In the

United States Court of Appeals

For the Seventh Circuit

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No. 07-2758

JOHN WASSON,

Plaintiff-Appellant,

v.

PEABODY COAL COMPANY,

Defendant-Appellee.

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Appeal from the United States District Court 

for the Southern District of Indiana, New Albany Division.

No. 4:02-CV-0090—Sarah Evans Barker, Judge.

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ARGUED MAY 16, 2008—DECIDED SEPTEMBER 8, 2008

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Before BAUER, POSNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge. John Wasson sued Peabody Coal

Company for breach of contract, claiming that it underpaid

the royalties to which he was entitled for coal mined from

his property. After a bifurcated jury trial resulting in a

$350,000 verdict in Wasson’s favor, the district court

granted Peabody’s renewed motion for judgment as a

matter of law. Wasson appeals, and we affirm.
2 No. 07-2758

I 

Wasson leased coal-mining rights to Peabody (or one

of its predecessors-in-interest) in exchange for royalty

payments calculated in accordance with a lease agreement. Believing that Peabody had underpaid the

royalties due for coal mined from 1996 through January

2000, Wasson filed suit in federal court against Peabody

and Indianapolis Power and Light (“IP&L”), alleging

antitrust violations. In a more direct effort to collect the

additional royalties he claimed, he also raised a breach-ofcontract claim against Peabody. In August 2006, the

district court granted summary judgment in favor of

Peabody and IP&L on the antitrust claims, causing IP&L to

be dismissed from the suit. At the same time, it denied

Peabody’s motion for summary judgment on the breach

of contract claim. The court decided to bifurcate the

liability and damages stages of the trial, and so it first

submitted to the jury the question whether Peabody had

breached the agreement. The jury answered yes, and then

went on in the second phase to award Wasson damages of

$350,000. While this was a substantial sum, it paled in

comparison to the nearly $10 million he had requested.

Peabody, in the meantime, had asked the court at every

available opportunity for judgment as a matter of law. See

FED. R. CIV. P. 50. On Peabody’s fourth try, the district

court granted the motion and reduced the jury’s award

to $965.62, the amount Peabody acknowledged owing

based on its own expert’s review of the data.

Distressed to see his victory snatched away from him,

Wasson has appealed. He argues that the district court

erred in denying his motion for a continuance just prior
No. 07-2758 3

to trial (and denying his motion to reconsider that ruling), because, he said, he needed additional time to

review recently produced discovery materials. He also

asserts that the court erred in barring his expert witness

from testifying. Finally, he contends that the court should

not have set aside the jury’s award of damages, because

there was sufficient evidence for a reasonable jury to

find in his favor. We address each argument in turn.

II

Wasson faces long odds on his first point, given the

fact that we review a trial court’s denial of a motion for

continuance for an abuse of discretion. Research Sys. Corp.

v. IPSOS Publicite, 276 F.3d 914, 919 (7th Cir. 2002). The

parties in this relatively straightforward case have been

battling over discovery for years. The supervising magistrate judge actually granted part of Wasson’s motion to

compel; unable to resist the obvious metaphors, the

judge observed that “each side has thrown a little coal

sludge into the discovery dispute processing hopper.”

Wasson complains nevertheless that when making

boxes filled with papers available to him in which he could

find the data he needed, Peabody did not furnish enough

detail about the precise location of the requested records.

Wasson was partly to blame for this, however, because

his interrogatories were very broad in scope. In an effort

to home in on the central issues, the magistrate judge

asked Wasson what he was really looking for; Wasson

responded that he was trying to substantiate the “Mancil

Robinson Report,” a summary of royalties that he had
4 No. 07-2758

received from Peabody years earlier when he first disputed its payments. Consequently, the magistrate judge

ordered Peabody to “file supplemental answers to Interrogatory Nos. 8 and 28 based upon The Mancel-Robinson

[sic] Report and all underlying documentation used in

producing that report.”

As Peabody points out, this order may have expanded

the original interrogatories. For example, Interrogatory

No. 28 requested production of “all data and information

used to calculate any and all royalty payments.” The

question did not mention or allude to the Mancil Robinson

Report at all. In fact, Peabody asserts, it did not use the

Mancil Robinson Report to calculate royalty payments.

Thus, while there was substantial (perhaps overwhelming) overlap among the documents responsive to the

interrogatory as originally framed and as recast in the

magistrate judge’s order, it was foreseeable—in fact,

likely—that the documents that were responsive to the

two questions would not be identical. This explains the

presence of “new” documents produced shortly before

trial in response to the motion to compel. (Although

Peabody did not cross-appeal based on the magistrate

judge’s arguable expansion of the scope of the interrogatory, the difference between the original demand and the

order is relevant to the question whether Peabody was

playing foul with Wasson by producing new documents

shortly before trial.) In any event, Wasson had ample

time to review the documents in the original production

to determine whether additional discovery was necessary

before the expiration of the discovery deadline, but he

chose to sit on the matter.
No. 07-2758 5

Wasson cannot meet the standard for reversal on this

ground because he cannot show that he suffered “changed

circumstances to which a party cannot reasonably be

expected to adjust without an extension of time.” N. Ind.

