Antrim Pharmaceuticals LLC v. Bio-Pharm, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3434
ANTRIM PHARMACEUTICALS LLC,
Plaintiff-Appellant,
v.
BIO-PHARM, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16-cv-00784 — Matthew F. Kennelly, Judge.
____________________
ARGUED SEPTEMBER 16, 2019 — DECIDED FEBRUARY 14, 2020
____________________
Before BAUER, BRENNAN, and ST. EVE, Circuit Judges.
BRENNAN, Circuit Judge. Antrim Pharmaceuticals LLC and
Bio-Pharm, Inc. arranged to manufacture and sell a generic
anti-depressant. When their plan fell apart, litigation fol-
lowed. Antrim sued Bio-Pharm for breach of contract, and
Bio-Pharm counterclaimed based on promissory estoppel or,
in the alternative, breach of contract. Following a five-day
trial, a jury found for Bio-Pharm on Antrim’s breach of
2 No. 18-3434
contract claim and for Antrim on Bio-Pharm’s counterclaim.
Neither party was awarded damages. Antrim appealed.
Antrim challenges the district court’s jury instructions, ev-
identiary rulings, and decision to allow Bio-Pharm to request
lost profits as a remedy on its counterclaim. Bio-Pharm argues
Antrim waived these arguments on appeal because Antrim
agreed to a general verdict form and did not file a post-trial
motion under Federal Rule of Civil Procedure 50(b). We con-
clude that Bio-Pharm’s waiver argument has no merit but af-
firm because the district court committed no reversible error.
I.
As 2011 gave way to the new year, some in the pharma-
ceutical industry believed easy money was to be made. The
patent for Lexapro, an anti-depressant with billions of dollars
in yearly sales, was set to expire in March 2012. See Gary Rob-
bins, Consumers to Save Big as Lexapro Patent Expires, SAN
DIEGO UNION-TRIBUNE, Mar. 5, 2012, https://www.sandi-
egouniontribune.com/business/biotech/sdut-consumes-save-
big-lexapro-patent-expires-2012mar05-htmlstory.html. The
expiration of Lexapro’s patent presented a potentially lucra-
tive business opportunity for pharmaceutical companies
looking to sell the generic version of Lexapro, known as es-
citalopram.
Enter the startup company Antrim and the drug manufac-
turer Bio-Pharm. These companies appeared to be a perfect
match to profit from Lexapro’s loss of patent protection. Brian
Tambi, the head of Antrim, had extensive experience in grow-
ing pharmaceutical companies from the ground up. Bio-
Pharm was a well-known contract manufacturer for the
generic drug industry. And Antrim and Bio-Pharm had
No. 18-3434 3
already established a business relationship—BrianT Labora-
tories (Antrim’s corporate predecessor), Bio-Pharm, and a
third company had signed a non-binding term sheet in De-
cember 2009 to develop, manufacture, market, and sell un-
specified pharmaceutical products. The parties to the term
sheet planned to share equity in that joint pharmaceutical ar-
rangement. But the business deal never materialized, and the
term sheet lapsed in early 2010. Although Antrim and Bio-
Pharm originally intended to sign an updated version of the
term sheet for their escitalopram venture, the two companies
never signed a written contract to replace the term sheet after
its expiration.
The two companies forged ahead without a signed agree-
ment. In May 2015, the Food and Drug Administration ap-
proved Antrim’s Abbreviated New Drug Application
(“ANDA”) for escitalopram, which permitted Antrim to sell
escitalopram and contract out its manufacturing to Bio-
Pharm. Later that year, Bio-Pharm manufactured the first
batch.
Bio-Pharm, however, never shipped the escitalopram to
Antrim. Bio-Pharm insists it was not obligated to supply
Antrim with the escitalopram because the companies never
signed a new agreement after the term sheet expired. Alt-
hough the companies lacked a written contract, Bio-Pharm
claims Antrim had promised they would share equity in the
new venture according to the now-expired term sheet. But
when Antrim told Bio-Pharm that equity was off the table,
Bio-Pharm contends it decided to leave the business venture.
