1

The Honorable Ralph R. Erickson, United States District Judge for the District

of North Dakota, sitting by designation.

2

The Honorable Carol E. Jackson, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

Nos. 07-2057/2171

___________

Structural Polymer Group, Limited; *

Structural Polymer Systems, Limited, *

*

Appellees/Cross-Appellants, *

* Appeals from the United States

v. * District Court for the 

* Eastern District of Missouri. 

Zoltek Corporation, *

*

Appellant/Cross-Appellee. * 

___________

Submitted: January 14, 2008

Filed: October 8, 2008

___________

Before COLLOTON and SHEPHERD, Circuit Judges, and ERICKSON,1

 District

Judge.

___________

COLLOTON, Circuit Judge.

A jury awarded Structural Polymer Group and Structural Polymer Systems

(together SP) $36,044,895 in lost profits from Zoltek Corporation for breach of a

requirements contract for the sale of carbon fiber. The district court2

 reduced the
3

SP also raised in its opening brief a challenge to the district court’s denial of

SP’s demand for specific performance of the contract, but SP later withdrew that

portion of the cross-appeal, after terminating the Supply Agreement effective February

29, 2008.

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award to $21,138,518, finding the remainder of the award duplicative. Zoltek appeals

the district court’s denial of its motion for a new trial and motion for judgment as a

matter of law. Structural Polymer cross-appeals the district court’s modification of

the jury’s damages award.3

 We affirm.

I.

Zoltek is a Missouri corporation that manufactures and sells carbon fiber. SP

are British corporations that manufacture a strong, light-weight building material

produced using carbon fiber called “prepreg.” Prepreg is made by weaving carbon

fiber into textile-like sheets and then impregnating the sheets with liquid resin. The

prepreg sheets are then sold to builders who can mold them into different shapes for

a variety of applications. Used in this way, prepreg is a common substitute for

fiberglass. One common application for prepreg is the manufacture of wind energy

turbine blades.

The parties entered into a Supply Agreement in November 2000. Under the

disputed agreement, Zoltek promised to manufacture and sell to SP all of SP’s

requirements between November 6, 2000, and December 31, 2010, for “Large

Filament Count Carbon Fibers (Carbon Fibers) as defined by PANEX 33

specifications,” at “then-current market price.” SP, in turn, promised to “obtain their

total requirements for suitable quality, in the reasonable opinion of [SP], Carbon

Fibers from [Zoltek],” the volume not to exceed “the amount actually purchased by

[SP] in the preceding Contract Year plus one million (1,000,000) pounds.” “Large

Filament Count,” or large-tow carbon fiber, contains 48,000 or more filaments per

bundle. “Small-tow” carbon fiber, by contrast, contains fewer than 48,000 filaments
-3-

per bundle, commonly 24,000 or fewer filaments per bundle. Small-tow is more

expensive to produce, but superior in quality.

When the Supply Agreement was formed, most manufacturers used small-tow

carbon fiber. The purpose of the agreement was to develop a new market for largetow fiber as a less expensive alternative to small-tow fiber in the wind-energy

industry. 

Before April 2002, Zoltek produced a large-tow carbon fiber product called

Panex 33. SP purchased 28,219.17 and 20,943.91 pounds of Panex 33 from Zoltek

under the Supply Agreement in 2000 and 2001, respectively. SP placed an order for

1,763.70 pounds of Panex 33 in 2002, but returned it due to alleged quality defects.

In April 2002, Zoltek stopped manufacturing Panex 33, and started making a largetow carbon fiber product called Panex 35. SP ordered no Panex 33 or 35 in 2003. SP

ordered and received 548,935 pounds of Panex 35 in 2004.

The dispute in this case centers on two orders that SP placed with Zoltek in

2005 and 2006 that were never filled. SP ordered 1,480,138 pounds of Panex 35 in

2005, and claims that it was entitled to 2,480,138 pounds of Panex 35 in 2006.

On February 22, 2005, SP sued Zoltek for breach of contract alleging lost

profits through December 31, 2006, and future lost profits through December 31,

2010. Because the parties disputed whether the Supply Agreement entitled SP to both

Panex 33 and Panex 35, SP’s damages expert made alternative lost profit calculations:

$21,138,518 in then-current lost profits under Count I corresponding to 3,960,276

pounds of Panex 35, and $14,906,377 in then-current lost profits under Count II

corresponding to 3,000,000 pounds of Panex 33. 

