Aristo Vojdani v. Pharmasan Labs, Incorporated , 741 F.3d 777 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 13-1354 and 13-1242
ARISTO VOJDANI and
IMMUNOSCIENCES LAB, INC.,
Plaintiffs-Appellees/Cross-Appellants,
v.
PHARMSAN LABS, INC. and
NEUROSCIENCE, INC.,
Defendants-Appellants/Cross-Appellees.
Appeals from the United States District Court for the
Western District of Wisconsin.
No. 10-cv-37-wmc — William M. Conley, Chief Judge.
ARGUED SEPTEMBER 10, 2013 — DECIDED DECEMBER 20, 2013
Before WOOD, Chief Judge, and EASTERBROOK and
HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Plaintiffs Immunosciences Lab,
Inc. and its owner, Dr. Aristo Vojdani, were in the business of
developing and selling medical tests and testing materials. In
2007, defendants Pharmsan Labs, Inc. and NeuroScience, Inc.
—sister companies offering medical testing to consumers—
2 Nos. 13-1354 and 13-1242
wanted to expand their offerings. Vojdani and
Immunosciences (we refer to them collectively as “Vojdani”)
and Pharmsan and NeuroScience (collectively “NeuroScience”)
decided to collaborate, but the business relationship fell apart
within two years.
These appeals concern two trials and two claims for breach
of contract brought by Vojdani against NeuroScience. In the
first trial, a jury decided the first claim—that NeuroScience did
not pay Vojdani what it had contracted to pay for medical
testing materials—in favor of NeuroScience. But the district
court ordered a new trial on that claim, concluding that this
verdict was undermined by flawed special verdict questions.
The jury in the second trial found for Vojdani but awarded him
much less money than he was seeking. NeuroScience contends
on appeal that the court’s grant of a new trial was an abuse of
discretion. Vojdani cross-appeals, arguing that the court
abused its discretion by allowing NeuroScience to argue in the
new trial that the parties had orally modified their written
contract.
The second claim is that NeuroScience breached a separate
confidentiality agreement by continuing to use Vojdani’s
testing methods after the parties ended their business relation-
ship. The jury in the first trial awarded Vojdani nearly $1.2
million on this claim, but the district court granted judgment
as a matter of law for NeuroScience, explaining that Vojdani
had relied on an impermissible damages theory. As part of his
cross-appeal, Vojdani seeks reinstatement of the original
verdict on this claim.
Nos. 13-1354 and 13-1242 3
We affirm the district court’s judgment in all respects. As
we explain in Part I, the court acted within its discretion in
granting the new trial on the first claim and including Neuro-
Science’s contract modification theory within the scope of the
second trial. We explain in Part II that the award for breach of
the confidentiality agreement was not based on a permissible
measure of damages that had actually been presented to the
jury, so the district court correctly entered judgment as a
matter of law for NeuroScience on that claim.
I. First Claim — Breach of the Letter of Intent
A. Factual and Procedural Background
Vojdani and NeuroScience signed a “letter of intent” in
June 2007, and despite that provisional title, both sides agree
it was a binding contract. The letter of intent provided in part
that Vojdani’s company would ship medical testing plates and
components to NeuroScience accompanied by “an invoice for
the material at 50% of client price.” The parties would “absorb
their own costs of operation,” and NeuroScience would pay the
invoices “according to [NeuroScience’s] monthly sales.” The
agreement in the letter was set to expire after 180 days, during
which time a longer-term agreement was to be hammered out.
After the parties signed the letter of intent, Vojdani regu-
larly shipped testing plates and components to NeuroScience
and submitted monthly invoices for 50 percent of the price that
NeuroScience would charge customers for each test. NeuroSci-
ence interpreted its obligation to pay Vojdani “50% of client
price” according to its “monthly sales” as an obligation to pay
only for those tests it actually sold. Vojdani accepted these
payments without complaint and never included a past-due
4 Nos. 13-1354 and 13-1242
amount on any invoice. That pattern continued for the 180
days covered by the letter of intent and during an oral exten-
sion of the agreement that lasted for several months. No
written agreement ever replaced the letter of intent, though
several draft agreements were exchanged. In June 2009,
NeuroScience notified Vojdani that it would no longer do
business with him. All shipments and payments then ceased.
Vojdani responded to NeuroScience’s decision to sever ties
with him by suing in federal court for breach of contract.
Federal jurisdiction was based on diversity of citizenship.