Antrim tells a different story. According to Antrim, the
two parties committed to an oral contract in early 2012, under
which Bio-Pharm received a share of net profits instead of
4 No. 18-3434
equity, but Bio-Pharm backed out of that agreement when
Antrim refused to renegotiate the terms of the deal.
Antrim sued Bio-Pharm for allegedly breaching the oral
contract. Bio-Pharm counterclaimed on the theory of promis-
sory estoppel, asserting it relied on Antrim’s false promises of
shared equity in the venture. In the alternative, Bio-Pharm
counterclaimed against Antrim for breaching the oral contract
Antrim claimed existed.
Both parties filed motions in limine relevant to this appeal.
Antrim argued the district court should preclude expert testi-
mony by one of Bio-Pharm’s expert witnesses, Mark
Schwartz, on how the FDA regulates ANDA holders. Bio-
Pharm argued the district court should preclude expert testi-
mony by Sean Brynjelsen, one of Antrim’s expert witnesses,
on industry practices and to what degree Bio-Pharm’s alleged
breach impaired the value of Antrim’s business under a lost
enterprise value theory. The district court denied Antrim’s
motion in limine to exclude Schwartz’s testimony on FDA
practices, but it granted Bio-Pharm’s motions in limine to ex-
clude those portions of Brynjelsen’s testimony on industry
practices and Antrim’s losses under a lost enterprise value
theory.
Several other motions are pertinent to this appeal. In the
final pretrial order and later at the jury instruction conference,
Antrim proposed Jury Instruction No. 8. That instruction
stated that under FDA policy the holder of an ANDA is also
the owner of the product underlying that ANDA. The district
court rejected Jury Instruction No. 8 after finding the instruc-
tion on “what an ANDA means” was irrelevant to the case.
DE 169 at 39. Antrim also filed a motion to bar Bio-Pharm
from requesting lost profits as a remedy for its counterclaim
No. 18-3434 5
because Bio-Pharm missed the disclosure deadline imposed
by Federal Rule of Civil Procedure 26(a)(1). The district court
ruled that Bio-Pharm violated Rule 26(a)(1) but denied An-
trim’s motion on the grounds that the violation was harmless.
The case went to trial, and the district court used a general
verdict form after neither party objected.1 Following the jury’s
verdict in favor of Bio-Pharm on Antrim’s claim and in favor
of Antrim on Bio-Pharm’s counterclaim, Antrim timely ap-
pealed.
II.
On appeal, Antrim alleges the district court erred by: (1)
rejecting Jury Instruction No. 8, (2) denying its motion to pre-
clude Schwartz’s testimony on FDA practices, (3) granting
Bio-Pharm’s motion to preclude Brynjelsen’s testimony on in-
dustry practices, (4) granting Bio-Pharm’s motion to preclude
Brynjelsen’s testimony on Antrim’s lost enterprise value, and
(5) allowing Bio-Pharm to request lost profits as a remedy for
its counterclaim.2
1 Among the types of jury verdicts that federal courts recognize are
general and special. See Turyna v. Martam Const. Co., Inc., 83 F.3d 178, 180–
81 (7th Cir. 1996). “General verdicts simply ask the jury to answer the
question ‘who won,’ and if the winning party is entitled to a monetary
award, to answer the question ‘how much.’” Id. at 181. Special verdict
forms require the jury to make written findings on issues of fact; the court
then applies the law to the jury’s findings. See FED. R. CIV. P. 49(a).
2 This court has cautioned appellate counsel to focus on “one central
issue if possible, or at most on a few key issues.” United States v. Boscarino,
437 F.3d 634, 635 (7th Cir. 2006) (quoting Jones v. Barnes, 463 U.S. 745, 751–
52 (1983)). By arguing so many issues (and sub-issues) on appeal, Antrim
has “consume[d] space that [could have] be[en] devoted to developing []
6 No. 18-3434
Before addressing the substance of Antrim’s arguments,
we consider whether Antrim has waived any of its arguments
on appeal. Bio-Pharm asserts “every issue appealed by
Antrim” is rendered “moot” because the district court used a
general verdict form and Antrim did not file a motion for a
renewed judgment as a matter of law under Rule 50(b). We
disagree.
