PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

ORP SURGICAL, LLC, a Colorado 

limited liability company; LEE 

PETRIDES, 

 Plaintiffs - Appellees/Cross- 

 Appellants,

v.

HOWMEDICA OSTEONICS CORP., 

a New Jersey corporation, 

 Defendant - Appellant/Cross- 

 Appellee.

Nos. 22-1430; 22-1455

_________________________________

Appeal from the United States District Court 

for the District of Colorado

(D.C. No. 1:20-CV-01450-RBJ)

_________________________________

Marcy G. Glenn (Maureen R. Witt and Nicholas W. Katz, Holland & Hart LLP, 

Denver, Colorado, and Michael D. Wexler, Seyfarth Shaw LLP, Chicago, 

Illinois, with her on the briefs) of Holland & Hart LLP, Denver, Colorado, for 

Defendant - Appellant/Cross-Appellee.

Todd E. Mair (Christopher P. Carrington with him on the briefs) of Richards 

Carrington, LLC, Denver, Colorado, for Plaintiffs - Appellees/CrossAppellants.

_________________________________

Before PHILLIPS, KELLY, and ROSSMAN, Circuit Judges.

_________________________________

PHILLIPS, Circuit Judge.

_________________________________

FILED

United States Court of Appeals

Tenth Circuit

February 6, 2024

Christopher M. Wolpert

Clerk of Court

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This litigation arises from the breakdown of a profitable business 

relationship that ended with a cohort of disgruntled employees jumping ship 

from one company to the other. At a bench trial, two corporations engaged in 

the medical-device-sales industry levied claims and crossclaims against each 

other for breach of their two sales agreements, governed by New Jersey law. 

After trial, the district court entered judgment for ORP Surgical, LLC (ORP), 

and awarded damages, attorneys’ fees, sanctions, and costs against Howmedica 

Osteonics Corp., referred to throughout this litigation by the name of its parent 

company, Stryker.

Before this court, Stryker challenges the district court’s rulings that 

Stryker breached the sales agreements and that ORP did not. Stryker also

contests the attorneys’ fees award, arguing that the district court misconstrued 

New Jersey law as requiring Stryker to indemnify ORP. On cross-appeal, ORP 

challenges the court’s awarding mere nominal damages—not compensatory 

damages—for Stryker’s breach of the non-solicitation/non-diversion provision

under one of the agreements.

We affirm in part and reverse in part. As to the judgment entered for ORP 

on the breach-of-contract claims and all crossclaims and the award of nominal 

damages, we affirm. As to the attorneys’ fees awarded under the 

indemnification provision, we reverse. We therefore vacate the attorneys’ fees

award and remand for further proceedings consistent with this opinion.

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BACKGROUND

I. Factual Background

Stryker makes medical devices and sells them to hospital surgeons. ORP 

is a Colorado-based company that sells medical devices throughout the region. 

Lee Petrides is the sole Manager of ORP and a named plaintiff in this litigation. 

In the early 2000s, ORP and Stryker entered into a successful business 

relationship in which ORP sold Stryker’s products in the Colorado region on 

commission. Though Stryker also sold some products in the region through its 

own sales subsidiary, Summit Surgical, a substantial portion of the regional 

sales were carried out by ORP sales representatives (“ORP reps” or “the reps”). 

ORP reps “require[d] a specialized skillset” to sell Stryker’s products. ORP 

Surgical, LLP v. Howmedica Osteonics Corp., No. 20-CV-01450, 2022 WL 

4298189, at *1 (D. Colo. Aug. 15, 2022). Successful sales depended on the reps 

developing “relationships with the surgeons to whom they sell” and “sufficient 

medical knowledge to advise and guide the surgeons in the use of Stryker 

products from inside the operating room.” Id. The upshot is that Stryker and 

ORP worked closely together. These companies and their employees knew each 

other intimately and relied on one another to succeed. 

ORP sold two types of Stryker products: joint replacements and trauma 

devices. For each of the two product types, ORP and Stryker entered a sales 

contract, the Joint Sales Representative Agreement (JSRA) and the Trauma 

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Sales Representative Agreement (TSRA), collectively, “the SRAs.” These 

contracts mirror each other, particularly the sections at issue in this appeal. 

The SRAs contain these provisions, summarized as follows:

• Section 2: 

Either party may terminate the contract for “any reason, or no 

reason,” with a 30-day written notice, and “in accordance with 

the provisions in Section 15.” App. vol. 7, at 1475, 1500.

• Section 6.1:

ORP will “use best efforts” to promote Stryker’s products and 

“develop [Stryker’s] goodwill within the [sales territory].” Id. at 

1476, 1501.

• Section 6.2: 

ORP has the “right to determine the means, methods, and 

resources” it “deems appropriate to sell and promote” Stryker 

products in its designated sales territory, provided that ORP 

“conduct itself and perform such activities to the standards and 

satisfaction of Stryker.” Id.

• Section 6.3: 

ORP may not “directly or indirectly” promote or sell products 

competitive with any of Stryker’s products, except for those 

included in a list of “Exempt Products” attached to the TSRA, 

which products ORP may sell to further Stryker’s best interest in 

servicing the needs of its client hospitals and surgeons. Id.

• Section 6.4:

Except for the “Exempt Products” attached to the TSRA, ORP 

cannot sell any products that compete with Stryker’s products, 

but “nothing contained herein in any way limits [ORP’s] 

unfettered right to represent, market, distribute or sell products 

that are not competitive with any of [Stryker’s products] or that 

do not conflict with the best interests of [Stryker].” Id. at 1477, 

1502.

• Section 7.3:

ORP will ensure at its own expense that “all [ORP reps] acting 

on behalf of [Stryker] in the [sales territory] comply with any 

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rules, regulations and policies imposed by [Stryker’s] 

customers.” Id. at 1478, 1503.

• Section 13.11:

ORP warrants that each ORP rep will “comply with all applicable 

laws, rules and regulations of any local, state, and federal 

governmental body, agency or board having jurisdiction.” Id. at 

1481, 1506.

• Section 15.1: 

Either party may terminate the contract “upon the occurrence of 

any . . . breach of any provision of this Agreement that is not 

cured within ten (10) business days after receipt of written notice 

thereof from the other Party.” Id. at 1484, 1509.

• Section 16.1: 

For one year after the end or termination of the agreement, ORP 

agrees not to compete, that is, “participate, in any manner 

whatsoever, in the sale, promotion, marketing, distribution or 

delivery of medical device products to or for any person” in 

Stryker’s sales territory, and ORP agrees not to solicit Stryker’s 

customers or employees. Id. at 1485–86, 1510–11.

• Section 16.2 (non-solicitation/non-diversion provision): 

Stryker agrees that for one year after termination of the 

agreement it will “not directly or indirectly divert or solicit, or 

attempt to divert or solicit, any current employee or independent 

contractor working for [ORP].” Id. at 1486, 1511.

• Section 16.3: 

During the one-year noncompete period, Stryker will “make 

payments to [ORP] on a monthly basis (the ‘[r]estriction 

[p]ayments’) in an amount equal to one-twelfth (1/12) of the 

aggregate commissions paid to [ORP] by [Stryker]” for twelve 

months before the agreement terminates. Id. 

• Section 16.4:

Stryker is released from paying ORP the restriction payments if 

Stryker terminates the agreement for “cause,” with “cause” 

defined as any breach of the terms or conditions in the agreement, 

among other things. Id.

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• Section 18 (indemnification provision):

“Either party shall indemnify, defend, exonerate, and hold the 

other harmless” for “any and all claims, suits, liability, loss, 

costs, expenses (including . . . reasonable attorneys’ fees and 

expenses).” Id. at 1487, 1512.

• Section 22 (non-waiver provision):

Either party’s failure “to enforce any provision(s) of this 

Agreement shall not constitute or be construed as a waiver of the 

provision(s).” Id. at 1488, 1513.

This relationship began in 2001 and worked well for many years; in 

August 2018, the parties renewed the SRAs. 

But everything started to go downhill in October 2018, when a 

Houston-based Stryker employee, Adam Jacobs, became Stryker’s new Vice 

President of Sales for the Rocky Mountain region. In late March 2019, Jacobs 

terminated the JSRA for cause. Because the termination was for cause, Jacobs 

claimed that, under Section 16.4, Stryker needn’t pay the restriction payments. 

In response, ORP denied any breach and insisted that Stryker pay the restriction 

payments. 

In June 2019, Jacobs approached Petrides with new proposed terms for 

terminating the JSRA: Stryker would agree to pay ORP the twelve months of

restriction payments if ORP agreed to waive the non-solicitation/non-diversion

provision covering the reps. Stryker wanted ORP to waive the provision so that 

Stryker could hire James Demorset, an ORP sales rep. Petrides rejected the 

offer. But then, in October 2019, Stryker hired Demorset anyway.

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Earlier, in September 2019, Jacobs emailed Petrides to initiate a 

“mutually agreeable termination” of the TSRA. App. vol. 7, at 1563. Jacobs 

pitched Petrides two alternatives for terminating the TSRA: (1) ORP would be 

subsumed as Stryker’s agent; or (2) Stryker would buy out ORP for $8 million, 

pay no restriction payments, and be free of the non-solicitation/non-diversion

provision.

At this point, Jacobs and Petrides met at a Starbucks to discuss the 

termination offer. During this meeting, Petrides wrote his terms on a sticky 

note, counteroffering to settle for $13.6 million. Petrides claims that Jacobs 

accepted the offer then and there; Jacobs claims that he told Petrides he was 

generally amenable to a deal but that he needed to consider the specific terms.

During the next few months, Jacobs frequently communicated with ORP 

reps through phone calls, dinners, and in-person meetings. Then, on March 31, 

2020, Jacobs emailed Petrides with a proposal for $13.6 million, conditional on 

ORP’s promise to waive the non-solicitation/non-diversion provision so that 

Stryker could hire fourteen ORP reps. To reach the $13.6 million sum, Stryker 

offered an initial $8 million for the cost of terminating the TSRA and ORP’s 

waiving the non-solicitation/non-diversion provision, plus an additional dollar 

amount for each rep it acquired from ORP. Thus, the $13.6 million depended on 

Stryker getting all the reps it wanted from ORP.