On November 29, 2006, a jury awarded SP lost profits under both counts

through December 31, 2006, but declined to award SP future lost profits. The district
-4-

court vacated the award under Count II as duplicative, giving SP a final sum of

$21,138,518. Zoltek filed motions under Federal Rule of Civil Procedure 59(a) for

a new trial, and under Rule 50(b) for judgment as a matter of law, in connection with

both the liability and damages phases of the proceedings, and the district court denied

both motions. Zoltek appeals the district court’s denial of those motions. SP crossappeals the district court’s vacation of the jury’s award under Count II of the

complaint.

II.

We review the district court’s denial of Zoltek’s motion for judgment as a

matter of law de novo to determine whether there is sufficient evidence to support the

verdict. Duty v. Norton Alcoa-Proppants, 293 F.3d 481, 488 (8th Cir. 2002). In

reviewing the sufficiency of the evidence to support the jury’s verdict, we interpret the

record in a light most favorable to the prevailing party, affirming unless no reasonable

juror could have reached the same conclusion. Anderson Marketing, Inc. v. Maple

Chase Co., 241 F.3d 1063, 1065 (8th Cir. 2001). We review the denial of a motion

for a new trial for an abuse of discretion. The Shaw Group, Inc. v. Marcum, 516 F.3d

1061, 1067 (8th Cir. 2008). A new trial motion premised on a dispute about the

strength of the supporting proof should be granted only “if the verdict is against the

weight of the evidence and allowing it to stand would result in a miscarriage of

justice.” Id. (quotation omitted).

Zoltek argues that the district court erred in four ways. First, Zoltek argues that

the district court erred by refusing to allow it to raise two arguments to the jury.

Zoltek sought to urge that the Supply Agreement was void for lack of mutuality of

obligation. The district court concluded that Zoltek’s argument was an affirmative

defense, which Zoltek waived by failing to plead it, and the district court then denied

as untimely Zoltek’s motion to amend its complaint to add a mutuality defense.

Second, the district court ruled that Zoltek failed to make a submissible case that SP
-5-

had abandoned the Supply Agreement. Third, Zoltek argues that the district court

failed to remedy unfairly prejudicial testimony at trial. Fourth, Zoltek argues that the

jury’s damages award to SP was not based on adequate evidence, that the district court

erred by allowing SP to amend its damages calculations twenty-two days before trial,

that SP’s revised damages calculations were inadequate as a matter of law, and that

the district court instructed the jury incorrectly in connection with the damages phase

of the proceedings.

A.

We first consider Zoltek’s objection to the district court’s resolution of

arguments concerning mutuality of obligation. Zoltek urged that the Supply

Agreement was “unenforceable as a requirements contract due to a lack of mutuality,”

which is in essence an argument that SP failed to show that the Supply Agreement was

supported by valid consideration. See Restatement (Second) of Contracts § 79 (1981)

(“If the requirement of consideration is met, there is no additional requirement of . .

. ‘mutuality of obligation.’”); USA Chem, Inc. v. Lewis, 557 S.W.2d 15, 24 (Mo. Ct.

App. 1977); Famous Brands, Inc. v. David Sherman Corp., 814 F.2d 517, 521 (8th

Cir. 1987). We conclude that whether or not Zoltek’s contention should not have been

characterized as an affirmative defense, the district court correctly ruled in the

alternative that the Supply Agreement contained mutuality as a matter of law. 

SP contends that our decision in Overholt Crop Ins. Serv. Co. v. Travis, 941

F.2d 1361, 1368 (8th Cir. 1991), establishes that “lack of consideration” is an

affirmative defense that is waived if not raised in an answer. Overholt held that it was

unnecessary to reach the merits of an argument that certain restrictive covenants in a

contract were “void for lack of consideration,” because the defendants “waived this

affirmative defense by failing to raise it in their answer, see Fed. R. Civ. P. 8(c), and

by failing to identify any relevant exceptions to this general rule.” Id. at 1368. Zoltek

counters with our statement in First Union Nat’l Bank v. Pictet Overseas Trust Corp.,
-6-

477 F.3d 616 (8th Cir. 2007), that whether a contention “is an affirmative defense is

a question of [ ] state law,” id. at 621-22, and with Missouri authority that

distinguishes between “failure of consideration,” which is an affirmative defense

applicable where consideration that once existed becomes worthless or non-existent,

and “lack of consideration,” which is an element of the claim that cannot be waived

through failure to plead. Ennis v. McLaggan, 608 S.W.2d 557, 561 (Mo. Ct. App.

1980); MFA Inc. v. Dettler, 817 S.W.2d 658, 663 (Mo. Ct. App. 1991). 

