Marjam Supply Company of Florida, LLC v. PLITEQ, Inc. ( 2020 )


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  •             Case: 18-13765   Date Filed: 04/27/2020   Page: 1 of 21
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 18-13765
    ________________________
    D.C. Docket No. 1:15-cv-24363-KMW
    MARJAM SUPPLY COMPANY OF FLORIDA, LLC,
    MARJAM SUPPLY COMPANY,
    Plaintiffs - Appellants,
    versus
    PLITEQ, INC.,
    PAUL DOWNEY,
    Defendants - Appellees.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (April 27, 2020)
    Before MARTIN, GRANT, and LAGOA, Circuit Judges.
    MARTIN, Circuit Judge:
    Case: 18-13765      Date Filed: 04/27/2020    Page: 2 of 21
    Marjam Supply Company of Florida, LLC and Marjam Supply Company
    (“Marjam”) appeal the District Court’s order denying Marjam’s motion for
    judgment as a matter of law and for a new trial. Marjam challenges the sufficiency
    of the evidence of damages awarded to Pliteq, Inc. and Paul Downey, the owner of
    Pliteq, (collectively, “Pliteq”) and also takes issue with several of the District
    Court’s evidentiary rulings. After careful review, we affirm.
    I. BACKGROUND
    Pliteq manufactures and sells sound isolation products, including its
    GenieMat RST (“GenieMat”) product. The GenieMat is a flat, rubber mat used in
    offices and apartment buildings to reduce sound transmission. In March 2014,
    Marjam (a building materials distributor) and Pliteq entered into an exclusive
    distributor agreement for GenieMat products. Under the terms of the agreement,
    Marjam was required to pay in advance for its GenieMat orders. It initially upheld
    its end of the bargain. Then in June 2015, Pliteq notified Marjam that Marjam was
    significantly late on payments totaling $160,000. Pliteq also discovered Marjam
    was selling competing products. Instead of immediately terminating the
    agreement, Pliteq refused to ship any product until Marjam paid the past due
    amount and gave Marjam a chance to respond to these issues. Marjam responded
    by threatening to take “swift and inordinate” and “extreme and unpleasant” action
    if Pliteq did not reconsider its position. Pliteq then terminated the agreement.
    2
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    Mark Buller, Marjam’s owner, and James Metcalf, Marjam’s products
    manager, began discussing plans to get even with Pliteq. Mr. Buller directed Mr.
    Metcalf to cooperate with Ecore (one of Pliteq’s direct competitors), with the idea
    that the two companies intended to “cripple” and “bury” Pliteq. The owner of
    Ecore told Mr. Metcalf that Pliteq was intentionally mislabeling the thickness of its
    GenieMat products from one of its manufacturers, so the two companies hatched a
    plan. Marjam agreed to a distribution agreement with Ecore and began selling
    Ecore products. Then Mr. Metcalf emailed Pliteq saying that “some very ‘scary’
    facts” regarding the thickness of GenieMats “have forced us to ‘resolve’ this ‘my’
    way.” Mr. Metcalf in turn demanded reimbursement for Pliteq’s purported
    fraudulent advertising about the thickness of GenieMats.
    Marjam sent a formal demand letter to Pliteq claiming that the GenieMats
    were not performing. As part of what Mr. Buller described as a “Blitzkrieg” attack
    on Pliteq, Marjam sent copies of this demand letter to Pliteq’s customers with a
    transmittal indicating that Marjam had “ceased selling GenieMat products”
    because of “recent information about illegal activity brought to our attention.”
    Marjam also sent copies of its Complaint to Pliteq’s customers, including Kast
    Construction (“Kast”), with the knowledge that Pliteq had an existing relationship
    with those customers. Marjam warned the customers, writing: “We are extremely
    concerned about current and future liability.” After receiving Marjam’s email,
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    Kast planned to avoid using Pliteq products until the dispute with Marjam was
    “sorted out.”
    Marjam sued Pliteq for false advertising, breach of warranty, and breach of
    contract alleging Pliteq distributed and sold non-conforming GenieMats. Pliteq
    responded and asserted counterclaims against Marjam, saying that Marjam
    tortiously interfered with contracts and business relationships and engaged in false
    advertising, unfair competition, breach of contract, and copyright infringement.
