* The Hon orable H erman J. W eber, Sen ior United States D istric t

Judge for the Southern Distri ct of Ohio, sit ting by designat ion.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0163P (6th C ir.) File Name: 04a01 63p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________ JGR, I NC ., Plaintiff-Appellee/ Cross-App ellant,

v.

T HOMASVILLE F URNITURE I NDUSTRIES , I

NC ., Defenda nt-Appel

lant/ Cross-Appellee. X

- - - -
> , - - - - - - N Nos. 02-3640/3731

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 96-01780—Ann Aldrich, District Judge. Argued: January

29, 2004
Decided and Filed: June 3, 2004

Befor e: MARTI

N and MOO RE, Circui

t Judges; WEBER, Senior District Judge. * 2 JGR, Inc . v. Thoma sville Furniture Industries, Inc. Nos. 02-3640/3731

_________________ COUNSEL

ARGUED: Michelle J . S heehan , REMI NGER & REMIN GER, Cl eve lan d, O hi o, f or A ppe ll ant . Ma rvi n L. Karp, ULMER & BERNE , Cle veland, Ohio, for Appellee. ON BRIE F: M ich elle J. Sheehan, Roy A. Hulme, REMINGER

& REMI NGER, Cleveland, Ohio, fo r Appella nt. Marvin L. Karp, UL MER & BERNE, Cleveland, Ohio, for Appellee.

_________________

OPINION

_________________ BOYCE F. MARTI

N, JR., Circu

it Judge. I

n this diversity breach of contr act act ion, Thoma sville Fu

rniture I ndustrie s, Inc. appeals a $1,500,000 judgment in favor of JGR, Inc., and JGRcros s-ap

peal s the d

enia l of pr e-ju dgme nt interes t. We note at the outset that although it is unclea rwhether “JGR, Inc.” is the actual, formal name of the plaintiff company – as oppo sedto an abbrevi ation – we refer to it as suc

h becau se the parties have done so. For the reasons discussed below, we hold that the district court abused its discretion in permitting
a JGR witness to give lay opinion testimony about JGR’s

lost profitsand los s of bu siness value, and that the improper admission of

this testimony requiresvacature of the damage s award and rema

nd for a new trial so lely on the issue of damage s.
I. FACTUAL AND PROCEDURAL BACKGROUND

The contract at issue in this case is a written agre ement called t he “ Tho mas vi ll e Fu rni tu re In dus tri es, In c

. ‘Thomasv ille Ga ll er y’ Pr ogram” – which we will refer to as the “Galler

y Agreement” – tha

t gover ns the re lationshipNos. 02-3640/3731 JGR, Inc . v. Thoma sville Furniture Industries, Inc. 3

between Thomasville, a furniture manufacturer, and furniture

r etail establish

ments that

Thomasvil l e approv es a s “Thomasv

ille Galleries.” Pursuant

to the Gallery

Agree ment, Thomasvil le Galleries were “expected to” ab ide by c ertain rules and requ

irements , such as maintainin g a hig h quality store, allowing

Thoma svill e to exercise control over personnel training , signage and othe r aspects of the b

usiness, and – most impo rtantly

for purp oses of th

is appea l – displaying

Thomasville products in an area that conformed to detailed specific ations. I

n exchang e, Thoma sville offered its Thomasvil le Galleries as sist ance with interior design, advertisingand research, as well a s a non-exclusive lic ense to
use T homasville trademarks in connection with product promotions.

If a retail er wishe d to be designated a Thomasville Gallery and agree d to the te

rms set forth

in the Gal lery

Agree ment, its representative wou ld sign the last page of the prog ram descriptionand submit it to Thomasv ille for a pproval. This is what Gerald Yosowitz, JGR’s main princ ipal, did on beh alf of JGR in April 1990, and Thomasville approve d J GR as a Thomasvil le Gallery the

following month. The version of the Gallery Ag reement that was in effect at that time provided, among o ther thing s, as follows:
2. Expecta tions of Re tailers . Retailers des ignat ed as Thomasville Galleries will be expected to: (a) Setas id e a ph ysi ca ll y s epara te and distinct area of its selling floor space with a minimum of 5,000 squa re feet for the sole and exclusive purpose and functionof ar ranging, selling, and display ing Thomasvil le furniture pro ducts, inc luding both Thomasvil le wood furniture and Thom a sville upholstery.