Assuming for the sake of argument that Zoltek’s argument regarding lack of

consideration need not be pleaded as an affirmative defense, we agree with the district

court that the Supply Agreement was supported by adequate consideration as a matter

of law. Under Missouri law, “whether consideration is sufficient to establish a

contract is normally a question of law for the court and not a question of fact for the

jury.” Allison v. Agribank, FCB, 949 S.W.2d 182, 188 (Mo. Ct. App. 1997). Missouri

law long has followed a rule that “[w]hen a party relies upon a writing or a number

of writings to establish a contract, it is unquestionably the province of the court to

determine from the writing or writings whether or not a contract was entered into.”

Nelson v. Cal Hirsch & Sons’ Iron & Rail Co., 77 S.W. 590, 594 (Mo. Ct. App. 1903).

Zoltek advances three reasons why the contract lacked mutuality of obligation.

All three are based on an allegation that SP’s requirements under the agreement are

“hopelessly manipulable” and determined by SP’s subjective preferences, rather than

by objective criteria outside of SP’s control. Specifically, Zoltek argues that “SP

could at all times order or not order Zoltek fiber as it wanted” because (1) SP had zero

requirements for large-tow fiber when the contract was formed, (2) the price

protection clause gave SP the option “to purchase carbon fibers from other producers”

whenever SP wanted to, and (3) SP was free to buy small-tow fiber, which Zoltek

alleges is “interchangeable” with large-tow fiber, in place of large-tow whenever it

pleased.
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First, we disagree with Zoltek that the Supply Agreement lacks mutuality if SP

had zero requirements for large-tow fiber when the contract was formed. A duty of

good faith is implied in requirements contracts under Missouri law, see Mo. Rev. Stat.

§ 400.2-306(1) (1994); Home Shopping Club, Inc. v. Roberts Broad. Co., 989 S.W.2d

174, 179 (Mo. Ct. App. 1998), and this “implied obligation of good faith is enough

to avoid finding a contract null and void due to an illusory promise.” Magruder

Quarry & Co., v. Briscoe, 83 S.W.3d 647, 650-51 (Mo. Ct. App. 2002); see also

National Refining Co. v. Cox, 57 S.W.2d 778, 781 (Mo. Ct. App. 1933). The Supply

Agreement bound SP to order product from Zoltek in good faith, and if SP failed to

purchase anything from Zoltek during the term of the agreement, then the contract

allowed Zoltek to allege that SP acted in bad faith by failing to make purchases. An

assertion of bad faith, however, is an argument that SP breached the agreement, not

that the agreement lacked mutuality or consideration in the first place. The district

court’s ruling on Zoltek’s proposed defense did not foreclose it from arguing to the

jury that SP breached the agreement.

Second, we disagree with Zoltek that the price protection clause in the contract

made SP’s obligation illusory. The price protection clause gave Zoltek a right of first

refusal to sell large-tow carbon fiber to SP for the same price as offered by a third

party seller. If Zoltek offered to match the price offered by another supplier, then SP

was obligated to purchase from Zoltek. We think the Missouri courts are likely to

agree with the observation in a leading treatise that this mechanism does not render

the contract illusory:

The seller may not promise to meet such prices, but the seller may be

given the option of doing so. If the seller meets such prices, the buyer

must buy of the seller or not at all. If the seller does not meet such

prices, the buyer has the privilege of buying elsewhere. Such promises

are not illusory and the contract is valid.

Arthur Linton Corbin, et al., 2-6 Corbin on Contracts § 6.8.
-8-

Zoltek’s authorities do not persuade us to the contrary. They demonstrate only

that if SP had an unfettered option to purchase from another supplier during the term

of the contract, then this option would destroy the exclusivity of the arrangement, and

demonstrate lack of consideration. E.g., In re Modern Dairy of Champaign, Inc., 171

F.3d 1106, 1108 (7th Cir. 1999); Harvey v. Fearless Farris Wholesale, Inc., 589 F.2d

451, 459 (9th Cir. 1978); Loizeaux Builders Supply Co. v. Donald B. Ludwig Co., 366

A.2d 721, 724 (N.J. Super. Ct. Law Div. 1976); Propane Indus., Inc. v. General

Motors Corp., 429 F. Supp. 214, 221 (W.D. Mo. 1977). The inclusion in the Supply

Agreement of a right of first refusal for Zoltek to retain its exclusive right to supply

SP, so long as it matched a market price offered by another supplier, is sufficient to

create mutuality of obligation and consideration.