    Each party moved for summary judgment, which the court granted, in part, on each
    of Pliteq’s and Marjam’s motions. Marjam proceeded to trial on breach of contract
    and breach of warranty claims based on its purported loss of the Met 3 project,
    which it claimed was terminated after the customer found out GenieMats “did not
    provide the required sound insulation attributes.” Pliteq proceeded to trial on its
    tortious interference, false advertising, and unfair competition claims.
    At the close of evidence, Pliteq and Marjam each moved for judgment as a
    matter of law under Rule 50(a). Pliteq argued that Marjam had not presented
    sufficient evidence to support either a breach of warranty or a breach of contract
    claim related to the Met 3 project. The District Court agreed and entered judgment
    as a matter of law against Marjam on those claims.1 Marjam argued that Pliteq had
    1
    At trial, the evidence demonstrated that a range of thickness of the products, known as
    nominal thickness, was consistent with industry practice; was within Pliteq’s reported tolerances;
    and had no practical effect on the GenieMat’s performance. Pliteq also presented evidence that
    4
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    not presented sufficient evidence to prove causation and damages on its
    counterclaims. The District Court denied Marjam’s motion and submitted Pliteq’s
    claims to the jury. The jury found for Pliteq on each of its remaining claims and
    awarded $310,000 in compensatory damages and $800,000 in punitive damages.
    Marjam then filed a motion for judgment as a matter of law under Rule
    50(b), “and/or alternatively” for a new trial under Rule 59. It stated four grounds it
    believed justified a judgment or a new trial: (1) Pliteq did not present sufficient
    evidence of causation to establish damages; (2) the District Court improperly
    excluded the testimony of Diana Manning Yankee, a Kast employee; (3) the
    District Court refused to admit the in-person testimony of Zach Young, one of
    Kast’s vice presidents; and (4) the District Court did not allow Marjam to call its
    acoustical sound expert, Bennett Brooks. The District Court denied Marjam’s
    motion. Marjam timely filed a notice of appeal and now challenges the
    compensatory damages award and the District Court’s denial of its motion for a
    new trial.
    II. STANDARDS OF REVIEW
    This Court reviews de novo the denial of a Rule 50 motion for judgment as a
    matter of law. Nebula Glass Int’l, Inc. v. Reichhold, Inc., 
    454 F.3d 1203
    , 1210
    no Pliteq customer had ever made a warranty claim or sought to return of any of its GenieMat
    product.
    5
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    (11th Cir. 2006). “We consider the evidence in the light most favorable to the non-
    moving party, but we review all evidence in the record and draw all reasonable
    inferences in favor of the nonmoving party without making credibility
    determinations or weighing the evidence.” Mee Indus. v. Dow Chem. Co., 
    608 F.3d 1202
    , 1211 (11th Cir. 2010) (alterations adopted) (quotation marks and
    citation omitted). “When reviewing the record, we must disregard all evidence
    favorable to the moving party that the jury is not required to believe.”
    Id. (quotation marks
    omitted). “Therefore, we should give credence to the evidence
    favoring the nonmovant as well as that evidence supporting the moving party that
    is uncontradicted and unimpeached, at least to the extent that that evidence comes
    from disinterested witnesses.”
    Id. (quotation marks
    omitted).
    We review a District Court’s denial of a Rule 59 motion for a new trial for
    abuse of discretion. Lamonica v. Safe Hurricane Shutters, Inc., 
    711 F.3d 1299
    ,
    1312 (11th Cir. 2013). “New trials should not be granted on evidentiary grounds
    unless, at a minimum, the verdict is against the great—not merely the greater—
    weight of the evidence.”
    Id. at 1312–13
    (alteration adopted) (quotation marks
    omitted).
    III. DISCUSSION
    On appeal, Marjam mainly challenges the District Court’s denial of its Rule
    50 “and/or” Rule 59 motion. As a preliminary matter, we note that Marjam cannot
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    challenge issues under Rule 50(b) that were not raised in its Rule 50(a) motion at
    the close of the evidence and prior to the case being submitted to the jury. Doe v.