(Vojdani and Immunosciences are citizens of California;
Pharmsan and NeuroScience are citizens of Wisconsin.) Of the
numerous claims that went to trial, the first of the two involved
in these appeals was that NeuroScience breached the letter of
intent by not paying Vojdani’s invoices in full.
In the first trial, NeuroScience attempted to defeat this
claim by arguing that the ambiguous terms of the letter of
intent did not require full payment of the invoices. Vojdani’s
acceptance of payments for only those tests that were actually
sold, without complaining that he was being short-changed,
reflected the parties’ actual agreement according to NeuroSci-
ence. In the alternative, NeuroScience argued, even if the terms
of the letter of intent did in fact require payment in full, the
parties had modified the terms in line with what NeuroScience
had actually paid.
On this claim, the first jury was instructed on contract
modification, including the point that contracts can be modi-
fied orally or by “conduct or other means of expression”
indicating that “strict performance was not insisted upon.” The
Nos. 13-1354 and 13-1242 5
problem here arose from the design of the special verdict form,
which did not include any question about contract modifica-
tion. Although NeuroScience had asked (somewhat vaguely)
for questions that would allow the jury to consider “what
happened” after the contract’s execution and had opined that
the proposed questions were confusing, the court dismissed
the company’s concerns. The jury was asked on this claim only:
(1) whether Vojdani had proven by a preponderance of the
evidence that NeuroScience “agreed in the June 21, 2007 letter
of intent … to pay plaintiff the invoiced amount for each
[testing] plate sent to defendant NeuroScience whether the
plate was sold to a client or not,” and (2) whether Vojdani had
proven by a preponderance of the evidence that NeuroScience
“did not pay the plaintiff the full amount of the invoices … .”
The jury answered the first question yes but answered the
second no, thus reaching a verdict for NeuroScience on the
claim.
Vojdani then filed a motion under Federal Rule of Civil
Procedure 59(a) seeking a partial new trial on this claim. He
argued that the manifest weight of the evidence was against
the jury’s answer of no to the second verdict question. Neuro-
Science’s witnesses, he pointed out correctly, had conceded
that the invoices were not paid in full. NeuroScience argued
that the jury’s answer to the second question was its way of
accounting for the contract’s modification.
The district court granted Vojdani’s motion because
NeuroScience admittedly had not paid the full amount of the
invoices. But the court settled on a broader scope for the new
trial than Vojdani wanted. The new jury, unlike the first, would
be asked expressly whether the parties had modified the
6 Nos. 13-1354 and 13-1242
written contract after its execution. The first jury’s yes answer
to the first special verdict question—whether NeuroScience
had agreed in the letter of intent to pay the invoices in full—
would stand. Vojdani objected to any question about modifica-
tion. He argued that NeuroScience had waived such questions
by not requesting them in the first trial. The court responded
that NeuroScience had sufficiently preserved the issue.
Just before the second trial, the case was reassigned from
Judge Crabb to Chief Judge Conley for scheduling reasons. The
second jury found in response to more specific verdict ques-
tions that the parties had orally modified the contract six
months after its execution so as to allow NeuroScience to pay
for only those tests it actually sold. Based on stipulations about
the amount invoiced before the modification and the amount
NeuroScience actually paid, the district court entered judgment
in favor of Vojdani for $187,000 on this claim.
B. Analysis
NeuroScience argues on appeal that the district court’s
grant of the partial new trial should be reversed. In its view,
the jury’s finding that Vojdani had not “proven by a prepon-
derance of the evidence that defendant NeuroScience did not
pay the full amount of the invoices” could be understood as an
acknowledgment that the parties had modified the contract.
The court was obliged to read the verdict that way, NeuroSci-
ence contends, and thereby to reconcile the evidence with the
verdict.
We review for abuse of discretion a district court’s decision
to grant a new trial under Rule 59(a). ABM Marking, Inc. v.
Zanasi Fratelli, S.R.L., 353 F.3d 541, 543 (7th Cir. 2003); Medcom
Nos. 13-1354 and 13-1242 7
Holding Co. v. Baxter Travenol Labs., Inc., 106 F.3d 1388, 1397 (7th
Cir. 1997).1 A jury’s answers to flawed special verdict questions
should stand if the answers can be reconciled with the evi-
dence and with one another in any reasonable way, Medcom
Holding, 106 F.3d at 1401–02, but that standard allows for
judgment and discretion.