Third, we do not agree with Zoltek that if small-tow and large-tow fiber are

“interchangeable,” then the Supply Agreement lacked mutuality. There was a good

deal of evidence at trial that small-tow and large-tow fiber are distinct products, with

different qualities and applications. But assuming for the sake of argument that a jury

could find that small-tow and large-tow fibers are in fact “interchangeable,” as Zoltek

contends, the authorities cited by Zoltek do not establish that the Supply Agreement

is void for lack of mutuality. These cases illustrate, rather, that when a buyer

contracts to purchase its requirements for a product from a particular seller, but then

– without a “good faith” basis to do so – purchases an interchangeable product from

a third party instead, the buyer may have breached the requirements contract. E.g.,

Fike Corp. v. Great Lakes Chemical Corp., 332 F.3d 520, 524 (8th Cir. 2003); Empire

Gas Corp. v. American Bakeries Co., 840 F.2d 1333, 1339-41 (7th Cir. 1988);

Loudenback Fertilizer Co. v. Tenn. Phosphate Co., 121 F. 298, 303 (6th Cir. 1903).

Zoltek was free to argue on this basis that SP’s purchase of small-tow fiber from

parties other than Zoltek was a breach of the agreement to purchase large-tow fiber

exclusively from Zoltek, but the jury found that SP performed its obligations under

the contract. SP’s obligation to purchase in good faith all of its requirements for
4

In its order denying Zoltek’s motion for a new trial, the district court

reaffirmed its ruling that Zoltek “had not made a submissible case that the parties

mutually abandoned the Supply Agreement,” (R. Doc. 430, at 13), presumably

because it believed that Zoltek had argued only that SP had abandoned the agreement.

-9-

large-tow fiber exclusively from Zoltek was sufficient consideration to make the

contract valid.

For these reasons, we agree with the district court’s alternative holding that “on

the face of the agreement, there is mutuality of obligation and, therefore,

consideration.” Therefore, any error in characterizing lack of consideration as an

affirmative defense or in denying Zoltek’s motion to amend its complaint did not

prejudice Zoltek.

B.

Zoltek next contends that the district court erred by refusing to instruct the jury

on Zoltek’s theory that SP had abandoned the Supply Agreement. Zoltek asked the

court to give an instruction that the jury’s verdict must be for Zoltek if “the parties,

by their conduct, treated the 2000 Supply Agreement as if it were no longer in effect,

and thereby abandoned the 2000 Supply Agreement.” (Zoltek App. 425-26). The

district court refused the proposed instruction, and later stood by its decision in posttrial orders. In denying Zoltek’s motion for judgment as a matter of law, the court

explained that Zoltek “argued in its trial brief that plaintiffs abandoned the

agreement,” that Zoltek argued “for the first time” in its post-trial motion that “the

parties mutually abandoned the 2000 Supply Agreement.” The court ruled that it

would “not address an argument raised for the first time in a post-trial motion.” (R.

Doc. 431, at 4).4

Under Missouri law, whether abandonment is an issue for the court or the jury

depends on the nature of the argument advanced by the party claiming abandonment.
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“When an abandonment by one party to a contract is predicated of certain specific

acts, or one given act, it is proper for the court to declare whether such act or acts

constitute an abandonment.” Chouteau v. Jupiter Iron Works, 83 Mo. 73, 82 (1884)

(Chouteau I). Thus, it was error for the trial court in Henry v. Bassett, 75 Mo. 89

(1881), to submit to a jury the question whether a contract was abandoned or not, id.

at 95, where “no mutual agreement of abandonment was alleged,” but it was “charged

that the plaintiff, Henry, had abandoned the contract” by taking certain specific acts.

Chouteau I, 83 Mo. at 82. In that circumstance, the trial court should have declared

whether the specified acts of the plaintiff were sufficient to constitute an

abandonment. Henry, 75 Mo. at 95.

By contrast, “where a mutual agreement to abandon is relied upon, it may be

proved by an express agreement to that effect, or by circumstances which warrant the

inference, that the parties mutually agreed to abandon it.” Chouteau I, 83 Mo. at 82.

If certain acts by one party are insufficient by themselves to constitute abandonment,

then the jury should be so instructed, and the failure to do so is reversible error, id. at

83-84, but the question of mutual abandonment should be submitted to a jury, if the

evidence on the whole is sufficient to support a finding of abandonment. Chouteau

v. Jupiter Iron-Works, 7 S.W. 467, 470 (Mo. 1887) (Chouteau II); see Bacon v. Boss,

290 S.W.2d 207, 210 (Mo. 1956) (citing Chouteau II). To be proved under Missouri

law, a mutual abandonment “must be demonstrated by positive and unequivocal acts

and conduct which are inconsistent with a mutual intention to be further bound by the

contract.” Waddington v. Wick, 652 S.W.2d 147, 150 (Mo. Ct. App. 1983); see

O’Brien & Gere Technical Serv., Inc. v. Fru-Con/Fluor Daniel Joint Venture, 380

F.3d 447, 455 (8th Cir. 2004) (Missouri law).

