bolton Emerson Int'l, Inc., 851 F.2d 540, 545 (1st

Cir. 1988). Berry was free to argue to the jury that Filler's

failure to conduct a survey made his opinion less persuasive,4 but

that failure did not make his opinion inadmissible.

Similarly, the fact that a few Cougars failed for reasons

in addition to Berry's defective product does not make Filler's

testimony unreliable. An expert should "adequately account[] for

4 Berry did question Filler's basis for assuming that Berry's
defective material caused refineries not to purchase Cougars, but
it chose not to conduct a market survey of its own and use the
results to impeach Filler's testimony.

-10-
obvious alternative explanations." Fed. R. Evid. 702 advisory

committee's note to 2000 amendments (citing Claar v. Burlington

N.R.R., 29 F.3d 499 (9th Cir. 1994)). Filler did that here,

finding that "there w[ere] no social, environment[al], [or] legal

reasons why all of a sudden [CRI5] would stop buying [Cougars],"

and that the competitive market had not changed. The minor

incidents of Cougar failures that Berry cites are very different

in both type and impact from shipping two thousand defectively-

manufactured Cougars, and Filler was not required to eliminate

every other possible cause. Ambrosini v. Labarraque, 101 F.3d

129, 140 (D.C. Cir. 1996) ("The fact that several possible causes

might remain 'uneliminated' . . . only goes to the accuracy of the

conclusion, not the soundness of the methodology."); see also

Currier v. United Techs. Corp., 393 F.3d 246, 252 (1st Cir. 2004)

(holding that damages expert's "fail[ure] to take into account"

differences in situations between various employees was "a matter

of weight rather than admissibility"); Cummings v. Standard

Register Co., 265 F.3d 56, 65 (1st Cir. 2001) (affirming admission

of damages expert's testimony because, although "using [other]

variables would have resulted in a lower, and perhaps more

5 Although Filler specifically mentioned only CRI, the question
was not specific to CRI, and the potential causes Filler considered
are equally applicable to the refineries.

-11-
accurate, figure . . . whatever shortcomings existed in [the

expert's] calculations went to the weight, not the admissibility,

of the testimony").

b. Sufficient Facts Supported Filler's Ten-Year Loss
Period

Filler's model calculated losses for a ten-year period.

Berry contends that the "only support" for this period "is a

conversation [Filler] had with" Packgen's president. Filler did

discuss a ten-year period with Packgen's president, determining

that it would take five years for the negative effects of the

Cougar failures to "wear off" and another five years for sales to

recover fully to where they would have been absent the failures.

Those discussions do provide some support for Filler's opinion.

See E. Mountain Platform Tennis, Inc. v. Sherwin-Williams Co.,

Inc., 40 F.3d 492, 503 (1st Cir. 1994) (holding that testimony

from plaintiff's employees that "it would take . . . three years

to rebuild the business" supported an award of future lost

profits).

Filler's ten-year period was also supported by other

facts. Filler considered the opinion of Packgen's catalyst expert

that Cougars would save the thirty-seven refineries substantial

costs, Packgen had "an excellent market presence," and catalyst

use would increase until the end of the ten-year period. In

addition, Packgen was the only supplier of intermediate bulk

-12-
containers, and there were few other options for the refineries,

suggesting that few if any other competitors would enter the

market.

Importantly, Filler was not projecting market conditions

for a full ten years. His loss period began when the Cougars

failed in 2008, but the Daubert hearing took place six years later.

In those six years, no major new competitors entered the catalyst

container market, and Cougar sales to the refineries had begun to

recover and "exceed[ed]" Filler's original projections. Actual

profits remained lower than the profits Filler projected if Berry's

material had not failed, however. Accordingly, it was reasonable

to assume that Packgen's lost profits would continue into the

future, perhaps at least four more years.

Taken as a whole, the evidence was more than sufficient

to support Filler's ten-year loss period.

c. Sufficient Facts Supported Filler's Assumption That
One Refinery in Ten Would Begin Buying Cougars Each
Year

Filler's model included an assumption that each year ten

percent of the refineries not yet purchasing Cougars would begin

to do so. Berry characterizes Filler's one-in-ten odds as

"untethered to any facts or data" and again asserts that Filler

should have conducted a market survey.