OnSeptembe

r 15, 1990 , JGR opened

a furnitu re store in Mentor, Ohio, c al led “Gerald’s,” with a 5,000-square foot 4 JGR, Inc . v. Thoma sville Furniture Industries, Inc. Nos. 02-3640/3731

1 Prior to formin g the JGR busi ness, Yosowitz worke d with Baker at Furniture Land. A ccord ing to Yo sowitz, his relationsh i p with Baker deter iora ted f

oll owing his depart

ure f rom Furnit

ure La nd. display area dev ote d solely to Thomasville products, as specified in the 1990 Gallery Ag reement

. Gerald’s was lo ca ted across the street from another furniture store , called

“ Furniture Lan d, ” w hi ch wa s o wn ed an d o pe ra te d b y an individual named Mike Baker. 1 Despite a promising beginn ing, Gerald’ s eventua lly b egan to

lose money and JGR became unable to

pay Thomasvil le for the

products that i t purchased

for its Gerald’s store. Thomasville provided credit counseli ng serv ices to JGR, b

ut was for

ced to be gin

holding orders until JGR could pay for them.

InMarch 1992, Thomasville revised i ts Galle ry Agree ment. The most significant change, for purposes of this case, wa s the addition o f an “expe ctation” that Thom asville Galleries would “ [d] isplay Thomasville product co vering at leas t 7,500 sq. ft. of selling floor space of which a physically

separate and distinctarea

of no less than

5,000 sq. ft. (the “Gallery ”) is set aside for the so le and exclusive purpose and function of arrangi ng, selling, and displaying Thomasville wood, up ho ls te ry, and other Thomasville home furni s hings products.” (Emphasis added.) A March 10, 19 92, letter writtenby T

homasville

Vice Pre si dent Daniel Grow highlig hts this change and states that Thomasville Galleries “sh ould establish a plan to b e at this ne

w minimum squar e foota ge level of 7,500 sq. ft. by January 1, 1993. Any new Galleries will be at the 7,500 sq. ft. level when they open.”

Yosowi tz, on behalf of JGR, signed and returned t h e revised Gallery Agree ment to Thomasville with handwritten notes on the back. These no tes state , in rele vant par t:

. . . Isign this agr

eement u nder the condition

that all other Thomasvil le deale

rs in my marketin g area are hel dNos. 02-3640/3731 JGR, Inc . v. Thoma sville Furniture Industries, Inc. 5

to the same conditions

. . . . If I correctly

understand the letter from Dan Grow (dated 3/10/92) which spells out Thomasville’s new guidelines (including square foota ge require ments) all Thomasville dea le rs existing or new will be held to the same require ments. If this is in fact the case my c oncearns [sic] have been addressed . . . .

Ina letter dated August 4, William Carrico , a lso a Thomasvil le Vice Preside nt , acknowledged Yosowitz’s notes and stated that Thomasville would “revie w the matter by July 1, 1993,” after letting “ matters settle out.”

Inthe mean

time, in the fall of 1992 Thomasville negotiated with Furniture Land, JGR’s competitor, a different marketing agree ment, calle d the “ Thoma svil le Hom e Furni shin gs Store Agreement.”Pursuant t o this a greement, the name of the Furniture Land

chain wo uld be cha

nged to “Baker’s” and the chain w ould c arry

the Thoma sville line

in seven s tores, including the one across the street from Gerald’s, a s well as ina brand new 10,000 square foot store devoted solely to Thomasvil le products. In Novem ber 1992, pursuant to the Home Furnishi

ngs Ag reemen t, Furnit ure L and changed the
name of all its stores in the Cleveland area to “Baker’ s” and kicked off a “grand re-ope

ning” of the store acrossthe street fromGerald’s. Baker’s adver tised this grand

opening with a circular featuring its new “Thom as ville Gallery” line of furnitur e. JGR alleges that Baker’s display ed only a fe

w isolated pieces of Thoma svil le fur nitu re at i ts gran d open ing. According

to JGR, Bak

er’s emp loy ees urg ed its customers to view the entire line of Thomasville furniture at Gerald’s, but to purchase the items at

Baker’s. Baker’s

customers alleg edly
were handed cards tha

t stated: “Go to Gerald’s. Bring bac k a price and we’ll beat it by five percent.”