The district court here used its superior vantage point to
make a decision well within its discretion. The court reason-
ably concluded that the jury’s answer to the second question
on the verdict form in the first trial was contrary not only to the
manifest weight of the evidence but to the undisputed evi-
dence. The jury’s answer to the second question—that Vojdani
had failed to prove that NeuroScience did not pay the invoices
—was inconsistent with NeuroScience’s admission that it did
not pay the invoices in full. NeuroScience’s theory—that the
jurors agreed with its modification argument and expressed
their conclusion by answering no to the second question—
might be true, but it remains purely speculative because of the
way the special verdict questions were framed.
Confusing special verdict questions can require reversal on
appeal. See Burger v. Int’l Union of Elevator Constructors Local
No. 2, 498 F.3d 750, 754 (7th Cir. 2007) (new trial on damages
1
Concerns about the Seventh Amendment once caused us to apply a
“somewhat more exacting” standard of review to a grant of a new trial than
to a denial, but we dropped that approach after the Supreme Court decided
Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996). See Medcom
Holding, 106 F.3d at 1397. Echoes of the old approach still surface occasion-
ally, see, e.g., Galvan v. Norberg, 678 F.3d 581, 588 (7th Cir. 2012), but we
reaffirm that a district court’s decision to grant a new trial is to be reviewed
simply for abuse of discretion.
8 Nos. 13-1354 and 13-1242
needed because confusing verdict form may have caused jury
to award damages on impermissible theory); Mattson v.
Schultz, 145 F.3d 937, 939 (7th Cir. 1998) (“Ambiguous, biased,
misleading or confusing [special verdict] questions may
warrant reversal.”). We see no reason to reject the district
court’s decision in this case to correct the problem on its own.
Perhaps the district court also could have reasonably adopted
Neuro-Science’s theory, but borderline cases are precisely
where the district court must be allowed to exercise its discre-
tion. We find no abuse of that discretion in the grant of a
partial new trial.
In his cross-appeal, Vojdani argues that the scope of the
new trial was too broad. He insists that NeuroScience should
not have been permitted to argue in the second trial that the
agreement in the letter of intent was later modified. As he sees
it, NeuroScience waived any right to special verdict questions
on modification during the first trial. In support he cites
Federal Rule of Civil Procedure 49(a)(3), which says that a
“party waives the right to a jury trial on any issue of fact raised
by the pleadings or evidence but not submitted to the jury”
unless the party demands that the issue be submitted. He also
relies on our statement in In re Rhone-Poulenc Rorer, Inc., 51 F.3d
1293, 1303 (7th Cir. 1995), that the “right to a jury trial in
federal civil cases, conferred by the Seventh Amendment, is a
right to have juriable issues determined by the first jury
impaneled to hear them (provided there are no errors warrant-
ing a new trial), and not reexamined by another finder of fact.”
Our deferential review of a district court’s decision to grant
a partial new trial under Rule 59 naturally extends to the
district court’s decisions about the scope of the new trial. See,
Nos. 13-1354 and 13-1242 9
e.g., McClain v. Owens-Corning Fiberglas Corp., 139 F.3d 1124,
1128 (7th Cir. 1998) (affirming grant of new trial only on
damages). The formulation of special verdict questions is also
a matter committed to the district court’s sound discretion.
Mattson, 145 F.3d at 938; U.S. Fire Ins. Co. v. Pressed Steel Tank
Co., 852 F.2d 313, 316 (7th Cir.1988).
The district court did not abuse its discretion by allowing
the contract modification issue to be presented to the second
jury. When flawed special verdict questions require a new trial,
the district court itself can and should correct the problem. See
Fort Howard Paper Co. v. Standard Havens, Inc., 901 F.2d 1373,
1375–77 (7th Cir. 1990) (upholding exclusion of special verdict
questions from second trial that should not have been asked at
first trial). Here the district court had assured NeuroScience
before the first trial that it could argue its contract modification
defense to the jury. At the same time the court appears to have
mistakenly rebuffed NeuroScience’s concern that the special
verdict questions were confusing and did not account ade-
quately for the possibility of contract modification. Correcting
that mistake was proper.
The authorities Vojdani cites do not undermine our
conclusion. Rule 49, far from blocking answers to previously
unsubmitted special verdict questions, allows the court to
answer such questions on its own if it so chooses. Fed. R. Civ.