-13-
 Filler relied on multiple facts in reaching his

conclusion, including that the thirty-seven refineries would see

CRI using Cougars, that Cougars could provide substantial cost

savings to the refineries, and the refineries' expressed interest

in Cougars. Filler also discussed the likely success rate with

Packgen personnel, who thought Packgen's success rate with the

refineries would be "[a] lot higher than ten percent." Filler did

not agree with Packgen's estimates, however, because Packgen's

personnel "had no evidence" to support their estimates, and Filler

understood that there was a lot of "inertia" in the refinery

market.

There are certainly sufficient facts to support an

inference that Packgen would make some sales to the thirty-seven

refineries. The issue is whether those facts provided the minimal

basis necessary to support Filler's assumption that one in ten

refineries would begin purchasing Cougars each year and allow him

to present his calculations to the jury. In allowing Filler to

testify, the district court pointed to those facts and recognized

that Filler had rejected Packgen's much higher estimated success

rate. The district court also rejected Berry's suggestion that

Filler was required to conduct a market survey, finding that Berry

could argue to the jury that Filler's reliance on Packgen's list

of thirty-seven refineries made his opinion unpersuasive.

-14-
 The district court did not abuse its discretion in doing

so. An expert's methodology must be "consistent with standards

of the expert's profession." SMS Sys. Maint. Servs. v. Digital

Equip. Corp., 188 F.3d 11, 25 (1st Cir. 1999). Experts may,

however, make reasonable assumptions that are consistent with the

evidence available to them. See Cummings, 265 F.3d at 65

(affirming the district court's decision to allow a damages expert

to testify where the expert's assumptions were those made by

similar experts "with some frequency").

That is what Filler did. When pressed on cross-

examination, Filler admitted that "[t]here is no empirical data"

on what percentage of the thirty-seven refineries would purchase

Cougars. The one-in-ten odds, however, produced "results that

[Filler] thought were reasonable" because the 13,000 units sold in

year ten were comparable to Packgen's sales to CRI -- an existing

customer before the Cougars began to fail6 -- and produced a fifty-

percent market penetration by year ten.

6 Berry characterizes Filler's testimony that his results "were
reasonable" as "circular reasoning." It is not. As Filler's
testimony shows, his model was reasonable because it produced
volumes that were "comparable to what [Packgen was] currently
selling [to CRI]." Filler "compar[ed] the unknown to an analogous
known experience," a proper methodology. Alaska Rent-A-Car, Inc.
v. Avis Budget Grp., Inc., 738 F.3d 960, 970 (9th Cir. 2013)
(holding that criticisms of an expert's choice of comparator
company and extrapolation from one market to a larger region went
to "the weight of the testimony . . . not its admissibility").

-15-
 Packgen points to facts suggesting that Filler's

assumptions were, in fact, conservative; Packgen's regional sales

manager testified that, based on her discussions with the thirty-

seven refineries, she expected eighty-five to ninety percent of

them to order Cougars. In addition, Packgen's personnel told

Filler that they expected a sales rate that was "[a] lot higher"

than the ten-percent rate he used. Berry is really challenging

Filler's choice of a sales rate, and the district court did not

abuse its discretion in determining that that is an argument

properly made to the jury.

Berry's other arguments concerning the refineries are

not persuasive.

2. Filler's Testimony Concerning CRI

Filler used a "deterministic model" -- which does not

account for future contingencies -- to calculate Packgen's damages

attributable to business lost from CRI. He assumed that what

Packgen was "selling [to CRI] in the six-month period" prior to

the Cougar failures "would have continued." This represented the

period in which CRI purchased the newly-customized Cougars. The

average monthly sales for that period were 1,261 Cougars per month,

and Filler projected that average out for ten years.