The day afte

r the Baker’s grand opening, in light of JGR’s mounting financial problems and debts, Thomasville placed JGR’s credit

on hold and refuse d to proce ss or shipany order s fromGerald’ s until JGR sent ful l pay ment for t hose orde rs. 6 JGR, Inc . v. Thoma sville Furniture Industries, Inc. Nos. 02-3640/3731

2 On July 1, 1996, Th oma sville filed su it in the district court against JGR to coll ect approximate ly $665,000 for furn itu re and ser

vice charges that JGR owed to Tho masville. JGR subse quent ly fil ed suit against Th oma sville in Oh io state court, all eging that Thomasville’ s breach of the 1992 Gall ery Agreeme nt a nd fr audul ent misr epres enta ti on ca us ed J GR to go out of b usiness. T homasvi lle removed that sui t to federal court and fil ed a moti on for

sum m ar y j udg men t o n a ll of JGR’ s c la im s. On September 7, 1999, th e dis tri ct c ourt gran ted Thomas vil le’ s moti on for summary judg men t in its entirety. JG R then filed a m otion fo r
recon siderat ion, arguing that the distr ict court had misi nterpreted the nature of i ts clai m for breachof the 1992 Gallery

Agreement. The distr ict court de nied the moti on and JGR appea led. On appeal , this Cou r t

revers ed and remanded the ca se for furth er pro ceed ings with re spec t to that cl aim. This appeal rel ates s olely to th e proceedings on reman d

con cernin g that br each of co ntract c laim. Ul ti ma te ly, no lo nger abl e to co ntin ue doi ng b usin ess, Gerald’s closed its doors on October 2, 1993.

Alth ough each pa

rty inthis case

has asse rted var ious claim s agains tthe other, 2 the sole claim wi th wh ich we are concerned

in this app eal is JGR’s claim that Thoma sville breached the 1992 Gallery A

greement. The es sen ce of that claim is that Thomasville breached the Agreeme nt by p erm itting Baker’s to sell Thomasville furniture without requiringBaker’s to “[d]isplay Thomasville product covering at least 7,500 sq. ft . of se llin g f lo or space of which a phy sically

separate and distinct area of no less than 5,000 sq. ft. ( the “Ga

llery ”) is set a side for

the sole a

nd exclu siv e purpose and function o f arr anging, selling, and display ing Thomasvil le wood, upholstery , and othe r Thomasv

ille home furni shin gs products .” This claim was the subject of a jury trial featur

ing the t esti mo ny o f several witnesses. JGR presented the only damag es witness, a certifi ed public accountant

and lawye

r named James Gorn

ik. Gornik

testified
as to the amount of lost profits and loss of business value that JGRsuffer

ed as a r esult of T homasvil le’s alleged breach of the 1992 G allery

Agree ment. Thomasville

filed a motion in lim ine to exclude G ornik’s te stimony on the g round tha t itNos. 02-3640/3731 JGR, Inc . v. Thoma sville Furniture Industries, Inc. 7

was properly the subjec

t of expert testimony, not lay opinion testimo ny, bu t that he was not qualified to give expert test im on y. The district court denied Thomasville’s motion, and Gornik proceeded to testify

about projections that he had prepared showing what JGR’s net income would have been in each year f rom 1991 through 2005 and what the net worth and value of the business would have been at the end of ea ch o f those y ears.
The jury determined tha

t Thomasville had, in fact, br eached the 1992 Gallery Ag

reement and that JGR was entitled to a damages award o f $0 for l ost profit s and $1,500,000 for loss of business v alue. Thomasville subseque ntly filed a Ru

le 50 motion for judgment as a matter of law, arguing that

the jury verdict had no ba sis for an

award o f lo ss of

business value. The district court

denied the motion. JGRfiled a motion for pre-judgment

interest pursuant to Ohio Revised Code section 1343.03(A). While the di strict c ourt initially granted the motion and awarded pre-judgment intere st at the rate of 3.73%, Thomasville filed a motionfor reconsideration of that award, which

the district

court granted. On reconsidera tion, the district c ourt cha

nged its origina l ruling and dec lined to award any pre- judgment interest

. Judgment was entered for JGRin the amount

of $1,500,000. Thomasville appealed the districtcourt’s $1,500,000 judgment in favo r o f JGR, and JGRcross-appealed thedenial of its motion for pre-judgment interest