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According to Petrides, Jacobs declared that he would terminate the TSRA 

for cause unless the parties had a signed deal by that Friday, April 3, 2020. 

Jacobs denied ever threatening Petrides to sign the proposed buyout deal.

On April 3, 2020, Petrides instead voluntarily terminated the TSRA. 

Petrides apparently sought to beat Jacobs to the punch. The April 3, 2020 

termination started the 30-day clock under Section 2, meaning that absent a 

cure of the breach, the TSRA would officially terminate at 11:59:59 p.m. on 

May 3, 2020. That evening of April 3, 2020, Jacobs emailed all the ORP reps 

about the TSRA’s termination and notified them that Stryker personnel would 

be reaching out to discuss the “transition.” App. vol. 9, at 1662.

The next day was eventful. Beginning in the early morning hours, 

Jacobs’s email to his so-called ORP “dream team” was met with a 

near-instantaneous flurry of responses from ORP reps expressing their desire to 

join Stryker. For the next month, as shown by phone records and email logs,

Stryker executives frequently contacted ORP reps. Some of these conversations 

included discussions of the noncompete language in ORP contracts, questions 

about Stryker’s offering legal representation, and inquiries about Stryker’s 

online job applications.

A month later on May 4, 2020, mere hours after the TSRA officially 

terminated, a dozen ORP reps emailed their resignations to Petrides and 

accepted offers at Stryker. Within the month, ORP sued Stryker. 

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II. Procedural Background

In its final amended complaint, ORP made six claims for relief, two of 

which were tried before the district court: breach of contract and corporate 

raiding. 1 Stryker answered with several counterclaims: breach of contract under

both SRAs, unfair trade practices, and tortious interference of contract, which 

specifically identified Stryker’s former employee, Morgan Schilling. 2

During an eight-day bench trial, the district court heard testimony from 

the key players: Petrides, Jacobs, ORP reps (Matthew Corcoran, Ryan Dunn, 

James Beddall, Brett Bakersky, Hayden Spellbring, Austin Olson, Craig Frey, 

Parthenios “Peter” Henderson), and Stryker executives (Tim Sebald, Michael 

Bonessi, Scott Curtis). ORP also called witnesses to defend against Stryker’s 

counterclaims, including Dr. Mark Tuttle, one of Stryker’s surgeons, who 

testified to the differences between Stryker’s products and similar products 

1 In its final amended complaint, ORP also raised claims for unjust 

enrichment, intentional interference with existing contractual relationships,

intentional interference with prospective business relations, and violation of the 

Colorado Wholesale Sales Representatives Act, Colo. Rev. Stat. § 13-21-1303

(2023). ORP voluntarily dismissed three of these claims before trial, and the 

parties agreed to dismiss the fourth during a pretrial conference. 

ORP separately sued the reps that fled to Stryker. Those cases have 

settled.

2 Stryker sued Morgan Schilling, former Trauma Sales Manager at 

Summit Surgical, separately in New Jersey federal district court. A New Jersey 

federal magistrate judge ordered the case to mediation, set for February 2024. 

Text Order, Howmedica Osteonics Corp. v. Schilling, 20-CV-09621 (D.N.J.

Oct. 4, 2023), ECF No. 187. At the time of this writing, discovery in that case 

is ongoing.

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from other manufacturers. The court also heard testimony from competing 

damages experts.

The district court entered judgment for ORP on the breach-of-contract 

claims and all counterclaims. After entry of the final judgment, ORP moved 

under Rule 59(e) for the court to alter or amend its judgment to deny Special 

Master’s fees and to award actual damages for Stryker’s soliciting Demorset. 

Similarly, Stryker moved under Rules 52(b) and 59(e) for the court to not 

award ORP attorneys’ fees under the SRAs’ indemnification provision and to 

make two clarifications related to the prejudgment interest award.

3

The district court granted in part and denied in part the parties’ post-trial

motions. On attorneys’ fees, the district court declined Stryker’s request to 

modify the judgment. Interpreting the indemnification provision under New 

Jersey law, the court again ruled that the provision encompasses first-party 

indemnity claims. But the court did amend the judgment to clarify the award of 

prejudgment interest, as Stryker requested.

4

3 Stryker’s post-trial motion raised two challenges related to prejudgment 

interest: (1) the docket entry for the court’s “Final Judgment” was not, in fact, 

final because prejudgment interest was undetermined; and (2) New Jersey law 

required the court to identify the equitable considerations in favor of awarding 

prejudgment interest, which it failed to do.

4 In response to Stryker’s motion, the court amended the docket entry 

from “Final Judgment” to “Judgment,” and it added a footnote to its amended 

findings that articulated the equitable interests supporting the prejudgment 

interest award, in accordance with New Jersey law. App. vol. 5, at 1120 n.10 

(footnote continued)

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In response to ORP’s motion, the court agreed with ORP that the Special 

Master’s fees were subsumed under the existing attorneys’ fees award, and that

some other form of sanctions was needed to compensate ORP for Stryker’s 

discovery misconduct. So the court amended its order to award “attorney’s fees 

and costs incurred in the related state court litigation as a result of Stryker[’s] 

. . . discovery misconduct.” App. vol. 5, at 1060. And finally, regarding

Demorset, the court denied ORP’s request for damages because ORP had failed 

to prove that Stryker solicited Demorset in breach of the JSRA. 

Accordingly, the court entered an amended findings of fact, conclusions 

of law, and order of judgment. See ORP Surgical, 2022 WL 4298189, at *1.

Those amended findings and conclusions are the basis of this appeal.

The judgment was amended twice more in response to additional posttrial motions on attorneys’ fees, sanctions, costs, and prejudgment interest, 

which are not relevant to the substantive issues raised on appeal. 5 The district 

(quoting W.R. Huff Asset Mgmt. Co. v. William Soroka 1989 Tr., No. 04-CV3093, 2009 WL 2436692, at *1 (D.N.J. Aug. 6, 2009)).

5 The district court’s initial findings of fact, conclusions of law, and 

order of judgment were entered on May 10, 2022. ORP Surgical, LLP v. 

Howmedica Osteonics Corp., No. 20-CV-01450, 2022 WL 1468115 (D. Colo. 

May 10, 2022). Both parties then filed various post-trial motions to amend or 

alter the judgment. The district court amended its findings of fact and 

conclusions of law accordingly, and on August 15, 2022, entered its final 

findings and conclusions. ORP Surgical, 2022 WL 4298189, at *1. After 

another round of post-trial motions, the court entered an amended judgment on 

August 22, 2022, which ordered Stryker to reimburse ORP for 90% of its 

reasonable attorneys’ fees for the costs incurred in recovering spoliated 

(footnote continued)

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court entered an order dispensing with these remaining post-trial motions, and 

it separately entered an amended order and final judgment (1) in favor of 

Stryker on the corporate raiding claim, (2) in favor of ORP on the 

breach-of-contract claims and all counterclaims, and (3) awarding attorneys’

fees, damages, costs, sanctions, and prejudgment and post-judgment interest in 

these amounts:

• Actual damages awarded to ORP for the unpaid restriction 

payments due in the amount of $1,018,896.00 under the JSRA and 

$3,731,791.47 under the TSRA;

• Nominal damages for $1.00 awarded to ORP for Stryker’s breach 

of the non-solicitation/non-diversion provision under the TSRA;

• Reasonable attorneys’ fees awarded to ORP, authorized by 

Section 18 of the SRAs, equaling $2,285,951.50;

• Discovery sanctions awarded to ORP for $70,473.85—equaling 

90% of ORP’s reasonable attorneys’ fees and costs incurred for 

the recovery of spoliated evidence— 3⁄4 to be paid by Stryker, 1⁄4 

to be paid by Stryker’s counsel;

• Costs awarded to ORP equaling $98,366.22;

• Prejudgment interest awarded to ORP equaling $446,456.12; and

evidence during the state court litigation. App. vol. 5, at 1133–35. On 

November 14, 2022, the court entered its second amended order and judgment 

on the amount of attorneys’ fees, sanctions, costs, and prejudgment interest. 

ORP Surgical, LLP v. Howmedica Osteonics Corp., No. 20-CV-01450, 2022 

WL 16924068 (D. Colo. Nov. 14, 2022). And finally, on December 27, 2022, 

the court entered its third and final judgment, which resolved all remaining 

filings, evidence, arguments, and motions related to the award of attorneys’

fees, sanctions, costs, and prejudgment and post-judgment interest. ORP 

Surgical, LLP v. Howmedica Osteonics Corp., 647 F. Supp. 3d 1068 (D. Colo. 

2022).

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• Post-judgment interest to be awarded according to federal rates 

established under 28 U.S.C. § 1961(a).

App. vol. 7, at 1428–30. See generally ORP Surgical, LLP v. Howmedica 

Osteonics Corp., 647 F. Supp. 3d 1068 (D. Colo. 2022).

The parties filed timely notices of appeal and cross-appeal. 6 We have 

jurisdiction under 28 U.S.C. § 1291.

DISCUSSION

Stryker presents three issues on direct appeal and ORP presents one issue 

on cross-appeal. Stryker claims that the district court (1) erred in fact and law 

in ruling that ORP breached neither of the SRAs and, relatedly, that Stryker 

lacked cause to terminate the JSRA; (2) misinterpreted New Jersey law in

ruling that Section 18 of the SRAs covers first-party indemnification claims; 

and (3) erroneously awarded ORP damages beyond those proved.

On cross-appeal, ORP claims that the district court erred by awarding

mere nominal damages for Stryker’s solicitation and diversion instead of

compensatory damages.

6 ORP and Stryker prematurely filed notices of appeal before the district 

court had resolved all post-trial motions and determined a sum certain amount 

of prejudgment interest. Accordingly, this court dismissed those appeals for 

lack of jurisdiction. ORP Surgical, LLC v. Howmedica Osteonics Corp., Nos. 

22-1289, 22-1320, 2022 WL 19039680, at *1 (10th Cir. Oct. 26, 2022). Both 

parties then filed timely notices of appeal and cross-appeal after the district 

court entered its third amended and final judgment.