Berry argues that the district court abused its

discretion by admitting Filler's opinion because (1) there was no

-16-
factual support for the ten-year loss period Filler used, (2) he

had "no objective evidence that CRI would continue to purchase"

Cougars at the same rate it had in the first six months, and (3)

Filler combined lost-profit and business-valuation methodologies,

creating "an untested, non-peer reviewed model."

Berry's argument about the ten-year loss period with

respect to CRI fails for the same reasons described above with

respect to the refineries. There was sufficient evidence that the

market was unlikely to change over ten years, and it did not, in

fact, change in the six years following the accident and prior to

the Daubert hearing.

There was also sufficient evidence to support Filler's

assumption that CRI would continue to purchase Cougars in at least

the same quantities as it had in the six months prior to the Cougar

failures. CRI had dedicated considerable effort to customizing

the Cougars for its needs, indicating that it found them useful

and was likely to continue to purchase them. In addition, Filler

relied on substantial evidence that the market for catalyst

containers was unlikely to change dramatically and that there were

no other suppliers of intermediate bulk containers. "It is . . .

common practice to estimate lost future profits by examining

profits earned in the comparable past." Atlas Truck Leasing, Inc.

v. First NH Banks, Inc., 808 F.2d 902, 904 (1st Cir. 1987). That

-17-
is precisely what Filler did here. Additional data would have

been helpful, but Berry was able to make that argument to the jury.

Berry's contention that Filler should have considered sales

"dating back to 2003" is misplaced. Sales prior to the six-month

period were of a different product that had not been specifically

tailored to CRI's needs, and so did not represent "the comparable

past." Id.

Berry's assertion that Filler improperly "comingl[ed]"

lost-profit and business-valuation methodologies also fails.

Berry relies entirely on Filler's testimony comparing a lost

profits calculation to the "valu[ation] of a business that was

destroyed" using "an income approach." Berry nowhere ties this

to Filler's actual calculations, however, to explain how they were

flawed or inappropriate. Filler explained in great detail how he

calculated Packgen's lost profits using its likely sales to CRI,

prices, production and capital costs, and other expenses. That

testimony, and the exhibits to Filler's report, make clear that he

calculated lost profits for the ten-year period, and his references

to business valuations were merely an explanatory analogy that did

not affect the admissibility of Filler's opinions.

We find no error in the admission of Filler's testimony

concerning CRI.

-18-
B. The District Court Did Not Abuse Its Discretion by Admitting
Testimony Concerning the Refineries' Intent to Purchase
Cougars

The district court allowed Packgen's president and its

sales manager to testify that decision-makers at the thirty-seven

refineries had told them, prior to the Cougar failures, that they

would purchase Cougars the next time they needed catalyst

containers, 7 over Berry's objection. The district court

determined that the statements, although hearsay, were admissible

as the refineries' then-existing state of mind under Fed. R. Evid.

803(3).

"We review rulings admitting or excluding evidence for

abuse of discretion." Shervin v. Partners Healthcare Sys., Inc.,

804 F.3d 23, 41 (1st Cir. 2015). Rule 803(3) allows the admission

of any "statement of the declarant's then-existing state of mind

(such as motive, intent, or plan)." "To be admissible under this

exception, a declaration, among other things, must mirror a state

of mind, which, in light of all the circumstances, including

proximity in time, is reasonably likely to have been the same

condition existing at the material time." Colasanto v. Life Ins.

Co. of N. Am., 100 F.3d 203, 212 (1st Cir. 1996) (internal

7 Refineries change out their catalyst at regular intervals. It
is primarily during these change-overs that they use containers
such as the Cougar.

-19-
quotation marks omitted). "Because disputes over whether

particular statements come within a state-of-mind exception are

fact sensitive, 'the trial court is in the best position to resolve

them.'" United States v. Rivera-Hernández, 497 F.3d 71, 81 (1st

Cir. 2007) (quoting Colasanto, 100 F.3d at 212).

