JEFFREY BURDICK SR., WANDA BURDICK, and JEFFREY BURDICK JR., Plaintiffs-Appellants,
INTERSTATE POWER AND LIGHT COMPANY, Defendant-Appellee.
from the Iowa District Court for Kossuth County, Nancy L.
plaintiffs appeal the district court's orders granting
the defendant's posttrial motion for judgment
notwithstanding the verdict, or alternatively, a new trial.
REVERSED AND REMANDED.
J. Siegrist of Siegrist & Jones, P.C., Britt, and Thomas
W. Lipps of Peterson & Lipps, Algona, for appellants.
A. Roberts and Dawn M. Gibson of Simmons Perrine Moyer
Bergman PLC, Cedar Rapids, for appellee.
by Vogel, P.J., and Potterfield and Mullins, JJ.
Burdick Sr., Wanda Burdick, and Jeffrey Burdick Jr. appeal
the district court's posttrial order that vacated the
jury's verdict in favor of the Burdicks. The district
court granted Interstate Power & Light Company's
motion for judgment notwithstanding the verdict or,
alternatively, granted its motion for new trial. The Burdicks
assert the district court should not have granted the motions
because there was sufficient evidence introduced at trial to
support the jury's award of damages. Because we agree
there was sufficient evidence of damages from which the jury
could have approximated the Burdicks' lost profits, we
reverse the district court's ruling on Interstate's
Background Facts and Proceedings.
October 2013, the Burdicks filed suit against Interstate
alleging Interstate's electrical system caused damage to
the Burdicks' dairy operation. The Burdicks alleged
Interstate was negligent in its maintenance of the system,
which allowed stray voltage to come into contact with their
dairy herd causing decreased milk production and a reduction
in breeding. The Burdicks also asserted a nuisance claim. The
case proceeded to an eight-day jury trial in December 2015.
The jury returned a verdict in favor of the Burdicks,
concluding Interstate was 80% negligent and assigning 20%
fault to the Burdicks. The jury awarded damages in the amount of
$500, 000. The court entered judgment against Interstate for
$400, 000 ($500, 000 x 80%) on the negligence claim.
Thereafter, Interstate filed a posttrial motion for judgment
notwithstanding the verdict, or in the alternative, for a new
trial. Interstate alleged the Burdicks failed to offer
evidence at trial from which the jury could calculate damages
for lost profits. Alternatively, Interstate asserted it was
entitled to a new trial based on its belief the verdict was
the result of a jury compromise in light of the fact it bore
no relationship to the evidence presented at trial. The
Burdicks resisted the motion asserting the jury could have
reasonably concluded they had no expenses related to the lost
milk production because the jury could have believed the
Burdicks had already absorbed all expenses. The district
court granted Interstate's motion concluding:
Plaintiffs did not present significant evidence of their
anticipated revenues. Instead, they only presented an
estimate of lost milk and a published figure for the average
price of milk per year. There was no record introduced at
trial to support the estimated lost milk production.
Plaintiffs provided no testimony or exhibits which explained
the calculation of the estimated lost milk or average price
of milk. Additionally, Jeffrey Burdick Sr., in testifying on
the loss in milk production, used a published average milk
price, but no actual lost production and no actual price that
Plaintiffs were being paid. There was no explanation as to
how the estimated average price of milk related to
Plaintiffs' actual price during the years in question.
Plaintiffs only alleged that they were supposed to produce a
certain quantity of milk, which quantity was not achieved,
that milk at the time of their injury was, in general, sold
at an average price. Such a presentation fails to provide the
jury with the resources necessary to determine, with a
reasonable degree of certainty, what Plaintiffs' gross
revenues were for the relevant time period.
Perhaps a greater omission was Plaintiffs' lack of
foundation or argument for the jury to determine what the
variable expenses were from the deprivation of milk
production. No testimony or exhibits were provided about the
actual costs Plaintiffs incurred or avoided due to the
alleged change in production. In Plaintiffs' Brief in
Resistance, Plaintiffs argue that it was possible they had no
avoided costs. However, such a contention goes against the
testimony by their own witness-Jeffrey Burdick Sr.-and the
typical operations of a business. If there is less
production, costs associated with the profit from the sale of
the produced goods are typically affected in some way. But
Plaintiffs presented no evidence that would indicate these
added or avoided costs existed. Plaintiffs entirely failed to
address how their alleged loss of milk production affected
milking costs, feeding costs, transportation costs, or the
costs of veterinary services. While Plaintiffs now contend
the evidence presented at trial could be implied toward a
finding that all of these costs were already paid and
therefore unavoided, Plaintiffs testified they paid for the
transportation of their milk 100 miles to a dairy processing
plant, bought some feed, and used veterinary services but
never testified to the specific dollar costs of those
expenses or how lack of milk production affected those costs.
The fact that Plaintiffs produced the majority of their own
feed and supplied their own land and labor does not provide a
basis for a jury to determine Plaintiffs already absorbed all
costs which would typically exist-and which they may have
partially avoided-in the production of milk on a dairy farm.
Plaintiffs seem to argue in their Resistance that they
provided a sufficient basis for a jury determination of
damages based on Jeffrey Burdick Sr.'s testimony of lost
milk. However, as discussed above, the determination of lost
profits consists of the subtraction of variable expenses from
revenues. While lost milk production does inform the
determination of lost revenue, it does not account for the
entirety of the calculation of lost profits. Plaintiffs
failed to provide a sufficient evidentiary basis for the jury
to calculate with any degree of reasonable certainty the
actual amount of Plaintiffs' lost profits resulting from
Defendant's alleged negligence. In making the
determination that Plaintiffs' were entitled to $500, 000
in lost profits, the jury most likely confused lost
production with lost profits. Such a determination was
contrary to the jury instructions on damages under
negligence; therefore, Defendant's Motion for JNOV should
district court also went on to conclude, alternatively,
Interstate was entitled to a new trial based on the fact the
jury's award lacked evidentiary support and indicated
"an unaided and uneducated guess at how much profit the
dairy was likely to realize out of their lost milk production
revenue." The court vacated the judgment entered in