. II. ANALYSIS

A. Testimony of

James Gornik

The primary

issue in thi s caseconcer

ns the adm

issibility of testimony by

JG R witness James Gornik , a cert ified pub lic accountant

and lawye

r who testifie d about the

amount of

lost profitsand

loss of business value that JGR allegedly suffe red
as a result of Thomas

ville’s br each of contrac t. We review a districtco ur t’ s e vi de nt ia ry ruli ngs for abuse of discretion. 8 JGR, Inc . v. Thoma sville Furniture Industries, Inc. Nos. 02-3640/3731

3 The dist

rict court’s apparent assumpti on that Gornik was a “fact

ual witness” who “does [JGR ’s] books” is f alse. In fact , Gornik wa s never an accountant f

or JGR a nd ne ve r d id it s b ook s. Hi s fi rst ex perie nce w ith JG R was inMarch 1999, when he was c ontact ed by JGR’s tr ial counsel forthe purpos e of “put tin g down on pape r what the financia l stateme nts of Ge rald’s Furniture would have looked like had the Thomasville support to the busines s conti nued and had the owners been able to carry through on how they

planned t o operate t

he busin ess. ” Kumho TireCo. v. Carmichael , 526 U.S. 137 (1999); Barnes

v. Owens-Corning Fiberglass Corp. , 201 F.3d 815, 822 ( 6th Cir. 2000). Thomasville argues that the district court abused its discretionin permitting Gornik to testify as a lay witness. JGR, on the other h and, argues that the district court in fact permitte d Gorn ik to testify as an expert witness, not a lay witness, and that

although no formal hearing was conducted pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc.
, 509 U.S. 579 (1993), the district court nevertheless pr

operly de te rm in ed th at he wa s q ua li fi ed to gi ve ex pe rt te st im on y.
The first issue that

we must resolve is whether the district court permitted Gornik to testify as a la y witness or a s an expertwitness. Fortuna

tely , the rec ord is re

pletewith explic it st atements

by t he distric t court ind

icating that Gorn

ik was a lay witness a

nd was pe

rmitted to

testi fy as such. For example, in a collo quy

with counsel regarding Thomasville’s motion to exclu d e Gornik’s testimony, the cour t reasoned: “But I don ’t remember havin g Daubert extended t o a CPA who basical ly

is, in this case, a

factua l witness. He does t

heir books

. ” 3 The following morning, after conducting additional research, the district court confirmed that Gornik would not be characterized as an expert witness and, therefore, “there is
no Daubert

analysis to be done.”

Moreover, the district court explicitly stated: “I’m glad nobod

y i s asking

me to call

this
manan expert . . . I wouldn’t want to have a Daubert hearing on his methodologies.”Nos. 02-3640/3731 JGR, Inc . v. Thoma sville Furniture Industries, Inc. 9

4 Rule 70 2 pro vides:

If scien tif ic, technic al, or o ther sp ecialize d kno wled ge will assist the tri er of

fac t t o under stand th e evi dence or to determi ne a fac t in issue , a witness q ualified a s an ex pert b y know ledge , skill
, experien ce, trai ning, or educati on, may testi fy ther eto in the form of an opinio n or otherw ise, if (1) the testimony is base d upon su ff

ici ent fact s or da ta, (2) the testimo ny is the product of Th us, the record unequivocally indicates that the district court permitted Gornik to testify as a la y wit ness, not an expertwitness, and that no inquiry was made as to Gornik’s qualifi cations to testify as an expert witness. Ther efore, the question to which we now turn is whe ther the district court abused its discretion in permitting Gornik to tes tify as a lay witness. See Unite

d States v. Anderskow , 88 F.3d 245, 249 (3d Cir. 1996) (“we review the admission of . . . opini on testimony under Rul e 701 for a

buse of di scretion

”); Doddy v. Oxy USA, Inc. , 101 F.3d 448, 459 (5th Cir. 1996) (admission of lay testimony

under Rule 701 is reviewed for ab us e of discretion).

A lay witness – i.e., one who “is not testifying as an expert

” – may only

testify as to: opinions or inferences which are (a) rationally

based on the perception of the witness, (b) helpful to a c lear und erst anding of the witness’ testimony or the determination

of a fact in iss ue, and

(c) not based on scientific, techn ical, or oth er spec iali zed k nowle dge within the scope of Rule 702.