P. 49(a)(3). Even if NeuroScience had waived under Rule 49 its
right to special verdict questions on modification, a district
court has broad discretion to relieve a party of waivers of
issues, claims, or defenses so long as the other party is given
sufficient notice. See Pactiv Corp. v. Rupert, 724 F.3d 999, 1003
(7th Cir. 2013) (district court had discretion to excuse plaintiff’s
10 Nos. 13-1354 and 13-1242
waiver of his best theory for relief). And our conclusion in
Rhone-Poulenc that issues decided by one jury should not be
reconsidered by another “provided there are no errors war-
ranting a new trial” does not bar asking the second jury in this
case about NeuroScience’s contract modification theory. The
district court reasonably concluded that NeuroScience had
raised the modification issue, that the design of the first special
verdict prevented a clear answer to the question, and that the
modification issue simply was not resolved by the first jury.
Judge Crabb acted within her discretion when she determined
that fairness required the second jury to decide the modifica-
tion issue. We affirm the award of $187,000 to Vojdani on this
claim.
II. Second Claim — Breach of the Confidentiality Agreement
A. Factual and Procedural Background
Two months before Vojdani and NeuroScience executed the
letter of intent in 2007, they entered into a confidentiality
agreement. They agreed that while they explored a possible
collaboration, they would exchange unspecified confidential
information and that the exchanged information would be kept
confidential and would not be used outside of the collaboration
for five years, subject to certain exceptions. As part of the
parties’ later letter of intent, the parties agreed that Vojdani
would provide NeuroScience with certain testing methods he
had developed for use with third-party testing kits and that the
two would “split the revenue of such tests 50/50.” NeuroSci-
ence paid Vojdani to use his testing methods through the end
of 2008. NeuroScience then stopped paying yet continued to
use Vojdani’s methods. According to Vojdani’s testimony, he
Nos. 13-1354 and 13-1242 11
asked NeuroScience to “return our confidential and propri-
etary information,” but to no avail. (The damages verdict at
issue on appeal concerns NeuroScience’s failure to pay only
after June 5, 2009, when the business relationship was com-
pletely over.)
Vojdani claimed that the testing methods he supplied were
confidential, making NeuroScience’s unauthorized use of them
after the business relationship ended a violation of the confi-
dentiality agreement. During the first trial, which was the only
trial on this claim, NeuroScience responded that all of the
testing procedures Vojdani had provided were publicly
available or had been significantly altered by NeuroScience,
two conditions that would except them from the confidential-
ity agreement. NeuroScience also argued that Vojdani could
not prove damages from any violation of the agreement. He
was no longer selling the tests, so he could not show that
NeuroScience’s use of his testing methods cost him any sales.
Vojdani countered that he had lost 50 percent of NeuroSci-
ence’s revenue from performing the tests, the amount that he
had been receiving under the letter of intent before NeuroSci-
ence canceled that agreement. Vojdani made clear, though, that
the breach he was alleging was of the confidentiality agree-
ment alone. Under that theory, the payment term in the
expired letter of intent could have been relevant only as a
measure of damages. The confidentiality agreement contained
no payment terms and specified that it was not a licensing
agreement. To make matters even worse for Vojdani, he
repeatedly disclaimed any theory that he was seeking a
reasonable royalty as a measure of damages under the confi-
dentiality agreement.
12 Nos. 13-1354 and 13-1242
During the trial, NeuroScience moved for judgment as a
matter of law on this claim under Federal Rule of Civil
Procedure 50(a), arguing that Vojdani could not prove dam-
ages. The court denied the motion and the claim went to the
jury. The jury’s special verdict on liability for breach of the
confidentiality agreement found: (1) that Vojdani had “proven
by a preponderance of the evidence that after June 5, 2009
defendant NeuroScience continued to use any testing methods
provided” by Vojdani,” (2) that no exception to the confidenti-
ality agreement permitted that use, and (3) that NeuroScience’s
violation of the agreement harmed Vojdani.
During the damages phase of the trial, the jury was
instructed as follows:
The fundamental basis for an award of damages
for breach of contract is just compensation for
losses necessarily flowing from the breach. A
party whose contract has been breached is not
entitled to be placed in a better position because
of the breach than the party would have been
had the contract been performed. The injured
party is entitled to the benefit of its agreement,
which is the net gain it would have realized from
the contract but for the failure of the other party
to perform.
The jury awarded Vojdani $1,165,230 in damages for NeuroSci-
ence’s breach of the confidentiality agreement. (The parties
agree that some portion of this award was for prospective
damages, though that is not a critical point on appeal.)