Bio-Pharm incorrectly assumes that on appeal Antrim
challenges the sufficiency of the evidence. For example, Bio-
Pharm contends that “[a] general verdict, without more,
will … give rise to the presumption that material fact issues
have been resolved in favor of the prevailing party.” Freeman
v. Chicago Park Dist., 189 F.3d 613, 616 (7th Cir. 1999) (quoting
Dual Mfg. & Eng’g, Inc. v. Burris Indus., Inc., 619 F.2d 660, 667
(7th Cir. 1980)). Although a true statement of the law, it is ir-
relevant to this appeal because Antrim challenges pretrial rul-
ings, not the jury’s factual findings. Therefore, Antrim has not
waived any of the issues it raises on appeal by failing to file
for a renewed judgment as a matter of law. Bio-Pharm is also
correct that “[a] party’s failure to comply with Rule 50(b) fore-
closes any challenge to the sufficiency of the evidence on ap-
peal.” Consumer Products Research & Design, Inc. v. Jensen, 572
F.3d 436, 437–38 (7th Cir. 2009) (citing Unitherm Food Sys., Inc.
v. Swift-Eckrich, Inc., 546 U.S. 394, 404–07 (2006)). But again,
Antrim does not challenge the sufficiency of the evidence on
appeal. Here too, Antrim has not waived any arguments.
arguments with some promise.” Howard v. Gramley, 225 F.3d 784, 791 (7th
Cir. 2000).
No. 18-3434 7
Turning to the merits, we group Antrim’s arguments into
challenges related to the jury instructions, to the motion in
limine rulings, and to Bio-Pharm’s counterclaim.
A. Jury Instructions
“We review the legal accuracy of [] jury instruction[s] de
novo, but we evaluate the particular phrasing for abuse of dis-
cretion.” United States v. Beavers, 756 F.3d 1044, 1056 (7th Cir.
2014) (citing United States v. Dickerson, 705 F.3d 683, 688 (7th
Cir. 2013)). If a court’s instructions were legally accurate,
“[r]eversal is warranted ‘only if it appears both that the jury
was misled and that the instructions prejudiced the defend-
ant.’” United States v. McKnight, 655 F.3d 786, 791 (7th Cir.
2011) (quoting United States v. Curry, 538 F.3d 718, 731 (7th
Cir. 2008)); see also Jimenez v. City of City of Chicago, 732 F.3d
710, 717 (7th Cir. 2013) (citing Gile v. United Airlines, Inc., 213
F.3d 365 374–75 (7th Cir. 2000)) (“If the instructions were de-
ficient, we ask whether the jury was confused or misled by
the instructions. Even if we believe that the jury was confused
or misled, we would need to find that the defendants were
prejudiced before ordering a new trial.”).
According to Antrim, the district court erred by failing to
instruct the jury on the legal significance of Antrim holding
an escitalopram ANDA. Before trial, Antrim proposed Jury
Instruction No. 8, which directed the jury to “conclude that
Antrim owns [e]scitalopram according to FDA regulation and
policy” if it found “that Antrim is the holder of the ANDA for
[e]scitalopram.” DE 173-3 at 13. Since the district court
rejected Jury Instruction No. 8 and never instructed the jury
on the preclusive effects of ANDA ownership, Antrim claims
“the trial devolved into a debate about [whether] Bio-Pharm[]
… owned an interest in the ANDA, or was promised an
8 No. 18-3434
ownership interest in the ANDA.” Antrim contends this
failure to instruct the jury on the consequences of ANDA
ownership “was extremely confusing for the jury.” Because
Antrim does not dispute the legal accuracy of the district
court’s jury instructions—but rather contends its instructions
were insufficient—Antrim must show the instructions
“confused or misled the jury” and caused it prejudice for this
court to reverse. Jimenez, 732 F.3d at 717 (7th Cir. 2013).
Antrim fails to meet this strict standard.
