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PPD Enterprises, LLC v. Stryker Corp.

United States District Court, S.D. Texas, Houston Division

November 1, 2017

PPD ENTERPRISES, LLC, Plaintiff,
v.
Stryker Corporation, et al., Defendants.

          SUMMARY JUDGMENT OPINION AND ORDER

          STEPHEN WIN SMITH, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the court on defendants' motion for summary judgment (Dkt. 147).[1]Having considered the parties' submissions and the law, the motion is granted in part and denied in part.

         Background

         In June 2013, PPD and MAKO Surgical Corp. entered into a Sales Representative Agreement pursuant to which PPD would be the exclusive sales representative for MAKO Restoris partial knee and total hip replacement implant systems and related accessories. The MAKO implants are designed to be used with MAKO's RIO (Robotic Arm Interactive Orthopedic) system. PPD also distributes products manufactured by Corin, USA, a MAKO/Stryker competitor.

         MAKO terminated the Sales Representative Agreement on October 13, 2014, citing violations of Section 4.1 of the Agreement regarding PPD's responsibilities. Dkt. 160-6. PPD sued defendants in February 2016 asserting claims for breach of contract and tortious interference with PPD's business relationships. Defendants now seek summary judgment on PPD's claims.

         Summary Judgment Standards

         Summary judgment is appropriate if no genuine disputes of material fact exist, and the moving party is entitled to judgment as a matter of law. FED. R. ClV. P. 56(a). The party moving for summary judgment has the initial burden of proving that there are no genuine disputes of material fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir. 2001). Dispute about a material fact is "genuine" if the submitted evidence could lead a reasonable jury to find for the nonmoving party. In re Segerstrom, 247 F.3d 218, 223 (5th Cir. 2001). "An issue is material if its resolution could affect the outcome of the action." Terrebonne Parish Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 310 (5th Cir. 2002). In determining whether a genuine dispute of material fact exists, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 411 U.S. 242, 255 (1986).

         Analysis

         Defendants' move for summary judgment on the grounds that (1) PPD cannot establish damages as to either of its claims; and (2) PPD cannot rely on violations of various federal and state statutes that do not otherwise provide private causes of action to satisfy an element of its tortious interference claim.

         Contract Damages.

         Defendants move for summary judgment on PPD's breach of contract claim solely on the basis of damages. Damages are a necessary element of a breach of contract claim. David v. Texas Farm Bur. Ins., 470 S.W.3d 97, 104 (Tex. App. - Houston [T'Dist] 2015, no pet.). Under Texas law:

Damages must be established with reasonable certainty, not mathematical precision. If the fact of damages has been established, then the inability to calculate the exact amount of damages is not fatal. If the best available evidence affords a reasonable basis for the jury to calculate damages, then recovery cannot be denied because the exact amount of damages cannot be ascertained.

O &B Farms, Inc. v. Black, 300 S.W.3d 418, 422 (Tex. App. - Houston [14th Dist.] 2009, pet. denied) (internal citations omitted).

         Defendants contend that PPD has no evidence of damages because its principal, Angie Domingues, is not qualified as an expert.[2] PPD does not have to offer expert testimony on damages. Merritt Hawkins & Assoc, LLC v. Gresham,861 F.3d 143, 153 (5th Cir. 2017); ERI Consulting Engineers v. Swinnea,318 S.W.3d 867, 877 (Tex. 2010). Domingues is the sole member of PPD Enterprises, LLC. She has personal knowledge of PPD's Sales Representative Agreement, commissions, and business expenses. Domingues testified in her deposition that damages would be calculated based on the commissions PPD would have earned through the end of the contract term. Dkt. 147-1 at 3-5. At the time of her deposition Domingues had not calculated the dollar amount of the damages, but she has now done so.[3] PPD has also identified the documents Domingues used to make her calculation. See Dkt. 170 at 4-5. Defendants' argument that Domingues failed to take into account expenses in calculating PPD's ...


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