Weiner v. Int. Animal Semen Bank, LLC

A claim of lost profits requires a party to provide evidence of both lost revenue and lost expenditures necessary to earn the lost revenue. Summa Real Estate Group, Inc. v. Horst, 303 Or App 415, 424, 464 P3d 483 (2020).

The plaintiff must present evidence that offers“reasonable certainty” rather than speculation to support a claim for lost profits. JH Kelly, LLC v. Quality Plus Services, Inc., 305 Or App 565, 585, 472 P3d 280 (2020).

Defendants operated an animal semen bank for dog breeders.  Defendants appealed a jury verdict awarding plaintiffs $400,000 for lost profits on claims of negligence and breach of bailment.  On appeal, Defendants’ argued the trial court erred in its denial of their motion for a directed verdict or alternative motion to strike the claim of lost profits because plaintiffs presented a case for lost revenues, which are not legally validated damages.  Even if Plaintiffs made a case for lost profits, their evidence was inadequate to award damages.  Plaintiffs asserted their case was based on generalized economic damages rather than lost profits or lost revenue, but even so, they met their burden of proof for an award of lost profits.  A claim of lost profits requires a party to provide evidence of both lost revenue and lost expenditures necessary to earn the lost revenue.  Summa Real Estate Group, Inc. v. Horst, 303 Or App 415, 424, 464 P3d 483 (2020).  The plaintiff must present evidence that offers“reasonable certainty” rather than speculation to support a claim for lost profits.  JH Kelly, LLC v. Quality Plus Services, Inc., 305 Or App 565, 585, 472 P3d 280 (2020).  The Court found the lower court erred in denying the Defendant’s motion for directed verdict because Plaintiffs failed to present evidence of lost expenditures for a jury to calculate net lost profits without undue speculation.  The Court reversed the verdict for lost profits, and remanded because although the Defendants’ merited a directed verdict on lost profits, the Plaintiffs presented evidence to support an award for economic damages and a new trial was necessary to separate damages for the lost or damaged vials of semen from the excluded damages for lost profits.  Reversed and remanded.