Neither party disputes that Antrim owned an escital-
opram ANDA and was an ANDA holder for escitalopram
under FDA regulations. But the parties dispute the conse-
quences of that ownership. Antrim argues ANDA holders
own the products manufactured in accordance with those
ANDAs as well as the ANDAs themselves. Antrim insists that
because it owns an ANDA for escitalopram and Bio-Pharm
was aware of that ownership, Bio-Pharm accepted its role as
a contractor and not a co-owner. Bio-Pharm’s position is that
although Antrim held an ANDA for escitalopram, Antrim did
not own the escitalopram manufactured by Bio-Pharm under
the ANDA unless Bio-Pharm agreed to sell it. We conclude
FDA regulations support Bio-Pharm’s position.
Before manufacturing and marketing a generic drug, a
company must file an ANDA with the FDA. See FDA, Abbre-
viated New Drug Application (ANDA), https://www.fda.gov/
drugs/types-applications/abbreviated-new-drug-application-
anda (May 22, 2019). To receive FDA approval, ANDA appli-
cants are not required to replicate original costly clinical trials,
but they must demonstrate their generic drug functions in the
same manner as the non-generic version of the drug. Id. After
the FDA accepts an ANDA filed by an ANDA applicant, that
No. 18-3434 9
applicant “owns [the] approved ANDA” and becomes the
“ANDA holder.” 21 C.F.R. § 314.3(b). Being an ANDA holder
does not confer any exclusive rights. For example, when this
case was tried, at least six companies held ANDAs for escital-
opram. Essentially, an ANDA serves as an FDA-granted li-
cense to manufacture and market the generic version of a
drug. But ownership of an ANDA, and the ability to manu-
facture and market the drug listed in that ANDA, does not
decide ownership of any product manufactured in accord-
3
ance with that ANDA. Indeed, the relevant regulations never
equate ownership of the ANDA with ownership of the under-
lying product.
Before the district court, the parties disputed ownership of
the escitalopram, not ownership of the ANDA. As described
above, these are unrelated concepts; whether Antrim had an
ownership interest in the ANDA was irrelevant to the ques-
tion of ownership. Reversal is not appropriate because
Antrim has failed to show the district court “confused or mis-
led the jury” by not permitting Jury Instruction No. 8. See
Jimenez, 732 F.3d at 717. In fact, Jury Instruction No. 8 likely
posed a risk of confusing or misleading even the most astute
jurors given its irrelevant language on ANDA ownership.
3 A hypothetical can demonstrate the difference in this context be-
tween a license and ownership. Suppose a landowner sells a license to a
business that allows the business to harvest timber on Blackacre. Under
that license, the business can keep the lumber it harvests. And suppose the
business hires a third party to remove the timber located on Blackacre. If
the business grants the third party an interest in the harvested timber in
exchange for the third party’s work, the third party then possesses an
ownership interest in the timber without having an ownership interest in
the license itself.
10 No. 18-3434
Because ANDA ownership was immaterial to this case and
Antrim has not shown the district court’s instructions con-
fused or misled the jury, the district court did not err by re-
jecting Jury Instruction No. 8.
B. Motions in Limine
Antrim next challenges the district court’s rulings on three
motions in limine. We review rulings on motions in limine for
abuse of discretion. See Carmody v. Bd. of Trustees. of the Univ.
of Ill., 893 F.3d 397, 407 (7th Cir. 2018) (citing Empire Bucket,
Inc. v. Contractors Cargo Co., 739 F.3d 1068, 1071 (7th Cir.
2014)); United States v. Johnson, 916 F.3d 579, 586–87 (7th Cir.
2019) (quoting United States v. Causey, 748 F.3d 310, 316 (7th
Cir. 2014)) (“We afford the district court’s evidentiary rulings
special deference and find an abuse of discretion ‘only where
no reasonable person could take the view adopted by the trial
court.’”).