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I. Stryker’s Factual Arguments

Stryker argues that (1) ORP’s purported breach of the JSRA gave Stryker 

cause to terminate the contract, and (2) ORP breached the TSRA, eliminating 

any responsibility for Stryker to pay the restriction payments. Stryker disputes 

the district court’s ruling that ORP breached neither contract and that Stryker 

indeed owed ORP the restriction payments. Specifically, Stryker alleges that 

the district court committed seven factual errors—four in applying the JSRA 

and three in applying the TSRA. 

As a threshold matter, we observe that many of the district court’s 

findings in this case rested on credibility determinations of the testifying 

witnesses. Overall, the district court remarked that it found Stryker’s witnesses 

“lacked credibility.” ORP Surgical, 2022 WL 4298189, at *7. We give those 

findings the broad deference they deserve. Martin v. Gingerbread House, Inc., 

977 F.2d 1405, 1408 (10th Cir. 1992) (citing Anderson v. City of Bessemer 

City, 470 U.S. 564, 575 (1985)). Yet we acknowledge that not all of Stryker’s 

fact-based arguments depend on credibility. So we proceed to tick through each 

of Stryker’s claims of error, grouping them according to the SRAs.

A. Standard of Review

We will not set aside fact-findings from a bench trial absent clear error. 

Ryan v. Am. Nat. Energy Corp., 557 F.3d 1152, 1157 (10th Cir. 2009). To 

assess whether a clear error has been made, “we must view the evidence in the 

light most favorable to the district court’s ruling and must uphold any district 

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court finding that is permissible in light of the evidence.” Ramos v. Banner 

Health, 1 F.4th 769, 777 (10th Cir. 2021) (cleaned up).

B. The JSRA

Stryker contends that it terminated the JSRA for cause and thus does not 

owe ORP twelve months of restriction payments. Under Section 16.4, Stryker 

owed ORP restriction payments if Stryker terminated without “cause.” App. 

vol. 7, at 1486. The district court determined that ORP did not breach the 

JSRA, that Stryker had no cause to terminate, and that therefore restriction 

payments were due. On appeal, Stryker alleges that these findings were clear 

error.

First, Stryker argues that it had cause to terminate the JSRA because in 

November 2018 one of Stryker’s client hospitals suspended Scott Stapleford, an 

ORP joint-device-sales rep and part owner of ORP. The district court found this 

was immaterial and most likely a “post-hoc legal justification[]” for 

terminating the contract. ORP Surgical, 2022 WL 4298189, at *5. The court 

was persuaded by evidence that Stryker had known about Stapleford’s 

suspension for months before terminating the JSRA, that Stryker’s own reps 

had been suspended by hospitals with no disciplinary response, and that 

Stapleford had been “too-ardently defending the Stryker business,” but not 

necessarily adversely to Stryker’s interests. Id.

Stryker argues on appeal that Stapleford’s behavior established cause to 

terminate the JSRA. Stryker contends that the district court erred by ignoring 

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the “neutral” testimony of Scott Curtis, former General Manager of Summit 

Surgical, who recounted Stapleford’s wrongdoings at trial. Op. Br. at 18.

But viewing the evidence favorably to the district court’s decision, we 

conclude that Curtis’s testimony bolsters the court’s finding. Curtis testified 

that Stapleford almost single-handedly grew Stryker’s joint-device-sales 

business, which earned the company millions. He conceded that Stapleford was 

a talented sales rep. And Curtis confirmed that Stryker knew about Stapleford’s 

suspension in November 2018 yet waited until March 2019 to terminate the 

JSRA. For these reasons, Curtis’s testimony supports the inference that 

overlooking Stapleford’s suspension served Stryker’s best interests. So we 

disagree that the district court’s placing more weight on Curtis’s testimony 

would have changed the outcome.

Second, Stryker alleges that ORP breached the JSRA because Stapleford 

sold competitive products to Stryker’s clients. This failed to convince the 

district court for two reasons. One, there was no evidence in the record to prove 

that Stapleford actually sold the product to the hospital. Two, the testimony at 

trial contradicted Stryker’s claim that the products were competitive with each 

other.

Stryker calls foul because the JSRA prohibited ORP reps not just from

selling competitive products, but also from delivering or distributing them. And 

Stryker insists the evidence shows that the product—a hip stem made by

another company, Link—was competitive. Again, the record is not on Stryker’s 

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side. We acknowledge that the evidence shows Stapleford provided one of 

Stryker’s surgeons, Dr. Tuttle, with a Link hip stem after Dr. Tuttle requested 

it. But there is no evidence that Stapleford sold the hip stem to Dr. Tuttle. And 

even if he delivered or otherwise provided it, as Stryker alleges, the evidence 

shows that the Link hip stem was not a competitive product. Dr. Tuttle testified 

that the two hip stems were not interchangeable. And even Jacobs admitted that 

some patients require the Link hip stem over Stryker’s analog because Stryker’s 

design can risk causing their femurs to crack. So we see adequate evidence in 

the record to buoy the district court’s finding that the Link hip stem and 

Stryker’s product were not competitive with each other, and thus Stapleford’s 

furnishing the Link hip stem to Dr. Tuttle was no cause for termination. 

Third, Stryker claims that ORP’s delay in reporting its year-end invoices 

in December 2018 created cause to terminate the JSRA. The district court 

rejected this argument too, persuaded by testimony showing that the 

misreporting was a genuine clerical error by ORP. And “most importantly,” the 

court noted, Stryker hired Demorset—the individual “most responsible for the 

invoice issue, which it would not have done had it believed [Demorset] 

willfully defrauded Stryker.” ORP Surgical, 2022 WL 4298189, at *4.

Stryker argues that, regardless of ORP’s intentions, the delinquent 

invoices per se violated the JSRA’s requirement that ORP comply with 

Stryker’s internal policies. But the evidence supports the district court’s 

finding that this argument is a red herring. In early January 2019, Curtis 

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reprimanded Petrides for the late invoices; Petrides explained what happened: 

Demorset was newly trained on the reporting software and had simply made a 

mistake, Demorset accepted full responsibility, and Stryker dropped the matter. 

So the district court had good reason to wonder about Stryker’s claim that the 

invoices justified terminating the JSRA in March 2019 after the issue was 

apparently resolved in January 2019.

Fourth and finally, Stryker alleges that Stapleford’s insubordination to 

Curtis gave Stryker cause to terminate. The district court rejected this

argument. In doing so, the court noted that Stapleford’s pugnacious business 

style was known at ORP and Stryker throughout his career, yet accusations of

“insubordination” never arose before this lawsuit. Id. at *5.

We agree that the record refutes Stryker’s argument, at least in part

because it’s not clear that Stapleford can be fairly described as Curtis’s 

subordinate. Curtis admitted as much in his own testimony. Stapleford was 

historically unpleasant to work with, true enough, but the district court did not 

clearly err in determining that his alleged insubordination gave no cause for 

Stryker to terminate the JSRA. 

Because the record supports the district court’s finding that Stryker 

lacked cause to terminate the JSRA, Stryker was not excused from making the 

restriction payments to ORP.

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C. The TSRA

Petrides’s voluntary termination of the TSRA triggered Section 16.3 of 

the contract, which required Stryker to make restriction payments to ORP. But 

Stryker seeks refuge under Section 16.4, arguing that ORP’s previous breach

relieved it of responsibility for those payments. The district court found no 

breach, which Stryker argues was clear error.

First, Stryker alleges that ORP breached the TSRA when it sold a 

competitive product to client hospitals. The allegedly competitive product (the 

SegWay product) was a scope used for carpal tunnel procedures. In 2017, 

Stryker purchased a company (Instratek) that made a comparable product. 

When the parties renewed the TSRA in August 2018, the SegWay product was 

not listed as an approved competitive product for ORP reps to sell because 

Stryker wanted the reps promoting Instratek’s version.

But the district court found that Stryker failed to provide ORP with 

adequate inventory and training sufficient to supply clients with the Instratek

product. This failing persisted after ORP reps requested the necessary resources 

from Stryker. The court also noted that the SegWay sales comprised a mere 

$150,000 of ORP’s total $25 million Stryker sales in 2019. The court therefore 

concluded that Stryker’s “tacit consent” to ORP’s sales of the SegWay product 

defeated any retroactive justification for withholding the restriction payments. 

Id. at *6.

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Before this court, Stryker maintains that the SegWay product was not an 

approved competitive product for ORP reps to sell under the TSRA, whether 

Stryker gave its “tacit consent” or not. Op. Br. at 42. But this argument fails

because the record contains an email thread that exhibits precisely what ORP 

complained about: ORP requested inventory and training from Stryker for the 

Instratek product; Stryker knew that ORP was selling SegWay’s product in the 

interim to meet client demands; and yet, Stryker failed to supply ORP with 

Instratek inventory. There is no contradictory evidence in the record. Further, 

Section 6.4 of the TSRA states that “nothing contained herein in any way limits 

[ORP’s] unfettered right to . . . distribute or sell products . . . that do not 

conflict with the best interests of [Stryker.]” App. vol. 7, at 1502. This 

provision sanctions ORP’s decision to continue supplying Stryker’s hospitals—

an act clearly in Stryker’s best interests—despite Stryker’s failure to give ORP 

inventory from its preferred manufacturer. We have no reason to overturn the 

district court’s finding on this point.

Second, Stryker claims that ORP violated Stryker’s Trauma Inventory 

Agreements (TIAs), contracts between Stryker and the hospitals. It did so, 

allegedly, by reducing the hospitals’ shelf space for Stryker products and 

lending more space to Stryker’s competitors. The district court dismissed this 

claim for insufficient evidence. It also noted that ORP was not party to the 

TIAs, implying that it would be unfair to hold ORP to those agreements. 

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On appeal, Stryker characterizes the district court’s finding as “stunning” 

in view of testimony from ORP reps Frey and Henderson. Op. Br. at 45. But the 

district court specifically found that Frey and Henderson were not credible 

witnesses, and we see no basis to overrule that assessment. See Acosta v. 

Paragon Contractors Corp., 884 F.3d 1225, 1234 (10th Cir. 2018) (noting the 

“great deference” we extend to the district court’s credibility determinations 

(citation omitted)). Because this argument rests entirely on witness testimony

that the district court found not credible, we cannot properly review it, let alone 

reverse for clear error on this ground.