F ED

. R. E VID . 701. Subsect ion (c ) was ad ded to this

rule in 2000 in order

to “elimi

na te the risk that the

reliabil ity require ments set forth

in Rule 702will be evad ed thr ough the simple expedient of proff e ring an expert in la

y witness clothing.” F ED

. R. E VID . 701, Advisory Committee Notes for the 2000 A

mendment s. 4 10 JGR, Inc . v. Thoma sville Furniture Industries, Inc. Nos. 02-3640/3731

reliab le princi ples and met hods, and ( 3) the wi tness has appli ed the prin ciples a nd m ethod s reliab ly to the fac ts of the ca se.

F ED

. R. E VID . 702

. The Advisory CommitteeNotes for the 2000 Amen dments further explain tha

t: [M]ost courts hav e permitted the owner or of ficer of a businessto testify to the value or proje cted profits of the business, without the necessity of qualify ing the witness
as an accountant, appraiser, or similar expert. Such opinion testimony

is admitted not because of experience, training or spe ciali zed k nowle dge within the realm of an expert, but because of

the particularized knowledge that the w i tness has by virtue of his or her position in the business. T he amen dment does n ot pu rport to cha nge this analy sis.

Id. (emphasis added) (citation omitted).

The explanation set forth in the Advisory Committee Notes is re flected in the recent Fifth Circuit case of Dijo, Inc. v

. Hi lton Hot els Corp. , which is s triking ly s imilar to the case sub judice

. In Dijo , the Fifth Circuit held that the district court abused it s discr etion in permitting a “a financial consulta nt” to testify as a lay

witness regardi ng the plaintiff company’s

lost profi ts. 351 F.3d 679, 685-87 (5th Cir. 2003). Alth ough the witness was the plaintiff’s “primary contact ” at
a commercial lending facility with which the plaintiff had a businessrelationship, he had not served as an owner or

officer of the plaintiff company. Id. at 685. Additionally, the witness’s “o pi ni on

. . . w as ba se d o n p re li mi na ry i ncom e figures and

other information that he had received from [the plaintiff’s founder],” and his “a pp raisal was not based upon his own independent

knowledge or observations.” Id. at 686.Nos. 02-3640/3731 JGR, Inc . v. Thoma sville Furniture Industries, Inc. 11

5 Go rnik test ifi ed: “Our rol e wa s not to verif y a whole lot of t

hings . . . I only verified them a gainst m y own e xpe rience .” Inconsidering whether the witness wasproperl y permitted to give lay opinion testimony concerning lost profits, t he Fifth Circuit reasoned:

It istelling that DIJO responds . . . not with evidence of [the witne ss]’sinvol

veme nt wit h [the plain tiff ] o r th e Project, butonly emphasizing [his] substantial business experience.

. . Such generic industry experience does not pass Rule 701 scrutiny. [The plaintiff] never attempted to qualify [the witne ss] as an expert; and a lay witness who was never employ

ed by or di rectly involved in a businessis unlikely to hav e the type of first-ha nd knowl edge necessary

to prov ide reliable forecasts of future lost profits. The further removed a lay man is from
a company’s da

y-to-day operat ions, the less li

kely it is that his opinion testimony

will be ad

missible un

der Rule 701.

Id. Thus, in lig

ht of the w

itness’s l ack of “

the requ isite firs thand, personal knowledge” of the company abo ut which he testified, the Fift

h Circuit h eld that the district court a bused its discretionin permitting the witness to give lay opinion testimony under Rule 701. Id. at 686-87.

The same is true in thi s cas e. Like the witness in Dijo , Gornik has never been an owner, offic er or director o f JGR. Ad di ti on al ly, the information upon which he relied in making his calculations of

lost profi ts and loss of busine ss value c ame primaril y fromYosowitz, andGornik admitted that he did not independ ently verify much of that informatio n. 5 Therefore, G ornik had no ba sis upon wh ich to off

er lay opinio n testimony about JGR’s lost profits or loss of business value, and the di stri ct court abused its discretion in admitting that testimony. 12 JGR, Inc . v. Thoma sville Furniture Industries, Inc. Nos. 02-3640/3731