Out-of-court statements by a customer or employee may be

admissible under Rule 803(3) to show intent or motive. See Catalan

v. GMAC Mortg. Corp., 629 F.3d 676, 694-95 (7th Cir. 2011);

Callahan v. A.E.V., Inc., 182 F.3d 237, 252 (3d Cir. 1999)

(upholding the admission of employees' testimony that customers

"told them that they no longer shopped at the plaintiffs' stores

because of the [defendant's] operations"). In Catalan, a

plaintiff testified that a loan officer "told her that the

plaintiffs' home-equity loan applications would not be approved

until their foreclosure was removed." 629 F.3d at 694. Rule

803(3) applied because "the loan officer was speaking during the

employment relationship concerning matters within the scope of her

employment," and so her statement "describ[ed] the bank's

collective intentions." Id. at 694-95. Here, each statement by

a refinery's decision-maker reflected that refinery's "collective

intention" to purchase Cougars the next time the refinery needed

catalyst containers.

-20-
 Although Packgen's president and sales manager both

attributed the refineries' statements of intent to decision-

makers, Berry contends that "[t]his is not sufficient" because the

decision-makers were not specifically named.8 But the cases Berry

cites do not compel that conclusion. Allen v. Sybase, Inc. is

inapposite because there, the testimony was impermissibly offered

to prove the witness's state of mind, rather than the declarants'.

468 F.3d 642, 660 n.14 (10th Cir. 2006). The testimony in Smith

Fiberglass Prods., Inc. v. Ameron, Inc. was excluded because the

declarant was identified only as "a gentleman" who stopped by a

tradeshow booth, without describing who he was, where he worked,

or whether he had decision-making authority for a potential

customer. 7 F.3d 1327, 1330-31 & n.2 (7th Cir. 1993). Here,

Packgen's witnesses knew the declarants and testified that all

declarants were decision-makers at their respective refineries.

Berry also maintains that there was an insufficient

"temporal connection between the 37 refineries' intent to purchase

and their conversations with" Packgen's president and sales

8 Berry also takes issue with the admission of "the out-of-court
statements of an unnamed person at one refinery to prove the states
of mind of all other refineries." (emphasis omitted). Packgen's
president only testified as to ten refineries, but Packgen's sales
managers testified that all thirty-seven refineries told her "they
were going to order the [C]ougars." Thus, there was evidence as
to all refineries, and the jury was not required to "extrapolate
from these ten refineries to all 37," as Berry asserts.

-21-
manager because the refineries intended to purchase Cougars during

their "next cycle," and refineries' catalyst cycles could vary

from six months to two years. As Berry's own cases explain,

however, Rule 803(3) requires "contemporaneity between the event

that gives rise to the state of mind or intention and the

declarant's expression of that state of mind or intention."

Amerisource Corp. v. RxUSA Int'l Inc., No. 02-CV-2514 (JMA), 2009

WL 235648, at *2 (E.D.N.Y. Jan. 30, 2009); Metro. Enter. Corp. v.

United Techs. Int'l Inc., No. 3:03-cv-01685-JBA, 2006 WL 798870,

at *1 (D. Conn. Feb. 28, 2006) ("[A] statement . . . must be

contemporaneous with the mental state [and] it must be timely such

that the declarant had no time to fabricate."). Here, Berry argues

only that the refineries' expected purchase date was not

contemporaneous to the statements, not their state of mind. That

the refineries would actually purchase at a later date, however,

does not mean that their statements of intent were not

contemporaneous with their mental state.

The district court therefore did not abuse its

discretion in admitting the hearsay testimony under Rule 803(3).

C. Berry's Post-Judgment Motion

Berry's arguments in support of its post-judgment motion

for judgment as a matter of law, a new trial, or to alter or amend

the judgment rely entirely on its claims that the district court

-22-
should have excluded Filler's testimony and the hearsay testimony

concerning the thirty-seven refineries. Because the district

court did not abuse its discretion in admitting that testimony,

and the evidence at trial was the same as that at the Daubert

hearing, it did not err by denying Berry's post-judgment motion.

III. CONCLUSION

For the foregoing reasons, we affirm district court's

judgment.

Affirmed.

-23-