Third and finally, Stryker alleges that Morgan Schilling, a Stryker 

employee and former owner of ORP, promoted ORP’s interests over Stryker’s

in violation of ORP’s contractual duty to advance Stryker’s best interests. 

Stryker also argued that Schilling misrepresented his financial stake in ORP. 

Yet the district court found that Stryker failed to tether this alleged coverup by 

Schilling, a Stryker employee, to ORP’s compliance with the TSRA. The court 

noted too that Stryker knew about Schilling’s close relationship with Petrides 

and ORP. Most of all, the court admonished Stryker that its “claims against Mr. 

Schilling belong in the New Jersey case, not here.” 7 ORP Surgical, 2022 WL 

4298189, at *6.

7 At the time of this writing, the New Jersey litigation is ongoing, see 

footnote 2.

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We agree that these claims are most appropriately adjudicated in 

Stryker’s separate litigation with Schilling. And even if we were inclined to 

address them here, we would not find the district court clearly erred. Stryker’s 

statements that Schilling acted as ORP’s agent are entirely conclusory, and its 

characterization of Schilling’s activities is unsupported by the evidence. 8 The 

district court thus decided correctly that the Schilling arguments were 

misplaced and factually unsound.

None of the alleged factual errors Stryker identifies amount to clear 

error. And so, we move on to address Stryker’s legal claims.

II. Stryker’s Legal Arguments

Beyond its factual allegations, Stryker argues that the district court made 

several subsidiary legal findings that require us to reverse. These allegedly 

erroneous legal findings break down into three categories: materiality, waiver, 

and lay opinion. More specifically on each, Stryker claims that the district 

8 Stryker’s main argument at trial was that Schilling deceived Stryker in 

misreporting remuneration payments he was receiving from ORP. But the 

district court didn’t buy this theory. The evidence showed that Schilling owned 

a half stake in ORP when Stryker hired him in 2006. He then divested his 

shares after accepting his new job at Stryker, at Stryker’s request, to be paid 

out by ORP over time. ORP gave Schilling the option to buy back his shares 

between 2006 and 2013 at 25% interest, but Schilling never exercised the 

option. Nevertheless, Stryker alleged in the district court, and now on appeal,

that Schilling had an outsized interest in ORP’s success to secure his financial 

stake.

Like the district court, we disagree that the evidence supports this 

allegation. Also, Schilling did not testify at trial, so for that and the other 

reasons stated here we do not weigh in on Stryker’s claims related to Schilling.

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court legally erred in (1) determining that ORP’s alleged breaches of the SRAs 

were immaterial, and thus insufficient to breach the contracts under New Jersey 

law; (2) accepting ORP’s “pretext theory” that Stryker acquiesced to ORP’s 

alleged misconduct and therefore waived its right to enforce the SRAs, despite 

the agreements’ non-waiver provision; and (3) relying on expert opinion 

testimony “disguised” as lay opinion. Op. Br. at 13. 

A. Standard of Review

On the first two issues, materiality and waiver, Stryker shoehorns 

fact-based issues into legal arguments, presumably to avail itself of de novo 

review. But when the factual inquiries predominate in a mixed question of law 

and fact, as they do here, our review is for clear error. See United States v. 

Abouselman, 976 F.3d 1146, 1153–54 (10th Cir. 2020). On the third issue, lay 

opinion, we review a trial court’s decision to admit evidence as expert or lay 

opinion for abuse of discretion. See Ryan Dev. Co., L.C. v. Indiana

Lumbermens Mut. Ins. Co., 711 F.3d 1165, 1170 (10th Cir. 2013).

B. Materiality

As a matter of law, Stryker argues that the district court erred in 

assuming that Stryker’s nonperformance could be excused only by a “material 

breach.” Op. Br. at 21. Stryker notes that the contract language simply required 

a “breach,” and therefore the district court wrongly ignored the “cumulative

impact” of the numerous “immaterial” breaches ORP committed. Id. at 16,

20–22. Stryker argues that the district court erred because it “sliced and diced” 

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ORP’s misconduct instead of viewing it as an “organic whole.” Id. at 17, 41. In 

particular, Stryker contests the district court’s determinations that three 

instances were immaterial: “ORP’s late invoices, Stapleford’s suspension, and 

SegWay sales.” Stryker Reply Br. at 4.

As to the invoices, Stryker decries the district court’s finding based on 

“legally extraneous considerations” and urges that ORP’s “failure to timely 

submit 24 invoices” violated ORP’s covenant to comply with Stryker policies. 

Op. Br. at 34–36. Regarding the SegWay sales, Stryker challenges the district 

court’s finding that ORP’s sales were immaterial and insists that $150,000 “is a 

material amount.” Stryker Reply Br. at 19. And as for Stapleford’s suspension, 

Stryker contends that this “indisputably breached the SRA” because it violated 

JSRA Sections 6.1 (goodwill), 7.3 (compliance with rules and policies), and 

13.11 (compliance with applicable laws). Op. Br. at 20. Stryker alleges that 

ORP’s breaches under these provisions were material as a matter of law.

To buttress this proposition, Stryker cites a Third Circuit opinion saying

that if a breach of a contractual provision “excuses the future performance” by 

the nonbreaching party, then “[b]y contractual definition . . . such obligations 

are material.” 9 Stryker Reply Br. at 2 (quoting In re Gen. DataComm Indus., 

9 Stryker claims that New Jersey courts have applied this principle, citing 

as an example Dunkin’ Donuts of Am., Inc. v. Middletown Donut Corp., 495 

A.2d 66 (N.J. 1985). But materiality was not at issue in Dunkin’ Donuts, and so 

we find that case irrelevant to this analysis.

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Inc., 407 F.3d 616, 623 n.12, 624 (3d Cir. 2005)). But in DataComm, the Third 

Circuit also recognized that “what constitutes a material breach . . . is governed 

by relevant state law.” 407 F.3d at 623 (citing In re Columbia Gas Sys. Inc., 50 

F.3d 233, 240 n.10 (3d Cir. 1995)). 10 And in New Jersey, materiality is a 

question for the trier of fact. See Magnet Res., Inc. v. Summit MRI, Inc., 723 

A.2d 976, 982 (N.J. Super. Ct. App. Div. 1998).

The district court found ORP’s conduct immaterial, which is a 

fact-finding that we cannot reverse on appeal without a showing of clear error. 

See Ryan, 557 F.3d at 1157. Seeing none, we decline to disturb the district 

court’s rulings as to materiality.

C. Waiver

Stryker next argues that the district court’s failure to enforce the 

non-waiver provision under Section 22 of the SRAs was legal error.

Section 22 states:

The failure at any time of either Party to enforce any provision(s) of 

this Agreement shall not constitute or be construed as a waiver of 

the provision(s) or of the right of that Party to subsequently enforce 

that, or any other provision(s), of this Agreement.

App. vol. 7, at 1488, 1513.

10 Our circuit adopts the same principle that materiality is a state law 

issue. See, e.g., Elm Ridge Expl. Co., LLC v. Engle, 721 F.3d 1199, 1212 (10th 

Cir. 2013) (applying New Mexico law); Elec. Distribs., Inc. v. SFR, Inc., 166 

F.3d 1074, 1086 (10th Cir. 1999) (applying Colorado law).

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The district court made several findings on waiver. First, the court found

that Stapleford’s suspension—one of Stryker’s purported “cause[s]” for 

terminating the JSRA—was both “immaterial” and waived because “Stryker 

[had] known about Mr. Stapleford’s suspension for months without objecting.” 

ORP Surgical, 2022 WL 4298189, at *5. More pointedly, the court perceived 

that Stryker’s citing the suspension was merely a “post-hoc legal 

justification[]” for its litigation with ORP. Id. Second, the district court 

dismissed Stryker’s reference to Stapleford’s “insubordination” as a breach of 

the JSRA. Id. The court acknowledged that Petrides and Stapleford were 

“abrasive and difficult to work with,” while noting that “Stryker did not 

mention insubordination as a cause for termination until litigation began.” Id.

Third, the court was unmoved by Stryker’s contention that ORP’s SegWay sales 

breached the TSRA. Regarding the SegWay sales, the court observed that 

“Stryker never provided ORP training or inventory” for its own product, despite 

ORP’s requests to that effect, and that Stryker had thus “tacit[ly] consent[ed]” 

to the sales of a competitor product. Id. at *6.

On appeal, Stryker casts these findings as legal and factual error. To the 

extent that Stryker delayed enforcing the JSRA against ORP after Stapleford’s 

suspension in November 2018, which Stryker denies, Stryker maintains that the 

non-waiver provision preserved its right to enforce the JSRA against ORP in 

March 2019. And to the extent that Stryker allowed ORP to sell SegWay 

products through “knowledge and tacit consent,” which it also denies, Stryker 

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alleges that the non-waiver provision kicked in to save that claim as well. Op. 

Br. at 42. Stryker recognizes that the SRAs contemplate waiver but clarifies 

that the contracts do so “only by a written instrument signed by [Stryker and 

ORP].” Stryker Reply Br. at 6 (quoting App. vol. 7, at 1488). And as Stryker 

points out, no such agreement was signed here.

Under New Jersey law, “[t]he intent to waive need not be stated 

expressly, provided the circumstances clearly show that the party knew of the 

right and then abandoned it, either by design or indifference.” Knorr v. Smeal,

836 A.2d 794, 798 (N.J. 2003) (emphasis added); accord Merchs. Indem. Corp. 

of N.Y. v. Eggleston, 172 A.2d 206, 216 (N.J. Super. Ct. App. Div. 1961), aff’d, 

179 A.2d 505 (N.J. 1962) (stating that waiver may arise from “continu[ed] 

indifference to the exercise of [a] right” despite “full knowledge of 

circumstances producing [that] right”). As with any contract provision, “the 

nonwaiver provision itself . . . is subject to waiver by agreement or conduct 

during performance.” 13 Williston on Contracts, § 39:36 (4th ed.); see also 

Gray Holdco, Inc. v. Cassady, 654 F.3d 444, 454 (3d Cir. 2011) (concluding 

that a party who pursues “extensive litigation inconsistent” with their 

contractual right to arbitrate could, indeed, waive the right to arbitration 

through that litigious conduct).