    Celebrity Cruises, Inc., 
    394 F.3d 891
    , 903 (11th Cir. 2004). At the close of
    evidence, Marjam argued Pliteq failed to present sufficient evidence of causation,
    but did not challenge the exclusion of the live testimony of Ms. Yankee, Mr.
    Young, or Mr. Brooks. We will therefore decide all arguments, other than
    Marjam’s challenge to the sufficiency of the evidence, as motions made under Rule
    59. McGinnis v. Am. Home Mortg. Serv., Inc., 
    817 F.3d 1241
    , 1254 (11th Cir.
    2016) (explaining party may move under Rule 59 “on the grounds that the verdict
    is against the weight of the evidence, that the damages are excessive, or . . . the
    trial was not fair and may raise . . . substantial errors in admission or rejection of
    evidence” (quotation marks omitted)).
    A. THE DISTRICT COURT DID NOT ERR IN DENYING MARJAM’S RULE
    50 MOTION.
    Marjam argues that Pliteq did not present sufficient evidence to show it lost
    three Kast projects—Aurora Seaside, One St. Pete, and 100 Las Olas—as a result
    of Marjam’s actions. At trial, Pliteq presented evidence that Pliteq was “spec’d,”
    or specified, 2 by the architect to be used in three projects involving Kast. Pliteq
    also introduced a string of emails between Grey Perna, a representative from one
    2
    Trial testimony established that when an architect spec’d a product, the flooring
    subcontractor was more likely to purchase that product.
    7
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    of Pliteq’s GenieMat distributors, and Zach Young, a vice president at Kast. Mr.
    Perna reached out to Mr. Young to inform Young he was working with Pliteq, and
    named GenieMats as a product he would like to review with Kast. Mr. Young
    responded: “Are you familiar with an on-going lawsuit between Marjam and Pliteq
    regarding Geniemat products? I am sure there are two sides to the story, but we
    have been avoiding their products until it is sorted out.” Based on Mr. Young’s
    email and the fact that Pliteq did not make the sale for any of those three projects,
    Pliteq’s expert opined that Pliteq lost profits totaling $1,683,303.
    Marjam first challenges the sufficiency of Pliteq’s evidence on the ground
    that Pliteq was identified “as being only one of alternative product sources” for the
    One St. Pete and 100 Las Olas projects. Marjam also argues that Mr. Young’s
    email is not evidence that Pliteq lost Kast projects because Kast does not make the
    decision about with whom to do business. Rather, the decision about what product
    to use is based on the architect’s specifications (“specs”) for each project.
    Contrary to Marjam’s claim, Pliteq offered sufficient proof as to why the architects
    of those projects elected not to utilize GenieMat. Mr. Downey testified that “Pliteq
    was specified on [those] project[s] by the architect and except for Marjam’s action
    and interference with our customers we would have been used.” And although
    there was another company bidding on these projects, Pliteq offered evidence that
    the other company’s products “would not have had the ability to meet the
    8
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    specifications that were needed.” Marjam did not offer contradictory evidence at
    trial and has not pointed to any on appeal.
    Marjam’s secondary sufficiency-of-the-evidence argument hinges on
    whether the District Court erred in admitting two sets of documents that helped
    prove causation and damages. We will briefly describe the standard of review we
    apply for these evidentiary challenges. For a claim of error that was preserved at
    trial, we review for abuse of discretion. Taylor v. Mentor Worldwide LLC, 
    940 F.3d 582
    , 592 (11th Cir. 2019). For an error not preserved by a trial objection on
    specific grounds, we typically preclude parties from challenging that error on
    appeal. See Fed. R. Evid. 103(a); see also Judd v. Rodman, 
    105 F.3d 1339
    , 1342
    (11th Cir. 1997) (“[A]n objection on specific grounds does not preserve the error
    for purposes of appeal on other grounds.”). Appellate courts may, however,
    review for plain error affecting a “substantial right” even if the claimed error was
    not properly preserved. See United States v. Feldman, 
    936 F.3d 1288
    , 1300 (11th
    Cir. 2019). A finding of plain error is limited solely to those circumstances that
    “undermine the fundamental fairness of the trial and contribute to a miscarriage of
    justice.” United States v. Young, 
    470 U.S. 1
    , 16, 
    105 S. Ct. 1038
    , 1046–47 (1985).