In the district court, Zoltek argued that SP abandoned the Supply Agreement

when it purchased no carbon fiber from Zoltek between February 2002 and early

2004. We agree with the district court that the absence of orders by SP, even over a

period of more than two years, is insufficient to demonstrate a mutual abandonment
-11-

of the Supply Agreement. A buyer under a requirements contract may, consistent with

the contract, reduce its requirements even to zero, as long as the buyer is acting in

good faith. See U.C.C. § 2-306 cmt. 2 (2004) (“Reasonable elasticity in the

requirements is expressly envisaged by this section and good faith variations from

prior requirements are permitted even when the variation may be such as to result in

discontinuance.”). That a buyer does so, therefore, is not a positive and unequivocal

act demonstrating abandonment, and the district court was correct to conclude that

SP’s acts did not constitute an abandonment. The jury, moreover, found that SP

performed its obligations under the Supply Agreement, thus rejecting any suggestion

that SP’s failure to order carbon fiber in 2003 and 2004 was a breach of the contract,

much less an abandonment.

On appeal, Zoltek contends that a “Supply/Purchase Agreement” for Panex 35,

signed by the parties in April 2004, superseded the 2000 Supply Agreement and

demonstrated a mutual intent of the parties to abandon the 2000 contract. This

argument, however, was not presented in the district court, and we therefore decline

to consider it. Prior to the jury’s verdict, Zoltek never cited the 2004 contract as

evidence of mutual abandonment. Zoltek argued instead that the 2004 agreement for

Panex 35 showed that the 2000 Supply Agreement did not include Panex 35. (T. Tr.

2300-02). The district court, therefore, correctly observed that Zoltek advanced a

contention of mutual abandonment for the first time in its post-trial motions. The

court properly declined to instruct the jury on abandonment based on the arguments

then presented, and Zoltek’s subsequent reliance on the 2004 contract comes too late

to support a conclusion that the district court’s instructions were erroneous.

C.

Zoltek next contends that the district court admitted irrelevant and unfairly

prejudicial evidence at trial. We review the district court’s evidentiary decisions for

abuse of discretion. Hoselton v. Metz Baking Co., 48 F.3d 1056, 1059 (8th Cir. 1995).
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Zoltek focuses on SP’s use of a statement made by Zoltek’s attorney, Alan Kohn, at

a preliminary injunction hearing. In opposing SP’s motion for an injunction that

would have required Zoltek to provide SP with Panex 35, Kohn stated: “[T]hey have

no contract for Panex 35. All they have is some old Panex 33 contract which [Zoltek]

is ready, willing and able to perform.” (Zoltek App. 694). In later proceedings, SP

quoted Kohn’s statement, over Zoltek’s repeated objections, and argued that it was an

admission by Zoltek that the Supply Agreement entitled SP at least to a supply of

Panex 33. Zoltek contends that the Kohn statement was taken out of context and used

to mislead the jury. 

The district court allowed SP to quote the Kohn statement, but also gave Zoltek

an opportunity to present evidence to place the statement in what Zoltek argued was

the proper context. Zoltek’s CEO testified that the quotation from Kohn was a

“mischaracterization of what he said,” and that “[i]n balance,” what Kohn said was

“reasonable.” He testified that Kohn meant that “there was a failed or an old contract

which [Zoltek] would be ready, willing, and able to perform against if it [had not

been] breached by multiple breaches,” but that Kohn’s “unfortunate single statement

by itself [ ] is not representative of what should have [been] said.” (T. Tr. 1941)

(emphasis added). 

A statement by a party’s attorney can be admissible as an admission by a party

opponent if it is relevant. Harris v. Steelweld Equip. Co., 869 F.2d 396, 403 (8th Cir.

1989). Given the context in which Kohn made his statement, the district court

concluded that Kohn’s statement was relevant as an admission that Zoltek was willing

to perform under the 2000 Supply Agreement by producing Panex 33 to SP:

There was no misinterpretation. I understood exactly what he said to me

at that hearing. . . . So you can characterize it any number of ways that

you want to. But when I left that hearing, I thought that Panex 33 was

going to be supplied to the plaintiffs but not 35, as they had asked for

now, that was my impression; and I think it was a reasonable impression
-13-

and a reasonable conclusion to draw, based on what was said during that

hearing. 

(T. Tr. 59-60). 

The court’s conclusion that Kohn’s statement was relevant on this basis was not

an abuse of discretion. Although the specific issue presented in the preliminary

injunction hearing was whether Zoltek was required to provide Panex 35, Kohn relied

on Zoltek’s asserted willingness to provide Panex 33 in an effort to persuade the court

to deny the motion. Having made the statement in an effort to gain advantage in the

litigation, we do not think Zoltek can establish that the district court abused its

discretion by permitting SP to invoke counsel’s statement as a potential admission.