Also, in New Jersey, waiver of a contract provision through a party’s 

actions—or inactions—is a question of fact, not law. See Shebar v. Sanyo Bus. 

Sys. Corp., 544 A.2d 377, 384 (N.J. 1988) (“Questions of waiver . . . are 

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usually questions of intent, which are factual determinations . . . .”); lafelice ex 

rel. Wright v. Arpino, 726 A.2d 275, 278 (N.J. Super. Ct. App. Div. 1999) 

(clarifying that “if a fact-finder could reasonably draw either inference,” that is 

an inference of “recission or affirmation” of a contract based on a party’s 

conduct after a breach, then “the issue is one of fact”); Garden State Bldgs., 

L.P. v. First Fid. Bank, N.A., 702 A.2d 1315, 1322–23 (N.J. Super. Ct. App. 

Div. 1997) (providing that waiver may occur by “passive conduct,” and that 

“[s]uch waiver is basically a question of intention, and usually a matter for the 

trier of fact”). 

The district court made a specific fact-finding that Stryker’s stated 

reasons for terminating the JSRA were simply “post-hoc legal justifications.” 

ORP Surgical, 2022 WL 4298189, at *5. It also found that the SegWay sales 

did not cause ORP to breach its obligations under the TSRA, nor did the sales 

provide grounds to relieve Stryker from paying the restriction payments. 

Accepting these findings as true and applying the governing law, we 

perceive no legal error here. New Jersey law allows non-waiver provisions to 

be waived the same as any other contract provision. See Cnty. of Camden v. 

FCR Camden, LLC, No. A-2324-19, 2021 WL 2879119, at *13 (N.J. Super. Ct. 

App. Div. July 9, 2021) (citing 13 Williston on Contracts, § 39:36). And so we 

consider whether one of the contracted parties, through its conduct or 

indifference, elected “to forego some advantage which that party might have 

demanded and insisted on” under the contract. Indagro v. Nilva, No. 07-CVAppellate Case: 22-1430 Document: 010110995568 Date Filed: 02/06/2024 Page: 28
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3742, 2016 WL 3574330, at *5 (D.N.J. June 30, 2016) (quoting West Jersey 

Title & Guar. Co. v. Indus. Tr. Co., 141 A.2d 782, 786 (N.J. 1958)). Here, the 

district court found that Stryker was indifferent, which defeats its waiver

argument as a matter of law.

D. Lay Opinion

At trial, Stryker objected to the admission of testimony from one of 

ORP’s witnesses, Dr. Tuttle, on the ground that the testimony was undisclosed 

expert opinion. ORP countered that Dr. Tuttle was simply testifying to “what he 

does for a living” and maintained that the court could hear his testimony as a 

lay witness. App. vol. 30, at 5781. The district court denied Stryker’s objection 

and admitted the testimony as lay opinion. Stryker reprises its objection on 

appeal, contending that the district court legally erred in admitting the 

testimony as improper expert opinion “disguised” as lay opinion. Op. Br. at 29.

The Federal Rules of Evidence cover lay-witness testimony in Rule 701:

If a witness is not testifying as an expert, testimony in the form of 

an opinion is limited to one that is: (a) rationally based on the 

witness’s perception; (b) helpful to clearly understanding the 

witness’s testimony or to determining a fact in issue; and (c) not 

based on scientific, technical, or other specialized knowledge within 

the scope of Rule 702.

Testimony that reflects “technical or specialized knowledge” generally 

falls outside the ambit of Rule 701. See James River Ins. Co. v. Rapid Funding, 

LLC, 658 F.3d 1207, 1215 (10th Cir. 2011) (“Knowledge derived from previous 

professional experience falls squarely within the scope of Rule 702 and thus by 

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definition outside of Rule 701.” (cleaned up)). But possessing expert 

knowledge or training does not automatically disqualify someone as a lay 

witness. See Ryan Dev. Co., 711 F.3d at 1170–71 (citing First Annapolis 

Bancorp, Inc. v. United States, 72 Fed. Cl. 204, 207 (Fed. Cl. 2006); Teen-Ed, 

Inc. v. Kimball Int’l, Inc., 620 F.2d 399, 402–04 (3d Cir. 1980)). Witnesses 

with professional expertise may qualify as lay witnesses if their testimony 

pertains to personal experience or first-hand knowledge. See, e.g., Ryan Dev. 

Co., 711 F.3d at 1170–71 (concluding that an accountant’s testimony was lay 

opinion because he used basic arithmetic and personal experience to calculate 

lost income and other claims); Weese v. Schukman, 98 F.3d 542, 550 (10th Cir. 

1996) (upholding the district court’s admission of a physician’s testimony as 

lay opinion where the testimony was helpful and drew from his general 

experience as a physician).

Dr. Tuttle testified that he did not consider Stryker’s hip stem and Link’s

hip stem to be competing products. He expressed this opinion based on his 

experience as an orthopedic surgeon. He recounted one incident when using 

Stryker’s product “basically ruined [a] patient’s life for a year” because the hip 

stem caused a fracture that became infected. App. vol. 30, at 5782. Dr. Tuttle

also explained that, though he prefers Link’s hip stem, he knows other surgeons 

who prefer different products.

Dr. Tuttle’s testimony is a close call. But we cannot say that the district 

court abused its discretion, especially given the “greater leeway” we give the 

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court to make evidentiary rulings in a bench trial. Att’y Gen. of Okla. v. Tyson 

Foods, Inc., 565 F.3d 769, 780 (10th Cir. 2009); cf. Tosco Corp. v. Koch Indus. 

Inc., 216 F.3d 886, 896 (10th Cir. 2000) (“[I]n bench trials questions raised 

relative to the admission or exclusion of evidence become relatively 

unimportant, because the rules of evidence are intended primarily for the 

purpose of withdrawing from the jury matter which might improperly sway the 

verdict.” (cleaned up)).

Dr. Tuttle’s opinion that the Stryker and Link hip stems were not 

competitive was rationally based on his perception that Stryker’s product 

harmed patients in certain scenarios. See Fed. R. Evid. 701(a). Dr. Tuttle 

testified that some surgeries may require different hip stems based on the 

patient’s needs and that surgeons may hold preferences between ostensibly 

similar devices, which helped the court determine that Stryker’s and Link’s hip 

stems were not interchangeable and thus not competitive. See Fed. R. Evid. 

701(b). And Dr. Tuttle’s opinion did not rely on a technical understanding of 

each device’s mechanics, but rather reflected his personal frustrations with 

Stryker’s product. See Fed. R. Evid. 701(c). So, as with the accountant’s 

testimony in Ryan Dev. Co., Dr. Tuttle’s testimony pulled from basic 

observations about patients’ individual needs and his personal experiences in 

the operating room. See 711 F.3d at 1170; see also James River, 658 F.3d at 

1214 (noting that lay opinion covers common observations). 

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Stryker also mischaracterizes the district court’s ruling in stating that the 

court relied “exclusively” on Dr. Tuttle’s testimony. Op. Br. at 29. In fact, the 

district court also considered Curtis’s opinion that Link hip stems were 

competitive, but simply elected to credit the doctor’s experience over “the 

businessman’s opinion of hip-stem interchangeability.” ORP Surgical, 2022 

WL 4298189, at *4. Further, Curtis testified that Stryker had an interest in 

securing optimal patient outcomes and that “it’s the surgeon’s choice on what 

they feel comfortable putting in th[e] patient.” App. vol. 32, at 6135. Viewed 

this way, Curtis’s testimony actually supports the conclusion that ORP’s 

occasional sale of Link hip stems abided by its agreement with Stryker, which 

under Section 6.4 granted ORP the “unfettered right to . . . distribute . . . 

products that are not competitive with any of the Products or that do not

conflict with the best interests of [Stryker].” App. vol. 7, at 1477 (emphasis 

added).

Thus, the district court did not abuse its discretion in admitting Dr. 

Tuttle’s testimony as lay opinion and relying on that opinion, in part, to 

conclude that the Link hip stem was not a competitive product.

Having reviewed all of Stryker’s factual and legal issues on appeal 

related to the breach-of-contract claims and all counterclaims, we conclude that 

the district court did not err. We affirm all findings of fact and conclusions of 

law dispensed in the district court’s order and judgment resolving ORP’s

breach-of-contract claims. We also affirm the portion of the order and judgment 

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requiring Stryker to pay ORP the restriction payments in the amount assessed 

by the district court.

We now turn to the matter of indemnification and the award of attorneys’

fees.

III. Attorneys’ Fees

Our task in this appeal is to determine whether the district court erred in 

construing the SRAs’ indemnification provision, Section 18, as requiring 

Stryker to indemnify ORP for the attorneys’ fees that ORP accrued in litigating

against Stryker. Stryker argues that the court so erred. And due to its erroneous 

interpretation, Stryker contends, the district court mistakenly awarded 

attorneys’ fees to ORP. For the reasons below, we agree with Stryker. We 

reverse the district court’s ruling on the meaning of Section 18 as a matter of 

law and vacate the award of attorneys’ fees.

A. Standard of Review

“The proper construction of a contract is a question of law we review de 

novo.” Penncro Assocs., Inc. v. Sprint Spectrum, L.P., 499 F.3d 1151, 1155 

(10th Cir. 2007). Under New Jersey law, which the parties agree controls, 

“[i]ndemnity contracts are interpreted in accordance with the rules governing 

the construction of contracts generally.” Ramos v. Browning Ferris Indus., 510 

A.2d 1152, 1159 (N.J. 1986). These rules dictate that we “enforce the contracts 

which the parties themselves have made,” lending all terms their plain and 

ordinary meaning. Kampf v. Franklin Life Ins. Co., 161 A.2d 717, 720 (N.J. 

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1960) (citation omitted); see M.J. Paquet, Inc. v. N.J. Dep’t of Transp., 794 

A.2d 141, 152 (N.J. 2002).