1. Schwartz’s testimony on FDA practices
Mark Schwartz was an expert witness for Bio-Pharm and
a former FDA lawyer. Schwartz had extensive experience
with federal drug regulations: he spent 13 years at the FDA
before joining a private firm that advises generic drug manu-
facturers. In his expert witness report, Schwartz disclosed he
intended to testify about what the FDA would infer based on
Antrim’s status as an ANDA holder for escitalopram. Specif-
ically, Schwartz planned to testify that the FDA would treat
the relationship between Antrim and Bio-Pharm as “a con-
tractual relationship for Bio-Pharm to manufacture the drug
at issue on behalf of Antrim” because Bio-Pharm was identi-
fied as the manufacturer on the ANDA application. DE 154
Ex. 1 at 2. Schwartz also planned to testify that the “FDA
No. 18-3434 11
would not infer any ownership relationship one way or the
other” from the ANDA. Id. Antrim filed a motion in limine to
preclude Schwartz’s testimony on the basis that: (1) his testi-
mony was inaccurate because “applicable federal statutes and
FDA regulations all make clear that the ANDA ‘holder’ is the
‘owner’ of the product” and (2) allowing an FDA officer to
testify on a legal issue invades the province of the court. DE
132 at 1. The district court found these arguments unpersua-
sive, and Schwartz testified on ANDA ownership at trial. On
appeal, Antrim raises the same arguments it raised before the
district court.
Antrim’s first argument is easily rejected. Schwartz’s tes-
timony that ownership of an ANDA does not determine own-
ership of the underlying product is legally correct. Just as the
district court did not err by rejecting Jury Instruction No. 8,
the district court did not err by rejecting Antrim’s motion in
limine to preclude Schwartz’s testimony.
Antrim’s second argument—that the district court should
not have permitted Schwartz to testify on FDA statutes and
regulations—is more complicated. Experts generally may not
testify on pure issues of law, such as the meaning of statutes
or regulations. See, e.g., United States v. Caputo, 517 F.3d 935,
942 (7th Cir. 2008) (citing Bammerlin v. Navistar Int’l Transpor-
tation Corp., 30 F.3d 898, 900 (7th Cir. 1994)) (“The … meaning
of the statute and regulations [is] a subject for the court, not
for testimonial experts.”). But courts have permitted regula-
tory experts to testify on complex statutory or regulatory
frameworks when that testimony assists the jury in under-
standing a party’s actions within that broader framework. See,
e.g., In re Mirena IUD Prods. Liab. Litig., 169 F. Supp. 3d 396,
478–79 (S.D.N.Y. 2016) (“Dr. Parisian's experience as an
12 No. 18-3434
officer at the FDA qualifies her to opine on the background of
the FDA, its functions, and the FDA's regulatory frame-
work. … Dr. Parisian’s testimony regarding compliance with
FDA regulations does not usurp the role of the jury, but rather
merely helps them understand a complicated statutory frame-
work.”); Jones v. Novartis Pharms. Corp., 235 F. Supp. 3d 1244,
1255–56 (N.D. Ala. 2017) (“The court finds that Dr. Parisian is
qualified, based on her experience at the FDA as a Medical
Officer, to offer testimony about regulatory requirements for
the testing, marketing, and development of prescription
drugs.”); In re Yasmin & Yaz (Drospirenone) Mktg., Sales Prac-
tices & Prods. Liab. Litig., No. 3:09-md-02100-DRH-PMF, 2011
WL 6302287 at *16 (N.D. Ill. Dec. 16, 2011) (stating the same).
See also FED. R. EVID. 702(a) (“A witness who is qualified as an
expert … may testify in the form of an opinion or otherwise
if: the expert’s … specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in is-
sue.”).
The district court properly admitted Schwartz’s testimony
on the FDA’s statutory and regulatory authority. His testi-
mony helped the jury better grasp the relationship between
Antrim and Bio-Pharm in light of the FDA’s regulations on
generic pharmaceuticals. Schwartz’s testimony on ANDA
ownership assisted the jury with understanding how An-
trim’s ownership of the escitalopram ANDA was irrelevant to
whether Antrim owned the escitalopram manufactured by
Bio-Pharm. And that testimony was particularly important in
this case, where one of Antrim’s witnesses incorrectly stated
there is “no difference” between ownership of an ANDA and
ownership of the underlying product. DE 213 at 406. We con-
clude the district court did not abuse its discretion by denying
No. 18-3434 13
Antrim’s motion in limine to prevent Schwartz from testify-
ing on FDA practices.