Pub. Serv. Co. v. Carbon County Coal Co., 799 F.2d 265, 269

(7th Cir. 1986). Moreover, we agree with the district court’s

description of Wasson’s strategy in disputing and

redisputing this discovery issue:

We find it telling that in Wasson’s responsive brief

to Peabody’s post-trial motion [for judgment as a

matter of law] he does not identify any specific evidence introduced at trial which would support the

jury’s verdicts. Rather, his largely non-responsive

rehash of long-ago-resolved discovery disputes demonstrates Wasson’s continued preoccupation with

finding a “smoking gun” in hopes of substantiating

his theories about the alleged but unproven wrongs

Peabody visited upon him.

This court has emphasized that “district judges must be

allowed considerable leeway in scheduling civil cases, and

therefore in denying continuances that would disrupt

their schedules . . . .” Research Sys. Corp. v. IPSOS Publicite,

276 F.3d at 920. In this case, which was filed over five

years ago, the denial of a continuance was not an abuse

of discretion.

III

We also review the district court’s evidentiary rulings

only for abuse of discretion, and we “will not reverse

unless the record contains no evidence upon which the
6 No. 07-2758

trial judge rationally could have based his decision.”

United States v. Savage, 505 F.3d 754, 760 (7th Cir. 2007). To

support his breach of contract claim, Wasson attempted

to introduce the expert testimony of Robert Swan, his

accountant, although the theory underlying Swan’s expert

witness report was actually Wasson’s. The report asserted

that the coal price Peabody was using to calculate

Wasson’s royalties was too low. This conclusion was

based on the difference between the “average gross

invoice sales price” used by Peabody when calculating

royalties for August 1999 and the fuel cost data reported

for that same month by IP&L, one of Peabody’s customers,

to the Federal Energy Regulatory Commission (“FERC”).

The district court based its decision to exclude this

testimony on several critical shortcomings. First, the

analysis included only a single Peabody customer. (Even

if it had included all the FERC reports filed, non-utility

customers are not required to file FERC reports, and so the

data would still have been incomplete.) Moreover, the

figures for a month from this one customer were extrapolated to arrive at a number supposedly representing

twenty years of alleged underpayment. (Even before

sending the case to the jury, the district court reduced the

claim period to five years, in keeping with the statute of

limitations.) Peabody’s expert witness, an economist,

testified that Swan’s extrapolation did “not meet scientific

standards for use of mathematical statistics.” Finally, Swan

admitted that he had never previously seen or worked

with a FERC report, did not know what items were included or excluded in the fuel cost data found in such

reports, and was unaware of any occasion where some-
No. 07-2758 7

one else had used FERC data to test the accuracy of a

royalty payment.

We have no trouble endorsing the district court’s decision to exclude Swan’s testimony—indeed, had the court

admitted it, we would probably have reversed that decision for an abuse of discretion. Swan’s opinion was not

“based upon sufficient facts or data,” nor was it “the

product of reliable principles and methods,” as required

by FED. R. EVID. 702.

IV

Finally, we give de novo review to a district court’s

grant of judgment as a matter of law. Castellano v. Wal-Mart

Stores, Inc., 373 F.3d 817, 819 (7th Cir. 2004). We agree

with the district court that the jury’s damages award

must be set aside because it was based on nothing but

speculation. Wasson says that this is not so, because his

trial exhibit 100 thoroughly summarized his evidence

on damages. But a review of this exhibit only reveals all

the problems that so concerned the district court. The

exhibit is nothing more than Wasson’s scratch-paper workup of his guess at determining his damages. For example, when Wasson could not find the number of “barge”

tons mined during the relevant periods, he simply copied

the number of “rail” tons mined into his “barge” tally.

Absolutely nothing suggests that the two numbers were

necessarily the same.

It seems that there were no barge tons accounted for

in the Mancil Robinson Report because the barge tons

and the rail tons were erroneously lumped together to
8 No. 07-2758

produce the number shown for rail tons. The difference

matters: royalties for barge tons are slightly higher

than those for rail tons. This lumping of both kinds of

shipment into the rail category resulted in the $965.62

underpayment that Peabody’s expert witness discovered

and that Peabody thereafter conceded owing. In addition,

Wasson also used an absurdly high coal price for all his

calculations, $107.26 per ton, simply because he found one

entry for one month among Peabody’s documents

showing that price. The prevailing price for all the periods

in question was almost an order of magnitude lower,

hovering around $18 or $19 per ton. The $107 per ton

price turned out to be an accounting artifact arising

from a “quality adjustment” for a particular buyer on a

particular occasion.

The district court held that it could “identify no reasonable basis in the evidence for the jury’s $350,000 damage

award to Mr. Wasson.” Neither can we. The judgment

of the district court is AFFIRMED.

9-8-08