B. Section 18

The precise contractual language is paramount to our analysis; and so, 

unexpurgated, Section 18 begins: 

Each Party shall indemnify, defend, exonerate, and hold the other 

harmless from and against the other for any and all claims, suits, 

liability, loss, costs, expenses (including, without limitation, 

reasonable attorneys’ fees and expenses) or damages of any kind or 

nature howsoever caused by reason of any injury (whether to body, 

property, or personal or business character or reputation) sustained 

by any person or entity or to property by reason of or arising out of 

or relating to any breach of this Agreement by the indemnifying 

Party or any act, neglect, default, or omission by the indemnifying 

Party or by any of its or his agents, employees or other 

representatives (for the avoidance of doubt, in the case of Stryker 

Orthopaedics as the indemnifying Party, excluding any act, neglect, 

default or omission by Representative, any of his affiliates and any 

of their respective agents, employees or other representatives 

(including without limitation, the Representative Parties)).

App. vol. 7, at 1487–88, 1512.

Then it continues:

The indemnified Party shall provide prompt written notice to the 

indemnifying Party of any such suits or claims, provided that the 

indemnified Party’s delay in providing such notice to the 

indemnifying Party shall not discharge the indemnifying Party from 

the indemnification obligations hereunder, except to the extent such 

delay actually prejudices the indemnifying Party. The indemnifying 

Party shall undertake and conduct the defense of any such suit and 

shall keep the indemnified Party apprised of the progress of such 

suit. The indemnified Party shall be entitled to participate in such 

suit at its or his own expense, provided, however, if the indemnifying 

Party fails to defend such suit in a timely manner, the indemnified 

Party may defend such suit at the indemnifying Party’s expense. The 

indemnifying Party shall not be entitled to settle, compromise or 

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otherwise dispose of any such suit or claim without the prior written 

consent of the indemnified Party, with the exception of settlements 

solely for monetary damages to be paid by the indemnifying Party. 

Id.

The district court found the plain language of this provision to be 

“self-contradictory.” App. vol. 5, at 1057. Looking to the parties’ dueling 

interpretations of the language, the court decided that ORP’s reading carried 

the day. The court agreed with ORP that the “express language . . . provides

attorney’s fees for costs arising out of Stryker’s breach,” despite other language 

in the provision that suggests pure application to third parties (i.e., the notice 

provision). Id. at 1058.

Much of the debate before the district court centered on the question of 

whether first-party indemnification claims—that is, a claim between the 

contracted parties—are cognizable under New Jersey law at all. Stryker and 

ORP marshaled competing caselaw to convince the district court of their 

respective positions.

11 But New Jersey caselaw on first-party indemnity is 

11 In the district court and on appeal, Stryker’s argument that New Jersey 

law forbids first-party indemnification under Section 18 rests primarily on its 

interpretation of Travelers Indemnity Co. v. Dammann & Co., Inc., a Third 

Circuit case interpreting New Jersey contract law. 594 F.3d 238 (3d Cir. 2010). 

Specific to the contract provision before the Third Circuit, the court held that 

the language could not sustain first-party indemnification because if it did the 

words “indemnify,” “defend,” and “hold harmless,” would be rendered 

meaningless. Id. at 255. For the same reason, Stryker argues that Section 18 

cannot be read to encompass ORP’s claim for indemnity.

ORP counters with another case, CEM Business Solutions, Inc. v. BHI 

Energy, No. 21-CV-18543, 2022 WL 1017098, at *2–3 (D.N.J. Apr. 4, 2022), 

(footnote continued)

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something of a morass because the New Jersey Supreme Court has yet to rule 

on the issue. See Boyle v. Huff, Nos. A-1965-21, A-2046-21, 2023 WL 324796, 

at *6 (N.J. Super. Ct. App. Div. Jan. 20, 2023) (“Neither the New Jersey 

Supreme Court nor this court has ever held that indemnification provisions will 

not apply to first-party claims.”). In this void of authority, what remains is a 

hodgepodge of opinions from several courts, offering reasonings and 

conclusions as varied as the contracts they interpret. 12 But we needn’t weigh in 

on whether New Jersey law generally covers first-party indemnity claims

because we hold that the provision before us does not. 13

According to New Jersey law, we construe an indemnity provision for its

plain and ordinary meaning, the same as we would any other contractual 

where the court stated that indemnification provisions under New Jersey law 

may, and in that case did, apply to first-party suits.

12 Compare Atl. City Assocs., LLC v. Carter & Burgess Consultants, Inc., 

453 F. App’x 174, 180 (3d Cir. 2011) (applying New Jersey law), and Invs.

Sav. Bank v. Waldo Jersey City, LLC, 12 A.3d 264, 270–71 (N.J. Super. Ct. 

App. Div. 2011) (opposing first-party indemnity claims), with Boyle, 2023 WL 

324796, at *6, and CEM Bus. Sols., Inc., 2022 WL 1017098, at *3 (supporting 

first-party indemnity claims).

13 In Dammann, the Third Circuit commented that, though “no New 

Jersey case . . . actually permits an indemnitee to maintain the [first-party 

indemnification] claim that [the appellant] wishes to assert against [the 

appellee],” the court could not “hold that first-party indemnification claims . . . 

are categorically barred as a matter of law in New Jersey absent direct authority 

to that effect.” 594 F.3d at 255. We recognize that the Third Circuit 

deliberately cabined its holding in Dammann to leave the door open for future 

first-party indemnity claims presented under a different set of facts. See id.

(declining to implement “a sweeping rule” on first-party indemnification under 

New Jersey law). With that said, we needn’t opine on the matter further.

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provision. See Kieffer v. Best Buy, 14 A.3d 737, 742–43 (N.J. 2011). We take 

the language as we find it, not as we wish it were. See Kampf, 161 A.2d at 720; 

see also Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of 

Legal Texts 174 (2012) (divining that “it is no more the court’s function to 

revise by subtraction than by addition”). And given the murky, distended 

language laid before us in Section 18, we wade through it cautiously, word by 

word.

Holding a microscope up to Section 18, we begin with the designation,

“Each Party,” which everyone seems to agree contemplates the possibility of 

either contracted party as the indemnitor. App. vol. 7, at 1487, 1512. The 

language then goes on to say that the indemnitor “shall indemnify . . . and hold 

the other harmless.” Id. (emphasis added). In this context, “the other” naturally 

refers to the party positioned opposite the indemnitor: the indemnitee. And so 

Section 18 reads, “[The indemnitor] shall indemnify . . . and hold [the 

indemnitee] harmless . . . .” Id. So far so good; Section 18 reads like a standard 

indemnification provision. We continue: “[The indemnitor] shall indemnify . . . 

and hold [the indemnitee] . . . harmless from and against the other.” Id.

(emphasis added). The second appearance of “the other” is confounding. 

Nevertheless, we can infer that this second “the other” must revert back to the 

indemnitor. For we know that this time “the other” can’t be the indemnitee—

the indemnitee was just mentioned—therefore “the other” must be some person 

other than the indemnitee. But we also know that “the other” can’t be a third 

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party because “the other” (notably, not “another”) inheres a limited universe 

containing only two alternatives—or perhaps two opposing parties. Thus, here, 

“the other” must be the indemnitor. With that understanding, Section 18 now 

reads, “[The indemnitor] shall indemnify . . . and hold [the indemnitee] . . . 

harmless from and against [the indemnitor] for any and all claims . . . .” Id.

In this appeal, Stryker is the purported indemnitor and ORP is the 

purported indemnitee. So plugging Stryker and ORP into their assigned roles

inside our newly elucidated version of Section 18, we can comfortably read the 

provision to say that “[Stryker] shall indemnify, defend, exonerate, and hold 

[ORP] harmless from and against [Stryker] for any and all claims . . . 

(including, without limitation, reasonable attorneys’ fees and expenses) . . . .” 

Id. Under this refreshed reading, we agree with the district court that the outset 

of Section 18 appears to encompass, and even to limit, indemnification to 

first-party claims. Id.

But the first line of Section 18 is not the end of the story; and as we 

continue reading, our construction of the language diverges from the district 

court’s. After the first line, Section 18 proceeds to list the indemnifiable claims

available under the provision, including “any and all claims, suits, liability, 

loss, costs, expenses (including, without limitation, reasonable attorneys’ fees 

and expenses) or damages of any kind or nature howsoever caused by reason of 

any injury (whether to body, property, or personal or business character or 

reputation) sustained by any person or entity . . . by reason of . . . any breach of 

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this Agreement.” Id. (emphasis added). Two things strike us about this 

language. 

First, instead of calling the injured party, “the indemnified party”—the 

label used throughout the rest of Section 18—the provision describes the 

injured as “any person or entity.” Had the parties intended Section 18 to 

encompass first-party indemnity, we would expect the language to clarify that 

the indemnitee is (or at least can be) the one injured. In omitting “the 

indemnified party” from the list of the potentially injured persons, Section 18 

begins to lean away from first-party indemnification.

Second, the language states that any indemnifiable claim must be 

precipitated by an injury as defined by the parenthetical. That is, the obligation 

to indemnify under Section 18 is triggered only when the “person or entity”

sustains an injury “to body, property, or personal or business character or 

reputation.” Id.

This exhaustive list of potential injuries presents the first major hurdle 

for ORP. ORP argues initially that Stryker caused an injury that satisfies 

Section 18 because the language employs the broadening term “any” and New 

Jersey law recognizes breach of contract as legal injury per se. But these 

arguments ignore the enumerated list of injuries recognized by Section 18. The 

provision limits the class of injuries sufficient to trigger an indemnifiable claim 

as those to “body, property, or personal or business character or reputation.” Id.

Though it may be possible for ORP to have sustained one of these injuries 

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under a different set of facts, it’s not clear that ORP sustained such an injury

here. The only realistic contender that we can perceive is an injury to ORP’s 

property caused by Stryker’s failure to fulfill ORP’s contractual right to receive 

the restriction payments. But even so, it’s not at all obvious that Stryker’s 

refusal to pay the restriction payments injured ORP’s “property.” ORP carries 

the burden to show its entitlement to recover attorneys’ fees under Section 18

and, based on the limited list under Section 18, we conclude that it has failed to 

do so. See Green v. Morgan Props., 73 A.3d 478, 492 (N.J. 2013). 

The next hurdle for ORP is that the rest of Section 18 overwhelmingly 

suggests third-party indemnification. New Jersey law requires that we construe 

contract provisions “as a whole.” Dammann, 594 F.3d at 255 (quoting Hardy ex 

rel. Dowdell v. Abdul-Matin, 965 A.2d 1165, 1169 (N.J. 2009)). Doing so here, 

we deduce that the remaining clauses in Section 18, or the “ancillary clauses” 

as Stryker calls them, signal third-party indemnification. Op. Br. at 54. 