2. Brynjelsen’s intended testimony on industry prac-
tices
Antrim then challenges the preclusion of testimony from
its expert, Sean Brynjelsen, on industry practices. With over
20 years of experience working for pharmaceutical compa-
nies, Brynjelsen intended to testify that, according to his ex-
perience and “well-known industry practice and norms,”
contract manufacturers like Bio-Pharm “never [hold] an own-
ership interest in the drugs falling under the ANDA.” DE 140
at 12. But after Bio-Pharm filed a motion in limine to preclude
Brynjelsen’s testimony on industry practices, the district court
prohibited Brynjelsen from testifying that “Antrim’s owner-
ship of the ANDA for escitalopram somehow makes it less
likely or impossible that Antrim promised Bio-Pharm an eq-
uity share.” DE 168 at 4.
On appeal, Antrim argues the district court erred by grant-
ing Bio-Pharm’s motion in limine because Brynjelsen’s testi-
mony would have established that Antrim’s ownership of the
escitalopram ANDA meant Antrim was more likely to own
escitalopram manufactured under that ANDA. But the dis-
trict court’s decision to preclude Brynjelsen’s testimony on
this issue does not rise to an abuse of discretion. During his
deposition, Brynjelsen admitted he did “not have specific
knowledge” of whether Antrim and Bio-Pharm ever agreed
to split equity in the escitalopram produced under the
ANDA. DE 142 at 33. Without specific knowledge of any
agreement between Antrim and Bio-Pharm, Brynjelsen’s in-
tended testimony on general industry customs and practices
was not relevant to whether the parties entered into an
14 No. 18-3434
agreement to share equity in this case. So the district court did
not err by precluding this line of testimony.
3. Brynjelsen’s intended testimony on Antrim’s lost
enterprise value
Antrim also sought Brynjelsen’s testimony on how Bio-
Pharm’s alleged breach reduced Antrim’s profits and reduced
the value of Antrim’s business. But the district court excluded
Brynjelsen’s latter calculation after finding that Antrim had
“failed to show a legal basis or a proper evidentiary founda-
tion for recoverability of damages for lost enterprise value in
this case (as distinguished from lost profits).” DE 174.
Antrim argues the district court erred because federal
courts, applying Illinois law,4 permit breach of contract
awards based on theories of lost enterprise value. But Antrim
oversimplifies Illinois law, under which “damages cannot be
based on potential or future loss, unless it is reasonably cer-
tain to occur, nor can damages be based on speculation and
conjecture.” Platinum Tech., Inc. v. Fed. Ins. Co., 282 F.3d 927,
933 (7th Cir. 2002) (citing Schoeneweis v. Herrin, 443 N.E.2d 36,
42 (1982); Harp v. Ill. Cent. Gulf R.R. Co., 370 N.E.2d 826, 829
(1997)). See also Westlake Fin. Grp. v. CDH-Delnor Health Sys.,
25 N.E.3d 1166, 1179 (Ill. App. Ct. 2015) (quoting Thornhill v.
Midwest Physician Ctr. of Orland Park 787 N.E.2d (Ill. App. Ct.
4Neither party on appeal raises a conflict of law issue, and this suit,
arising out of diversity jurisdiction, was filed in the U.S. District Court for
the Northern District of Illinois. We therefore apply Illinois law. See Wood
v. Mid-Valley Inc., 942 F.2d 425, 426 (7th Cir. 1991) (“The operative rule is
that when neither party raises a conflict of law issue in a diversity case,
the federal court simply applies the law of the state in which the federal
court sits.”).
No. 18-3434 15
2003)) (“Damages are speculative when uncertainty exists as
to the facts of their existence.”).