Moreover, the improper admission of Gornik’s testimony affected Thomasville’s substantial rights. See id. at 687. For whatever reason, Gornik was the only witness called by e ither party to testify

as to the issue of

damages, and –

although he
was subject

to cross-examination – Gornik’s testimony about the amount of

JGR’s damages was unchallenged by any other witness. For these reasons, we hold that the improper admission of Gornik’s lay opinion testimony requires vacature of

the jury’s damage award and remand for a new trial solely on the issue of damages. See id. at 687. In light of this holding, we need notconsider

Thomasvil l e’s other arguments concerning the damages award or

JGR’s cross-appeal regarding the denial of pre-judgment

interest. We must, however, consider two additional arguments that Thomasville has raised.

B. Evidence of Alleged Oral Contract

Thomas vi lle’s remaining two arguments conce rn the admission of evidence about an alleged or al contract between JGRand Th omasv ille . JGR had pr eviou sly allege d tha t Thomasvil le orally pro mise d JGR that it wo uld not sel l Thomasvil le furnitur

e to Baker’s. This alleged ora l promise
was the subject of a prior breach of contrac tclaim that is not at issue here. Nevertheless, the district court perm itte d Yosowitz to mention t

his alleg ed oral pro mise in his trial te st im on y, over

Tho masville’s objection. Thomasville later submittedproposed jury interr ogatories that it clai med were necessary to ensure that the jury

did not focus upon the testimony concerning the allege d oral contract, but the district court decline d to submit the interr ogato ries to th e j ur y. Thomasvil le argue s that the a dmis sion of Yosowitz’s testimony about the alleged oral contract wa s irrelevant under Rule 401 and unfairly pr

ejudicial under Rule 403, and that the districtcourt abus ed i ts discre tion in ref

using to s

ubmit Thomasville’s proposed interrogatories to the jury

.Nos. 02-3640/3731 JGR, Inc . v. Thoma sville Furniture Industries, Inc. 13

The district court recognized that the oral promises at issue
were “not part of the [1992 Gallery Agreement],” but admitted some evidence of th e alleged oral contract a s “background

tes tim ony reg arding the relationship between JGRand Thomasville Furniture prior to the 1992 agreement.” The districtcourt cautioned JGR’s counsel not to “dwell” on the evide nce and explicitly

instructe d the jury

that:

the sole issue in this case is wh ether T homasville breached the 19 92 agr ee ment. Should you consider evidence regar

din g writ ten or oral statements or acts of JGR, Thomasville Furniture, or other parties prior to the 1992 agree

ment, con sider it on

ly to the extent t

hat it helps you understa

nd the intentions of JGR and Thomasvil le Furniture w ith regard to that 1992 agree ment.
Based upon our thorough review of the recor d, we conclude that t he district c ourt commi tted no ab

use of dis cretion

in admitting some evidence relating to the alleged oral c ontract for the limited purpose of backgrou nd information, particu larly in light of i ts instruction to the jury, which we must presume was followed.

We also conclude that t

he distric t court did

not abuse

its discretionin declini ng t o submit Thomasville’s proposed interrogatories to the jury. Fede ral Rule of Civil Procedure 4 9(b) permits a trial court to submit interrogatories to a jur y on issues of fact that

are necessary

for a verdict, but the rule does not require the court to do so. It is w ell established that it “is in the [t

rial] court’s discretion

whether to submit written interrogatories in connection with a general verdict.” Portage II v. Bryant Petroleum Corp. , 899 F.2d 1514, 1520 (6th Cir. 1990). In thi s case, t

he distric t court ins tructed

the jury to determine w hether “ Thomasvil le Furni ture bre ached their 1992 agreement by

breaching a represe nt atio n, or under stand ing, that any new Thoma sville dealer would be held to the same square footage requir ements that were being 14 JGR, Inc . v. Thoma sville Furniture Industries, Inc. Nos. 02-3640/3731

imposed on JGR.” This in struction – partic

ularly in combinationwith the court’s other jury instructions – was proper and

served the purposes that

Thomasville’s proposed interrogatories were intended to ser ve.
III. CONCLUSION

For the foregoing

reasons, we AFFI

RM the district court’s judgment in so fa r a s i t r ef

le ct s t he ju ry’ s v er di ct as to li ab il it y, butwe VACATE the jury ’s damages awa rd and REMAND for a new trial solely

on the issue of damages.