To start, every ancillary clause addresses the indemnified party’s rights 

in “such suits,” meaning the “suits” defined earlier in Section 18. The word 

“such” reveals that Section 18 contemplates only one type of suit. And the 

substance of the ancillary clauses firmly suggests suits brought by third parties.

The ancillary clauses provide for notice of suit to the indemnitee, progress 

updates of the suit to the indemnitee, the indemnitee’s right to participate in the 

suit at its own expense, and the indemnitee’s entitlement to give written 

consent prior to settlement. Clauses of this sort only make sense in a third-party 

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context, and other courts have routinely associated these types of clauses with 

third-party rights. See, e.g., Pfizer, Inc. v. Stryker Corp., 348 F. Supp. 2d 131, 

146 (S.D.N.Y. 2004) (portraying the indemnitee’s right to notice, right to 

conduct and control over claims, and right to employ counsel as “rights and 

obligations for indemnification for third party claims”); Oscar Gruss & Son, 

Inc. v. Hollander, 337 F.3d 186, 199–200 (2d Cir. 2003) (“A finding that the 

indemnification clause did not reach suits between the parties was also 

supported ‘by other provisions in the contract which unmistakably relate to 

third-party claims.’” (quoting Hooper Assocs., Ltd. v. AGS Computs., Inc., 548 

N.E.2d 903, 905 (N.Y. 1989))). So reading the provision as a whole, it appears 

that the parties intended to limit their indemnity obligations to claims raised by 

third parties. See George M Brewster & Son v. Catalytic Constr. Co., 109 A.2d 

805, 812 (N.J. 1954) (interpreting the terms of an indemnity provision “as a 

whole” to divine “the common understanding” of the parties); see also Millville 

Sav. Bank v. Malvern Bank, Nat’l Ass’n, No. 21-CV-13001, 2022 WL 279833, 

at *4 (D.N.J. Jan. 31, 2022) (applying Pennsylvania law) (“While the paragraph 

that Plaintiff cites is tremendously broad, the Court agrees with Defendant that, 

when read in context, it implicitly applies only to third-party 

indemnification.”); NAR Bus. Park, LLC v. Ozark Auto. Distribs., LLC, 430 

F. Supp. 3d 443, 461 (N.D. Ill. 2019) (“A contract may implicitly limit 

indemnification to third parties, however, if it contains language inconsistent 

with first-party indemnification.”).

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So after trudging through Section 18, we are left with introductory 

language suggesting that an odd first-party indemnity coverage is in play, but 

also with ancillary clauses talismanic of third-party indemnification. When 

faced with at least two reasonable yet opposing interpretations of a contract,

New Jersey law instructs that we find the language ambiguous. See M.J. Paquet 

Inc., 794 A.2d at 152 (“An ambiguity in a contract exists if the terms of the 

contract are susceptible to at least two reasonable alternative interpretations.” 

(cleaned up)). So we find Section 18 ambiguous and interpret the ambiguity

according to typical canons of contract construction. 14 Kieffer, 14 A.3d at

742–43 (“The objective in construing a contractual indemnity provision is the 

same as in construing any other part of a contract . . . .”).

Turning to the canons, in New Jersey, courts must construe ambiguous 

indemnification provisions against the indemnitee. Id. at 743; Litton Indus., 

Inc. v. IMO Indus., Inc., 982 A.2d 420, 427–28 (N.J. 2009). With this 

preference in mind, we are compelled to construe the provision against 

indemnification, and therefore against ORP. On that basis, we vacate the award 

of reasonable attorneys’ fees granted to ORP. Because ORP cannot recover any 

14 All the typical canons apply, except that, contrary to New Jersey’s 

convention to construe ambiguity against the drafter, Roach v. BM Motoring, 

LLC, 155 A.3d 985, 991 (N.J. 2017), we will not automatically construe the 

ambiguity against Stryker because of the SRAs’ Section 28: “The Parties 

acknowledge that this Agreement is the result of negotiations so neither Party 

shall avail itself of any rule of construction that would resolve ambiguities 

against a drafting party.” App. vol. 7, at 1489, 1514.

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fees under Section 18, Stryker’s remaining challenges to specific categories of 

ORP’s fees are moot.

Yet we acknowledge the district court’s caveat that if the SRAs had not 

required Stryker to pay ORP attorneys’ fees, then the court “would likely have 

ordered defendant to reimburse plaintiffs for the attorney’s fees and costs 

plaintiff incurred during the discovery process.” ORP Surgical, 2022 WL 

4298189, at *14. Owing deference to the district court’s “inherent powers” to 

manage discovery, we remand this case to the district court to determine and 

order sanctions if the court sees fit. See Chambers v. NASCO, Inc., 501 U.S. 32, 

45–46 (1991) (reviewing the circumstances in which “federal courts have 

inherent power to assess attorney’s fees against counsel,” including “when a 

party has acted in bad faith,” specifically “by delaying or disrupting the 

litigation” (cleaned up)).

IV. ORP’s Cross-Appeal

On cross-appeal, ORP raises a single claim: the district court erred in 

awarding nominal damages for Stryker’s breach of the non-solicitation/nondiversion provision. We affirm the district court.

A. Standard of Review

The party seeking damages bears the burden of proof. Caldwell v. 

Haynes, 643 A.2d 564, 571 (N.J. 1994). We give “considerable deference” to 

the damages assessed by the trier of fact, especially when damages are

uncertain. Maul v. Kirkman, 637 A.2d 928, 939 (N.J. Super. Ct. App. Div. 

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1994) (citing Baxter v. Fairmont Food Co., 379 A.2d 225, 229–230 (N.J. 

1977)).

B. Nominal Damages

The district court found that Stryker solicited and diverted ORP reps in 

breach of the TSRA. But shifting gears from liability to damages, the court 

struggled to measure the damages owed to ORP from Stryker’s breach. The 

assessment of damages was the sticking point for the district court and is the 

source of ORP’s cross-appeal. 

At trial, the district court asked ORP to articulate the “economic 

consequence” of Stryker’s solicitation and diversion. App. vol. 33, at 6570.

ORP’s expert had offered a couple of theories, and Stryker’s expert took a stab 

as well. But ultimately, the court felt that “[n]either party provided anything 

useful,” and discerned nothing from the record from which it could measure the 

damages ORP incurred from Stryker’s solicitation and diversion. ORP Surgical, 

2022 WL 4298189, at *10. 

Principally, the court found “insufficient evidence” that Stryker’s tactics 

actually caused ORP’s reps to resign and accept positions at Stryker. Id. at *11. 

In reaching this determination, the court recognized that Petrides’s termination 

of the TSRA deprived the reps of most of their income opportunities. The court 

noted that much of the reps’ training and expertise was particular to Stryker’s 

products, which the reps could no longer sell. So naturally, the court concluded,

those reps sought positions in-house with Stryker after the TSRA terminated.

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The court’s finding that Stryker’s actions were not the but-for cause of 

the ORP reps jumping ship stymied its ability to measure compensatory 

damages. Compensatory damages contemplate the position the nonbreaching 

party would have been in but for the breach, but here the court determined that 

the reps would have left even without Stryker’s breach. So the court concluded 

that compensatory damages were inapt to remedy ORP’s injury. And even if 

compensatory damages had been on the table, the court wasn’t convinced by 

any of ORP’s damages proposals. Finding that ORP failed to carry its burden in 

proving damages, the court instead awarded nominal damages, which is the 

prescribed alternate remedy under New Jersey law. See Salt Lake Trib. Publ’g 

Co., LLC v. Mgmt. Plan., Inc., 454 F.3d 1128, 1141 (10th Cir. 2006) 

(“Whenever there is a breach of contract, the law ordinarily infers that damages 

ensued, and, in the absence of actual damages, the law vindicates the right by 

awarding nominal damages.” (cleaned up)).

ORP challenges the district court’s nominal damages award and argues 

for compensatory damages. But from the jump, Stryker asserts that ORP waived 

this argument by neglecting to preserve it in its Rule 59(e) post-judgment 

motion.

We pause to consider preservation and Rule 59(e).

Under Rule 59(e), a party may move the court “to alter or amend a 

judgment” within 28 days after the entry of judgment. Fed. R. Civ. P. 59(e). A 

Rule 59(e) motion “is appropriate where the court has misapprehended the 

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facts, a party’s position, or the controlling law.” Servants of Paraclete v. Does, 

204 F.3d 1005, 1012 (10th Cir. 2000). When a party raises one of these 

challenges, the motion preserves that issue for appellate review. AdvantEdge

Bus. Grp. v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233, 1238 (10th 

Cir. 2009); cf. Elm Ridge Expl. Co., LLC v. Engle, 721 F.3d 1199, 1219 (10th 

Cir. 2013) (deciding that a Rule 59(e) motion could preserve issues for appeal 

where the appellant neglected to renew its motion for judgment as a matter of 

law).

ORP’s Rule 59(e) motion raised two issues for the district court to 

reconsider: (1) the sanctions order for Special Master’s fees, and (2) damages 

for soliciting and diverting Demorset in breach of the JSRA. The first issue is 

not relevant to ORP’s cross-appeal. 

On the second issue, ORP attempted to distinguish Demorset’s hiring 

from the other ORP reps Stryker hired. For the other reps, ORP acquiesced to

the district court’s reasoning that “only nominal damages should be awarded” 

because ORP lacked sufficient evidence to show Stryker caused those reps to 

leave. App. vol. 2, at 367. ORP parroted the court’s judgment that ORP’s 

terminating the TSRA “left the sales reps without the ability to continue to sell 

Stryker products,” and thus that the reps’ seeking jobs at Stryker was 

inevitable. Id. at 368 (citation omitted). ORP then used that segment of the 

district court’s judgment as a springboard for its argument that Demorset’s 

hiring was different; specifically, ORP alleged that “this reasoning does not 

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apply” to Demorset. Id. at 360. According to ORP, Demorset presented a 

different case because Stryker hired him in breach of the JSRA, which Stryker 

terminated. And so, ORP moved the court to reconsider awarding actual 

damages for Stryker’s diverting Demorset, which flowed solely from Stryker’s 

breach, unlike the other hirings that were caused at least partly by ORP’s own 

actions.