The district court adequately guarded against any unfair prejudice by permitting

Zoltek’s CEO to place Kohn’s statement in what Zoltek believed to be the proper

context, and to offer a mitigating explanation for Kohn’s comment.

Kohn’s argument is different from the attorney statement that was held to be

irrelevant and inadmissible in Schneider v. Lockheed Aircraft Corp., 658 F.2d 835,

843 (D.C. Cir. 1981). In that case, the purported “admission” was made in the context

of litigation involving a defendant’s third-party complaint for indemnity and

contribution. The disputed statement by counsel was prefaced with a caveat that the

allegations at issue were “assumed to be true” for purposes of a motion to dismiss the

third-party complaint. The court in Schneider held that third-party pleadings were

excepted from “the general rule of admissibility,” because “[t]he goals of efficient

federal procedure would be frustrated if hypothetical pleadings from third-party

proceedings could be introduced into evidence.” Id. at 843. The court reasoned that

the “purely contingent statements” concerning the third-party complaint were

irrelevant to the issues in the underlying lawsuit. The statement by Zoltek’s counsel,

of course, was not made in the context of a third-party pleading, and it was not the sort

of hypothetical assumption involved in a defendant’s third-party complaint for
5

Zoltek argues that the alleged error in admitting Kohn’s statement was

“compounded” by a statement of Paul Lyon, SP’s Group Purchasing Manager, that

“[t]here was a judgment from this court, I believe that said Zoltek had to supply Panex

33.” Zoltek says that Lyon mischaracterized the result of the preliminary injunction

hearing. The district court sustained Zoltek’s objection to Lyon’s testimony, and

instructed the jury to disregard the statement. Zoltek asked the district court also to

give a curative instruction “at the time the instructions are read to the jury that the

Court made no merits determination on either Panex 33 or Panex 35 at the time of the

injunction hearing.” Zoltek argues on appeal that “the District Court flatly refused to

give any curative instruction, and simply told the jury to disregard the statement.”

The district court, however, did instruct the jury before deliberations that “[a]ny

testimony that I struck from the record or told you to disregard is not evidence and

must not be considered.” This instruction, together with the court’s action at the time

of the objection, was sufficient to cure any prejudice that might have been caused by

the testimony. Harrison v. Purdy Bros. Trucking Co., 312 F.3d 346, 353 (8th Cir.

2002); Lockley v. Deere & Co., 933 F.2d 1378, 1389 (8th Cir. 1991). To the extent

Zoltek asserts that the district court erred by failing to give the jury a more specific

instruction before deliberations, we conclude that there was no abuse of discretion. 

-14-

contribution and indemnity. We therefore conclude that Schneider is distinguishable,

and that the district court’s ruling was not reversible error.5

D.

1.

Zoltek argues that the jury’s damages award to SP was based on impermissible

speculation and other improper grounds. Zoltek contends that SP’s damages

calculations were based only on summaries of lost sales provided by SP management,

conversations with SP management, and projected sales from SP budgets, and that

none of these sources were sufficiently reliable to support the jury’s verdict. 
-15-

We apply state law to evaluate whether a jury’s damage award is adequately

supported by the record. Tipton v. Mill Creek Gravel, Inc., 373 F.3d 913, 918 (8th

Cir. 2004) (Missouri law). Under Missouri law, “[l]ost profits related to a breach

preventing performance are recoverable provided the loss is the natural and proximate

result of the breach, is ascertainable with reasonable certainty, is not speculative or

conjectural, and was within the contemplation of the parties when the contract was

made.” Farmer’s Electric Co-op., Inc. v. Missouri Dep’t of Corrections, 59 S.W.3d

520, 522 (Mo. 2001).

Under Federal Rule of Evidence 703, “an expert may rely on otherwise

inadmissible hearsay in forming [her] opinion if the facts and data upon which [she]

relies are of a type reasonably relied upon by experts in the field.” Arkwright Mut.

Ins. Co. v. Gwinner Oil, Inc., 125 F.3d 1176, 1182 (8th Cir. 1997). The expert’s

opinion should be excluded only if it is “so fundamentally unsupported that it cannot

help the factfinder.” South Cent. Petroleum, Inc. v. Long Bros. Oil Co., 974 F.2d

1015, 1019 (8th Cir. 1992) (internal quotation omitted). As a rule, questions

regarding the factual underpinnings of the expert’s opinion affect the weight and

credibility of her testimony, not its admissibility. Id. We have said that “[o]nce

expert testimony has been admitted, the rules of evidence then place the full burden

of exploration of facts and assumptions underlying the testimony of an expert witness

squarely on the shoulders of opposing counsel’s cross-examination.” Brennan v.