    The appellant must develop their own plain error argument, because we will not
    “develop a plain error argument for the[m].” 1 Jack B. Weinstein & Margaret A.
    Berger, Weinstein’s Federal Evidence, § 103.42 (Matthew Bender 2d ed. 1997);
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    see also Goulah v. Ford Motor Co., 
    118 F.3d 1478
    , 1483 (11th Cir. 1997)
    (declining to review evidentiary ruling “[a]bsent some good reason for failing to
    object at trial”).
    The first set of challenged documents is the Kast project specs for each of
    the three projects, which Marjam claims were inadmissible hearsay. However, at
    trial, Marjam objected only to the admission of the 100 Las Olas specs on hearsay
    grounds. On appeal, Marjam has shown no plain error in the admission of the
    Aurora Seaside and One St. Pete specs, so we decline to review it.
    Even if the District Court erred in admitting the 100 Las Olas specs, any
    error is harmless. The jury awarded lump-sum damages after hearing testimony on
    three separate projects. The jury was asked whether Marjam was liable to Pliteq
    based on any of the three alternative causes of action related to any of the three
    projects. The jury answered in the affirmative on all three causes of action. It was
    then asked to determine the appropriate amount of compensatory damages
    stemming from “any” of Marjam’s actions. The jury chose to award $310,000
    without allocating a specific amount per cause of action or project. It follows that
    Marjam is not entitled to judgment as a matter of law when it has not shown the
    jury’s lump-sum award was specifically based on damages for the 100 Las Olas
    project. See 
    Taylor, 940 F.3d at 594
    n.8 (noting that because damages were
    awarded based on alternative design defect, negligence, and failure-to-warn causes
    10
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    of action, it was not necessary to decide whether the testimony admitted to prove
    the failure-to-warn theory was properly considered by the jury); see also Stewart &
    Stevenson Servs., Inc. v. Pickard, 
    749 F.2d 635
    , 645 (11th Cir. 1984) (holding that
    award based on three causes of action are alternate theories of liability that
    “eliminate any doubt that the award of damages was based wholly on the theory
    improperly submitted to the jury”). We will not disturb the jury’s lump-sum award
    when Marjam has not shown the award was based on the purported 100 Las Olas
    specs error.
    The second document Marjam challenges is the email from Mr. Young, in
    which Kast noted it would avoid using Pliteq products until the dispute with
    Marjam was “sorted out.” The District Court did not specify on what grounds the
    document was admitted because Marjam affirmatively said it had “[n]o objection”
    to the admission of that exhibit. On appeal, Marjam claims that counsel withdrew
    his objection “by sheer oversight,” and that this email does not fall within the
    business records hearsay exception, which constitutes “plain error.”
    Under Federal Rule of Evidence 803(6), documents made and kept in the
    ordinary course of business are admitted as an exception to the hearsay rule. Itel
    Capital Corp. v. Cups Coal Co., Inc., 
    707 F.2d 1253
    , 1259 (11th Cir. 1983). “The
    touchstone of admissibility under the business records exception to the hearsay rule
    is reliability.” United States v. Bueno-Sierra, 
    99 F.3d 375
    , 378 (11th Cir. 1996)
    11
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    (per curiam). Pliteq introduced the Young email as an exhibit through Mr.
    Downey. The Young email did not fall under the business records hearsay
    exception because Mr. Downey did not make or keep that email in the ordinary
    course of Pliteq’s business. See United States v. Jacoby, 
    955 F.2d 1527
    , 1537
    (11th Cir. 1992) (holding that memoranda dictated by witness during closing of
    real estate loans left “no doubt” those documents were prepared in the course of a
    regularly conducted business activity). But under these circumstances the
    admission of the Young email did not undermine the fundamental fairness of this
    trial.