Nos. 13-1354 and 13-1242 13
NeuroScience then renewed its motion for judgment as a
matter of law on this claim. See Fed. R. Civ. P. 50(b). NeuroSci-
ence explained that Vojdani had presented no evidence of
losses flowing from a breach of the confidentiality agreement.
Although he was entitled to be put in the position he would
have been in but for the breach, the confidentiality agreement
merely prohibited NeuroScience from using the testing
methods. NeuroScience’s compliance with the agreement
would not have benefitted Vojdani financially unless they were
in competition. And as NeuroScience reiterated, Vojdani had
made no attempt to sell the tests himself during the alleged
breach, so NeuroScience’s violation of the agreement could not
have taken away sales he might have made.
Judge Crabb initially denied the Rule 50(b) motion, explain-
ing that Vojdani was entitled to a reasonable royalty for the use
of his testing methods and that the agreement in the expired
letter of intent was good evidence of what a reasonable royalty
would have been. But on reconsideration, Judge Crabb granted
the motion, explaining that Vojdani had never argued for a
reasonable royalty and that the jury had not been instructed on
a reasonable royalty or any other measure of damages that
could justify the award.
B. Analysis
Vojdani challenges the district court’s grant of NeuroSci-
ence’s renewed motion for judgment as a matter of law, which
vacated the verdict of nearly $1.2 million for breach of the
confidentiality agreement. Vojdani argues that the money
would merely compensate him for the “actual loss” he suffered
from the breach. NeuroScience responds that Vojdani did not
14 Nos. 13-1354 and 13-1242
and cannot prove any damages because he was not made
worse off by the confidentiality agreement’s violation.
We review de novo the district court’s grant of judgment as
a matter of law. Khan v. Bland, 630 F.3d 519, 523 (7th Cir. 2010).
A damages award the district court has set aside will not be
reinstated on appeal based on a theory that was never pre-
sented to the jury. See Liu v. Price Waterhouse LLP, 302 F.3d 749,
756 (7th Cir. 2002) (upholding remittitur because plaintiff’s
theory justifying the award was never presented to the jury).
The decisive issue, then, is whether the jury could have
applied the instructions it received to the evidence in the
record and concluded from it that Vojdani is entitled to $1.2
million for NeuroScience’s breach. The jury was instructed that
the non-breaching party, Vojdani, should be placed in the
position he would have occupied but for the breach, which is
the canonical understanding of damages for breach of contract
and also the standard in Wisconsin. United Concrete & Const.,
Inc. v. Red-D-Mix Concrete, Inc., 836 N.W.2d 807, 824 (Wis.
2013). The non-breaching party may recover expectation
damages and any other losses foreseeably flowing from the
breach. Id. As the jury here was also instructed, though, the
non-breaching party may not be “placed in a better position
because of the breach than he would have been [in] had the
contract been performed.” Dehnart v. Waukesha Brewing Co.,
124 N.W.2d 664, 670–71 (Wis. 1963).
The loss Vojdani claims is 50 percent of NeuroScience’s
revenues from tests it performed using his methods after their
business relationship ended. This is the amount Vojdani would
have received under the letter of intent, but that agreement had
Nos. 13-1354 and 13-1242 15
expired before the time in question. Vojdani has said repeat-
edly, both in this court and the district court, that his claim
about the ongoing use of his testing methods is for breach of
the confidentiality agreement alone. He has not argued that the
payment agreement in the letter of intent was extended orally
or otherwise beyond June 2009—in which case the confidenti-
ality agreement would be irrelevant. Nor was the jury asked to
decide whether the agreement was extended. (Perhaps
Vojdani’s clearest statement on what he is arguing is found in
his reply brief: “Contrary to Neuroscience’s misplaced charac-
terizations, Vojdani’s damage theories do not assume that the
relevant breach was failure to pay 50% of its gross revenues.
Instead, the relevant breach was Neuroscience’s use of
Vojdani’s confidential information after June 5, 2009, the day
the parties’ business relationship terminated.”)
On this claim for breach of the confidentiality agreement,
the expired letter of intent can be relevant only as a measure of
damages. Yet NeuroScience is correct on a critical point. If it
had complied with the confidentiality agreement’s requirement
that the company not use Vojdani’s proprietary information
outside of their collaboration, Vojdani would have gained
nothing. His methods simply would not have been used after
the collaboration ended.