Reinhart Inst’l Foods, 211 F.3d 449, 451 (8th Cir. 2000) (internal quotation omitted).

We conclude that the jury’s award in this case was adequately supported by the

record. SP’s damages expert, Donna Smith, calculated SP’s lost profits based

primarily on a document created by SP’s then-Managing Director called “Summary

of Vestas and Gamesa Lost Sales,” budget figures kept in the ordinary course of

business by SP, conversations with SP management, deposition testimony of Zoltek

personnel, and Zoltek’s annual reports and investor presentations. Smith testified that

the method and sources she used to calculate SP’s lost profits was “generally accepted
-16-

by experts in this field.” Zoltek had an opportunity to challenge Smith’s assertion that

her sources were consistent with professionally accepted standards, and to dispute the

reliability of the underlying factual information on which she relied. The sources

were not so slight as to be “fundamentally unsupported,” and the weight to be given

Smith’s opinion was properly left to the jury.

The district court reasoned that Smith compared the sales projections provided

by SP’s Managing Director with actual purchases, and found that the amounts were

substantially equal. Relying in part on Zoltek’s own projection that demand for fiber

was expected to exceed supply for years to come, Smith testified that SP could have

processed and sold all of the Panex 35 to which it was entitled to under the Supply

Agreement. SP presented evidence that it could have sold 3,960,276 additional

pounds of Panex 35 between 2005 and 2006 due to a market-wide shortage of carbon

fiber. Zoltek’s CEO himself agreed that given the state of the market, Zoltek would

be able to sell whatever carbon fiber it was able to make for the foreseeable future.

(Zoltek App. at 1075-76). 

Smith’s report verified that SP possessed adequate manufacturing capacity to

process 3,960,276 additional pounds of Panex 35 between 2005 and 2006, and

subtracted variable costs not incurred as a result of Zoltek’s alleged breach. To arrive

at the $21,138,518 award, Smith multiplied the volume of Panex 35 to which SP was

entitled to under the Supply Agreement by the then-current market price. This figure

was then multiplied by SP’s most recent eighteen month profit margin of 35 percent,

which was confirmed before trial by actual performance from January 2005 through

June 2006. Based on this evidence, we conclude that the jury’s award was adequately

supported by the record.
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2.

Zoltek argues that the district court erred by allowing SP to present to the jury

a damages calculation that did not count $13,353,696 worth of Panex 35 toward the

maximum volume SP was allegedly entitled to under the Supply Agreement. This

amount reflected a quantity of Panex 35 purchased from Zoltek in 2006 and provided

to a wind energy manufacturer, Gamesa, under a sales contract between Zoltek and

Gamesa. The contract allowed Gamesa to specify a prepreg processor, and Gamesa

chose SP. Because SP received fiber from Zoltek in connection with the Gamesa

contract, Zoltek argues that the shipment under this contract should have been

subtracted from the maximum volume of Panex to which SP was entitled under the

Supply Agreement. SP counters that the shipment was processed pursuant to

Gamesa’s separate contractual right, not SP’s contractual right under the Supply

Agreement, and therefore should be excluded from the volume allowed under the

Supply Agreement. Zoltek also argues that it was prejudiced when the district court

allowed SP’s to change its proposed damages calculation twenty-two days before trial

by removing an offset for the amount of the Gamesa contract.

The district court allowed SP to submit alternative damages figures, one that

counted the $13,353,696 Gamesa shipment toward the maximum quantity allowed

under the Supply Agreement, and one that did not. The jury adopted the larger figure.

Zoltek moved to reduce the award by $13,353,696 as a matter of law, but the district

court ruled that the sale to Gamesa had “no bearing on [Zoltek’s] obligation to provide

carbon fiber to [SP] under the Supply Agreement.” 

We first conclude that the district court did not abuse its discretion in rejecting

Zoltek’s objection to the timeliness of SP’s alternative damages calculation. In Phil

Crowley Steel Corp. v. Macomber, Inc., 601 F.2d 342 (8th Cir. 1979), this court held

that a district court did not abuse its discretion by allowing a change in the formula

used to calculate damages four days before trial, because “the documents upon which
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[the plaintiff’s] damages were calculated were made available to [the defendant] well

in advance of trial,” and because the defendant failed to seek a continuance after being

notified of the change in the formula. Id. at 344. Similarly here, we see no prejudice

to Zoltek and no abuse of discretion. The Gamesa contract was incorporated into

Smith’s first report on damages; in that version, the amount was deducted from the

lost profits to which SP claimed that it was entitled. The revised report merely

changed that assumption and projected the lost profits without applying an offset for

Gamesa. The underlying information was available to Zoltek throughout, and Zoltek

had adequate opportunity to argue why it believed that the amount of the Gamesa

contract should offset any damages that the jury awarded under the requirements

contract.