    We are not persuaded by Marjam’s argument that it suffered prejudice
    because Mr. Young’s unobjected-to email was “the sole evidence” supporting
    Pliteq’s damages claim. The plain error standard is stringent; it contemplates a
    range of cases in which we will not disturb a jury verdict despite an evidentiary
    error. And the core of Marjam’s argument is not an evidentiary challenge to the
    trustworthiness of the source of Mr. Young’s email, but a challenge to the
    credibility of the information in the email. See Reply Br. at 3 (“The single,
    innocuous email from Kast’s Young . . . was insufficient to carry Pliteq’s
    burden.”). If Marjam wanted to challenge the content of the Young email, it could
    have cross-examined Mr. Young at his deposition or called other witnesses “to
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    controvert the accuracy” of this email. 3 Equity Lifestyle Props., Inc. v. Fla.
    Mowing & Landscape Serv., Inc., 
    556 F.3d 1232
    , 1244 (11th Cir. 2009). The
    credibility of Mr. Young’s statement—“we’ve been avoiding [Pliteq’s]
    products”—was a question for the jury to weigh.
    Id. The jury
    did just that after
    hearing further testimony from Mr. Young about Kast’s concerns over the use of
    Pliteq’s products after Kast received a copy of Marjam’s complaint. We will not
    disturb the jury’s verdict when there has been no miscarriage of justice and the
    fundamental fairness of trial has not been undermined.
    Consequently, Pliteq presented sufficient proof of causation and damages
    and Marjam’s evidentiary challenges do not show the verdict was against the great
    weight of the evidence. See 
    Lamonica, 711 F.3d at 1312
    –13.
    B. THE DISTRICT COURT DID NOT ERR BY DENYING MARJAM’S RULE
    59 MOTION.
    Marjam argues that three evidentiary errors entitled it to either judgment as a
    matter of law or a new trial. First, Marjam claims the District Court erred by
    excluding the in-person testimony of Mr. Young, one of Kast’s vice presidents.
    Second, Marjam argues the District Court improperly excluded the testimony of
    Ms. Yankee, a Kast employee. Third, Marjam claims the District Court erred
    when it did not allow Marjam to call its acoustical sound expert, Mr. Brooks.
    3
    Below, we address Marjam’s argument that the District Court erred by not allowing
    Marjam to call Mr. Young as a live witness at trial.
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    Marjam also raises several other purported errors for the first time on appeal.
    None warrant reversal.
    1. The District Court Did Not Abuse its Discretion by Limiting Mr.
    Young’s Testimony to Deposition Testimony.
    Marjam claims the District Court erred when it refused to allow Mr. Young
    to testify “for rebuttal/impeachment purposes.” Marjam did not identify Mr.
    Young as a witness, but “intend[ed] to subject [him] to vigorous cross-
    examination” because Pliteq had listed Young on its witness list. At trial, Pliteq
    removed Mr. Young from its final witness list, prompting Marjam to add Young to
    its list. Marjam explained it wanted to ask Mr. Young about the 100 Las Olas
    project and Marjam’s counsel thought he would be able to cross-examine Mr.
    Young. The District Court limited Mr. Young’s testimony to his deposition
    testimony instead of allowing Marjam to call Mr. Young belatedly. Marjam
    challenges that decision, characterizing it as a “refusal to permit . . . Young to
    testify” altogether.
    Fatal to Marjam’s claim is its failure to show prejudice. The District Court
    did not completely exclude Mr. Young’s testimony—the jury heard his deposition
    testimony. And Marjam has never argued that, had Mr. Young testified in person,
    he would have said anything different than what he testified to in his deposition. 4
    4
    To the extent Marjam claims that, at trial, they would have asked Mr. Young about the
    100 Las Olas specs, this is not sufficient to show prejudice. Marjam knew Pliteq had identified
    the 100 Las Olas project as a basis for damages and Marjam had the opportunity to ask Mr.
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    Marjam’s challenge fails on that basis alone. See Edic v. Century Prods. Co., 
    364 F.3d 1276
    , 1286 (11th Cir. 2004) (affirming evidentiary ruling because appellant
    “fail[ed] to explain how these rulings prejudiced them”).
    2. The District Court Did Not Abuse its Discretion by Excluding Ms.
    Yankee’s Testimony.
    Next, Marjam claims the District Court erred when it refused to allow Ms.