One possible answer to that argument might be a “diverted
trade” theory, under which a breaching party’s profits may be
a reasonable proxy for the non-breaching party’s losses and
thus a suitable measure of damages. See Blue Ribbon Feed Co. v.
Farmers Union Cent. Exch., Inc., 731 F.2d 415, 421 (7th Cir. 1984)
(trade name infringement under Wisconsin law). But the
record in this case is bereft of any evidence that NeuroScience’s
16 Nos. 13-1354 and 13-1242
breach cost Vojdani a single sale. In fact, he seems to have
made no attempt to compete with NeuroScience during the
time it was breaching the confidentiality agreement. See id.(“Requisite to an award of the defendant’s profits under the
theory of diverted trade … is a finding that plaintiff and
defendant were in competition.”); see also U.S. Naval Inst. v.
Charter Communications, Inc., 936 F.2d 692, 696–97 (2d Cir. 1991)
(explaining that an award based on the breaching party’s
profits is normally disallowed as punitive if it exceeds the non-
breaching party’s losses). In any event, Vojdani presented the
jury with a calculation of NeuroScience’s gross revenues rather
than its profits, so this theory is not available to sustain the
verdict.
We do not hold that damages cannot be awarded for breach
of a confidentiality agreement when the parties are not in
direct competition. One obvious remedy for such a breach,
when the confidential information is used by the defendant for
its own commercial purposes, is a reasonable royalty. See
Celeritas Technologies, Ltd. v. Rockwell Int’l Corp., 150 F.3d 1354,
1359 (Fed. Cir. 1998) (affirming plaintiff’s verdict in similar
breach of contract case based on reasonable royalty theory). A
reasonable royalty is the amount an unauthorized user of
proprietary information would have agreed to pay if negotiat-
ing in good faith. Forest Labs., Inc. v. Pillsbury Co., 452 F.2d 621,
627 (7th Cir. 1971). Judge Crabb relied upon this damages
theory when she initially upheld this verdict, recognizing that
the payment terms in the letter of intent provided unusually
reliable evidence of the amount NeuroScience probably would
have been willing to pay to continue using Vojdani’s testing
methods.
Nos. 13-1354 and 13-1242 17
Nevertheless, we agree with Judge Crabb’s ultimate
conclusion that the award cannot be upheld as a reasonable
royalty. Unlike the Celeritas plaintiff, who explicitly sought
damages based on a reasonable royalty theory, Vojdani never
pursued that theory at trial. He never argued it, never asked
for instructions on it, and never presented evidence on it.
NeuroScience thus had no reason or opportunity to argue
against it. Even on appeal Vojdani argues that a reasonable
royalty would not be the proper measure of his damages. He
insists that he is seeking only standard expectation damages.
Questions about a reasonable royalty, he says, are “nothing
more than irrelevant distractions.”
We do not understand the reasons he has taken that
position, but we cannot rescue the jury’s verdict based on a
reasonable royalty theory that he has abjured repeatedly in the
district court and in this court, so that NeuroScience never had
an opportunity or a reason to respond to the theory. Cf. Pactiv
Corp. v. Rupert, 724 F.3d 999, 1001 (7th Cir. 2013) (district
judges “sometimes have the authority to relieve parties of their
forfeitures …, but if they do this they must notify the other
side, so that it can meet the argument”); Southern Illinois
Riverboat Casino Cruises, Inc. v. Triangle Insulation and Sheet
Metal Co., 302 F.3d 667, 677–78 (7th Cir. 2002) (district judge
may decide case based on issue the court has raised sua sponte
but must first give parties notice and opportunity to respond)
In this case, the district court correctly found that Vojdani
had simply failed to present to the jury the only theory that
might have supported a damages award for the breach of the
confidentiality agreement, so NeuroScience never had an
opportunity to offer evidence or argument on the theory.
18 Nos. 13-1354 and 13-1242
Despite his awareness that NeuroScience continued to use his
testing methods, Vojdani also chose not to pursue an injunc-
tion. Instead, he sought to insert the payment terms of the
expired letter of intent into the confidentiality agreement
without justifying that synthesis under the law. The jury
understandably may have thought that NeuroScience should
not be allowed to benefit from its breach, but Vojdani simply
did not supply the jury with the evidence, argument, or
instructions to avoid that result.
The judgment of the district court is AFFIRMED in all
respects. Each side shall bear its own costs.