We also are not persuaded that the amount of the Gamesa contract must be

excluded as a matter of law from the jury’s final award to SP. The jury determined

that the volume of carbon fiber sold to Gamesa and processed by SP was not sold

pursuant to a right created under the Supply Agreement. The jury’s verdict in this

respect was adequately supported by the record. There was evidence that SP was not

a party to the Gamesa contract, was not involved in negotiating the contract, had no

say over the price or quantity shipped, and was obligated to transfer the product to

Gamesa after processing it. Zoltek’s CEO similarly testified at one point that the

shipment was made pursuant to Gamesa’s contractual right and “not to fulfill any

contractual commitment to SP.” The evidence adequately supported the jury’s

decision to find that Zoltek’s breach of the requirements contract extended to the full

amount to which SP was entitled under that contract, without regard to the separate

Gamesa contract.

3.

Finally, Zoltek argues that the district court’s damages instruction to the jury

did not “fairly and adequately present the applicable Missouri law of lost profits.”
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The district court instructed the jury that if it found in favor of SP on its claim for

breach of the supply agreement, then it must award the plaintiffs such sums as “you

believe will fairly and justly compensate them for any damages you believed they

sustained (and are reasonably certain to sustain in the future) as a direct result of

Zoltek’s breach of the Supply Agreement.” Zoltek complains that the instruction

should have included a specific direction not to award speculative damages, and that

the requirement of “reasonable certainty” should have applied to damages already

sustained, as well as damages to be sustained in the future.

We review a district court’s jury instructions for an abuse of discretion. Black

v. Shultz, 530 F.3d 702, 708 (8th Cir. 2008). To instruct the jury on damages, the

district court used Instruction No. 4.01 of the Missouri Approved Instructions (MAI)

for civil cases, which the Supreme Court of Missouri has described as “a short, simple,

general instruction which directs an award which will fairly compensate plaintiffs for

their damages.” Boten v. Brecklein, 452 S.W.2d 86, 93 (Mo. 1970). We have rejected

another challenge to the verbatim use of MAI 4.01, holding that “[w]here the charge

to the jury correctly sets forth the law, a lack of perfect clarity will not render the

charge erroneous.” Roth v. Black & Decker, U.S., Inc., 737 F.2d 779, 783-84 (8th Cir.

1984). We are not persuaded that the damages instruction in this case was flawed.

Given the specific direction that future damages must be “reasonably certain,” we see

no reasonable likelihood that a jury would have understood that present damages for

loss profits could be established by some lesser degree of certainty or by speculation.

We are satisfied that the instruction accurately sets forth Missouri law and was

sufficiently clear to give the jury appropriate direction.

III.

In its cross-appeal, SP argues that the district court erred by granting Zoltek’s

motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e).

The verdict form submitted to the jury included alternative damages calculations
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corresponding to 3,000,000 pounds of Panex 33 and 3,960,276 pounds of Panex 35.

The jury awarded SP damages under both calculations. The district court concluded

that SP had argued throughout the case that the Supply Agreement entitled them to

“either Panex 33 or Panex 35,” but not to both, and therefore vacated the lesser of the

two awards as duplicative.

We conclude that the district court did not abuse its discretion. SP’s complaint

pleaded Counts I and II in the alternative, demanding that Zoltek “supply the

unfulfilled quantities of PANEX 35 or, in the alternative, PANEX 33,” and alleging

that the contract was modified to “substitute” Panex 35 for Panex 33. SP’s damages

expert presented “alternative” damages calculations – one that assumed the Supply

Agreement encompassed both Panex 33 and Panex 35, and a second that assumed that

only Panex 33 was covered. The Supply Agreement referred to Panex 33 only, and

established a maximum quantity that SP was entitled to order. The jury evidently

accepted SP’s contention that it also was entitled to order Panex 35 under the

agreement, because it was an improved version of Panex 33, but the agreement did not

provide that SP could order the maximum quantity of both Panex 33 and Panex 35.

Under the Supply Agreement, SP was entitled to order the quantity of carbon

fiber ordered in the immediately preceding year, plus one million pounds. Thus,

between 2004 and 2005, SP was entitled either to 3,960,276 pounds of Panex 35, or

3,000,000 pounds of Panex 33, but not both. The jury’s award under both Count I and

Count II gave SP profit corresponding to 6,960,276 pounds of large-tow carbon fiber

when at most SP was entitled to 3,960,276 pounds. Therefore, the district court acted
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within its discretion when it determined that the jury’s award under both counts was

duplicative and altered the judgment accordingly.

* * *

For these reasons, the judgment of the district court is affirmed.

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