Brynjelsen failed to show the damages to Antrim’s busi-
ness value were reasonably certain to occur; he instead based
his estimate on impermissible conjecture and speculation. To
reach his estimate, he took the annual profits he believed
Antrim would have received had Bio-Pharm provided the es-
citalopram and multiplied that figure by between 8.3 and 24
times to account for “precedent transactions” involving other
acquired companies. DE 140 at 8. But, as Brynjelsen admitted
in his deposition, he never compared those acquired compa-
nies to Antrim. In addition to this exercise in conjecture,
another problem arises: these damages would never occur un-
less Antrim chose to sell itself. And Antrim has provided no
evidence that its owners ever intended to sell the business or
had ever engaged in discussions with potential buyers. Thus,
Brynjelsen’s lost value calculations assumed Bio-Pharm and
Antrim would successfully introduce escitalopram into the
market, the venture would prove profitable, Antrim’s market
value would rise to between 8.3 and 24 times its annual prof-
its, and Antrim would sell itself to an interested buyer. This
chain of assumptions grows weaker with each additional link.
Brynjelsen’s potential testimony, replete with assumptions,
was based on improper speculation and conjecture. Further-
more, because Antrim provided no evidence that it intended
to sell itself, Brynjelsen failed to show the loss of Antrim’s
business value was “reasonably certain” to have occurred.
Platinum Tech., Inc., 282 F.3d at 933 (7th Cir. 2002) (citations
omitted). Applying Illinois law, the district court therefore
did not abuse its discretion by barring Antrim from present-
ing to the jury Brynjelsen’s calculations on Antrim’s lost en-
terprise value.
16 No. 18-3434
C. Bio-Pharm’s Counterclaim
Lastly, Antrim argues the district court erred by allowing
Bio-Pharm to request lost profits as an alternative remedy for
its counterclaim. Roughly three months before the trial
began—and more than two years after its initial Rule 26(a)(1)
disclosures—Bio-Pharm revealed for the first time it intended
to request lost profits based on Brynjelsen’s testimony on
Antrim’s lost profits.5 Specifically, Bio-Pharm argued that if
the parties had a contract, Bio-Pharm was entitled to 25% of
any of Antrim’s profits under that contract. Antrim moved to
prevent Bio-Pharm from relying on Brynjelsen’s lost profits
testimony due to Bio-Pharm’s last minute disclosures. The
district court looked to whether Bio-Pharm violated Rule
26(a)(1)’s disclosure rules and, if such a failure to timely
disclose did occur, whether Bio-Pharm could still rely on
Brynjelsen’s testimony by showing the late disclosure was
“justified or [] harmless” under Rule 37(c)(1). The district
court decided Bio-Pharm had violated Rule 26(a)(1) but also
deemed Bio-Pharm’s late disclosure harmless because Antrim
was aware of Bio-Pharm’s counterclaim “from a very early
point in this case.” DE 189. The district court also found
Antrim knew that Bio-Pharm intended to ask the jury for 25%
of the profits derived from Antrim’s escitalopram sales and
that Antrim failed to identify anything it would have done
5Although Brynjelsen’s calculations of Antrim’s lost enterprise value
rely on his calculations of Antrim’s lost profits, we do not find it necessary
to decide whether Brynjelsen’s lost profits calculations are too speculative
under Illinois law.
No. 18-3434 17
differently if Bio-Pharm had complied with Rule 26(a)(1). So
the district court denied Antrim’s motion to exclude.
Here, Antrim argues the district court erred by allowing
Bio-Pharm’s counterclaim to advance to trial because Bio-
Pharm missed the Rule 26(a)(1) disclosure deadline and be-
cause Brynjelsen never established that his lost profit calcula-
tions could be used to measure Bio-Pharm’s damages. Even if
these arguments had merit, “[i]t is well established that a
party cannot appeal an issue it won at trial.” See Estate of Kan-
ter v. Comm’r, 432 F. App’x 618, 619–20 (7th Cir. 2011) (citing
Electrical Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 242
(1939)). And Antrim prevailed against Bio-Pharm’s counter-
claim at trial—barring Antrim’s appeal of the district court’s
Rule 37(c)(1) determination. Nevertheless, Antrim asserts the
jury in this case was improperly permitted to “off-set”
Antrim’s breach of contract claim with Bio-Pharm’s counter-
claim. But Antrim provides no authority for this assertion. Es-
sentially, Antrim invites this court to ignore precedent and
speculate as to why the jury issued a split verdict. We decline
to do so.
III.
The district court correctly ruled on the various eviden-
tiary and procedural questions presented in this case, so we
AFFIRM its judgment.