Before us, ORP changes tack and contends that nominal damages were an

inadequate remedy for Stryker’s diversion of the other reps, without mentioning

Demorset at all. This is not the argument ORP made in its Rule 59(e) motion. 

In the post-judgment motion, not only did ORP not challenge the nominal 

damages remedy, but it accepted the district court’s reasoning—the same 

reasoning that ORP now claims to constitute legal error. This dissonance 

between ORP’s 59(e) arguments and its appellate arguments supports Stryker’s 

position that the nominal damages issue is not properly before us on appeal. See 

Little v. Budd Co., Inc., 955 F.3d 816, 821 (10th Cir. 2020) (noting that 

arguments waived for appeal include “a new theory on appeal that falls under 

the same general category as an argument presented at trial” (citation omitted)).

“Our preservation rules are part of the ‘winnowing process’ of litigation 

that permits a court to ‘narrow what remains to be decided.’” United States v. 

Walker, 918 F.3d 1134, 1151 (10th Cir. 2019) (quoting Exxon Shipping Co. v. 

Baker, 554 U.S. 471, 487 n.6 (2008)). In doing so, we strongly disfavor parties’ 

attempts to use this court as “a second-shot forum” for mounting theories 

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unexplored in the district court. Fish v. Kobach, 840 F.3d 710, 730 (10th Cir. 

2016) (cleaned up). That said, we retain discretion to reach the merits of any 

unpreserved issue. Johnson v. Spencer, 950 F.3d 680, 707 (10th Cir. 2020).

Throughout the proceedings in district court, ORP advocated for 

compensatory damages in recovery for Stryker’s solicitation and diversion of 

its sales reps. ORP offered multiple theories on how to calculate these damages, 

which the court heard and considered. See Niemi v. Lasshofer, 770 F.3d 1331, 

1346 (10th Cir. 2014) (“It is a general rule that a federal appellate court will 

not consider an issue which was not presented to, considered or decided by the 

trial court.” (citation omitted)). Stryker, too, had the opportunity to present its 

own evidence and countervailing calculations for ORP’s loss, which weighs in 

favor of us hearing ORP’s unpreserved damages claim. See Lyons v. Jefferson 

Bank & Tr., 994 F.2d 716, 720 (10th Cir. 1993) (stressing that parties should 

have “the opportunity to offer all the evidence that they believe relevant to the 

issues” and “present whatever legal arguments [they] may have” before the 

issues proceed on appeal (citation omitted)). Further, we confine our analysis to 

the legal sufficiency of nominal damages as the remedy for ORP’s injury, not 

the amount of damages as a matter of fact. See Stahmann Farms, Inc. v. United 

States, 624 F.2d 958, 961 (10th Cir. 1980) (recognizing that preservation 

principles are “relaxed somewhat where the question is one of law”). So even 

though ORP fumbled the ball under Rule 59(e), we address the legal merits of 

ORP’s cross-appeal.

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Moving to the merits, ORP alleges that (1) the district court erred in 

determining that Stryker’s solicitations did not cause ORP’s reps to leave;

(2) the court misconstrued the contractual terms “divert,” “hire,” and “poach”;

and (3) the court wrongly rejected two valid calculations for compensatory 

damages, which led to an inadequate remedy in the form of nominal damages.

For the reasons stated above, we limit our analysis to the legal questions 

presented on cross-appeal. To that end, we review de novo ORP’s claims under 

New Jersey law. See Black & Veatch Corp. v. Aspen Ins. (Uk) Ltd., 882 F.3d 

952, 957 (10th Cir. 2018). 

At the outset, we accept as true the district court’s finding that Stryker’s 

solicitation and diversion tactics did not cause the ORP reps to resign and 

accept jobs at Stryker. 15 Relatedly, the court concluded that “Stryker did not 

breach the contract by poaching ORP reps, it broke the contract by soliciting 

and diverting” them. ORP Surgical, 2022 WL 4298189, at *10. ORP asserts 

that this constituted legal error because in distinguishing between “divert[ing]”

and “poach[ing]” the court misapprehended the contractual language. Answer 

Br. at 74. And further, ORP accuses the district court of denying damages 

15 ORP casts its first argument on cross-appeal as a legal issue, when 

truly it challenges the district court’s factual findings. As we’ve addressed 

already, ORP’s preservation of the issues on cross-appeal is tenuous at best. 

What’s more, in its Rule 59(e) motion, ORP accepted the district court’s 

finding that Stryker’s tactics were not the cause of ORP’s sales reps leaving. So 

we decline to second guess the district court’s findings on this point.

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because they were “difficult to quantify,” which ORP contends was likewise 

legal error. 16 Id. at 76. 

Reviewing the disputed language with “fresh eyes,” we don’t perceive 

how the district court misconstrued the SRAs’ language. Kieffer, 14 A.3d at 

742. But more importantly, we struggle to see why it matters. ORP argues that 

in rejecting Stryker’s poaching as the source of its damages, the court 

mistakenly disregarded the “economic impact” of Stryker hiring the ORP reps. 

Answer Br. at 75 (quoting App. vol. 5, at 1089). Put differently, ORP posits 

that had the district court correctly construed the meaning of “diverting,” ORP 

would have received its desired damages award. That is not how we read the 

district court’s decision.

16 ORP relies on Wolpaw v. General Accident Insurance Co., 639 A.2d 

338 (N.J. Super. Ct. App. Div. 1994), in asserting that New Jersey law 

obligated the district court to “fashion a remedy” even when damages were 

uncertain. Resp. Br. at 76; ORP Reply Br. at 14. But Wolpaw is distinguishable. 

There, the court tolerated an inexact damages calculation because the 

uncertainty of the amount stemmed directly from the breach. Wolpaw, 639 A.2d

at 341 (“[W]here the breach itself destroys the injured party’s ability to prove 

damages with exactitude, the proof may be inexact.”). The court observed that 

the plaintiff’s damages could not “even be approximated” because, in that case,

assessing damages would have required the plaintiff “to prove the outcome of a 

trial that never occurred.” Id.

Unlike Wolpaw, Stryker’s breach did not prevent ORP from calculating 

its damages. ORP did calculate damages, under three separate theories, two of 

which it reargues on appeal—one amount for $4.7 million and another for 

$907,000. The court simply rejected these theories due to various logical and 

factual flaws. Thus, the court didn’t shun any obligation to fashion a remedy, 

ORP failed to meet its burden to prove damages by a preponderance of the 

evidence. See Caldwell, 643 A.2d at 571.

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The court found it indisputable that Stryker solicited and diverted ORP 

employees and thus breached the contract. Having established liability, what 

mattered next was ORP’s ability to state coherently the economic consequence 

of that breach. But on that score, ORP came up short. ORP’s damages expert 

offered three alternative theories for awarding damages—fair market value, lost 

profits, and disgorgement—and the court rejected all of them. And more 

specifically as to each theory, the court found that the proposed amounts were

either derived from flawed factual assumptions or otherwise unsupported by the 

evidence. So the court did not reject compensatory damages based on a 

divergent understanding of the words diverting or poaching or even based on 

the difficulty in calculating damages. Rather, the court declined to award

compensatory damages because ORP failed to carry its burden in proving the 

economic consequence of Stryker’s breach. And so, finding that its hands were 

tied, the court looked to governing New Jersey law and concluded that nominal 

damages provided an adequate substitute remedy.

This case comes to us from an especially complex, fact-bound bench 

trial. Particularly on damages, the court heard voluminous testimony from 

ORP’s and Stryker’s expert witnesses. We recognize that the trial judge 

occupied the prime seat to evaluate this evidence, along with its “‘intangibles’

. . . e.g., credibility, demeanor, feel of the case,” from which to assess the

damages amount—a factual question under New Jersey law. Dombroski v. City 

of Atl. City, 706 A.2d 242, 246 (N.J. Super. Ct. App. Div. 1998) (citations 

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omitted); see Baxter, 379 A.2d at 229–30. And the court’s coming up empty on 

compensatory damages due to insufficient facts, is itself a fact-finding that we 

will not disturb on appeal. See Baxter, 379 A.2d at 230 (prescribing “corrective 

judicial action” on damages awarded by the trier of fact “only upon the 

predicate . . . that there has been a manifest miscarriage of justice”). The only 

remaining question for us is whether the district court erred when it concluded 

that nominal damages were an adequate substitute remedy for Stryker’s breach

of the non-solicitation/non-diversion provision.

In New Jersey, “[a]ctual damages . . . refers to the real losses flowing 

from” the breaching party’s conduct. W.J.A. v. D.A., 43 A.3d 1148, 1154 (N.J. 

2012). Taking the district court’s factual conclusions as we find them, we 

ascertain that ORP has failed to prove the real losses that flowed from Stryker’s 

solicitation and diversion of the reps. Yet ORP indisputably suffered a breach, 

and so we infer that damages ensued. See Nappe v. Anschelewitz, Barr, Ansell 

& Bonello, 477 A.2d 1224, 1228 (N.J. 1984). When a nonbreaching party “has 

not proved a compensable loss,” New Jersey law holds that “[n]ominal damages 

serve the purpose of vindicating” the party’s legal rights. Graphnet, Inc. v. 

Retarus, Inc., 269 A.3d 413, 422 (N.J. 2022) (cleaned up). 

ORP alleges that the district court barred relief when it awarded nominal 

damages. But in New Jersey, nominal damages are a “legal remedy.” Id. So 

ORP got relief, just not the relief it wanted. After reviewing ORP’s claims on 

cross-appeal and canvassing the trial record, we discern no error—legal or 

Appellate Case: 22-1430 Document: 010110995568 Date Filed: 02/06/2024 Page: 52
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factual—committed by the district court. The award of nominal damages for 

Stryker’s breach of the non-solicitation/non-diversion provision is affirmed.

CONCLUSION

For the reasons stated, we affirm in part and reverse in part. The case is 

remanded for further proceedings in accordance with this opinion.

Appellate Case: 22-1430 Document: 010110995568 Date Filed: 02/06/2024 Page: 53