    Yankee to testify. Marjam moved to call Ms. Yankee as a witness the night before
    the sixth day of trial because it had discovered within the two days prior that
    Yankee was “in possession of critical evidence not previously disclosed” that
    would “refute” Pliteq’s damages case. Marjam explained that Ms. Yankee would
    testify that Kast had not yet solicited bids or awarded contracts on its 100 Las Olas
    project—meaning that Pliteq’s assertion it suffered damages from the loss of this
    project was false. Marjam characterized Ms. Yankee as a rebuttal witness called to
    impeach both Mr. Downey’s and Pliteq’s expert’s testimony that Pliteq lost
    $630,589 on the 100 Las Olas project. The District Court held that the 100 Las
    Olas project was identified as a basis for damages in August 2017, at the latest, and
    therefore information about that project was not newly discovered evidence.
    In reviewing for abuse of discretion a court’s exclusion of an undisclosed
    witness, we consider “(1) the importance of the testimony; (2) the reason for the
    Young questions on this topic at his deposition. However, Marjam failed to ask the questions it
    now claims it was deprived of asking at trial.
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    appellant’s failure to disclose the witness earlier; and (3) the prejudice to the
    opposing party if the witness had been allowed to testify.” Bearint v. Dorell
    Juvenile Grp., Inc., 
    389 F.3d 1339
    , 1353 (11th Cir. 2004). Regardless of the
    alleged importance of Ms. Yankee’s testimony, the reasons for the delay in
    Marjam’s disclosure and the “consequent prejudice” from her testimony require us
    to affirm the District Court’s ruling.
    Id. Marjam’s own
    failure to discover Ms. Yankee’s testimony is not reason to
    find the District Court abused its discretion. The District Court afforded the parties
    a significant amount of discovery and several discovery extensions. And Marjam
    knew Pliteq would be claiming damages based on Kast projects, including the 100
    Las Olas project, as early as August 2017. Marjam claims it did not know of Ms.
    Yankee’s specific testimony until Friday, May 4, and did not disclose Yankee until
    Sunday, May 6, the night before the sixth day of trial. At this late hour, Pliteq
    “would have been blindsided by a new witness offering facts directly contradicting
    its own account of events.”
    Id. at 1354.
    Marjam has not offered any reason for its
    delay in disclosing Ms. Yankee other than to blame Pliteq for not disclosing her as
    a person with information. Marjam’s failure to discover Ms. Yankee’s testimony
    is not an error by the District Court.
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    3. The District Court Did Not Abuse its Discretion by Prohibiting Marjam
    from Calling Mr. Brooks as a Rebuttal Expert.
    Marjam claims the District Court erred by refusing to allow Mr. Brooks, its
    acoustical expert, to testify that Pliteq cut the GenieMats thinner than advertised.
    Marjam claims now on appeal that Pliteq gamed the system by removing their
    expert from the final witness list, so that Mr. Brooks, who Marjam named only as a
    rebuttal expert, could not testify. At trial, the District Court’s decision on this
    matter was concise: Mr. Brooks could not testify “[b]ecause there is nobody to
    rebut.”
    “[I]n judging whether the exclusion of a[n] [expert] witness was an abuse of
    discretion, an appellate court should consider the explanation for the failure to
    disclose the witness, the importance of the testimony, and the prejudice to the
    opposing party.” Fabrica Italiana Lavorazione Materie Organiche, S.A.S. v. Kaiser
    Aluminum & Chem. Corp., 
    684 F.2d 776
    , 780 (11th Cir. 1982). Though the
    testimony appears to have been crucial to Marjam’s case-in-chief, Marjam has
    provided no explanation for failing to name Mr. Brooks as its own affirmative
    expert as opposed to a rebuttal expert. The District Court did not err here. Marjam
    made a strategic error in litigating its case, and its failure to name Mr. Brooks as an
    expert witness to prove its affirmative claims cannot be blamed on the District
    Court.
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    4. The District Court Did Not Abuse Its Discretion In Making Other
    Evidentiary Rulings.
    Marjam claims the District Court made several other erroneous rulings.
    These challenges fall into two categories. In the first category are purported errors
    raised without legal argument in the fact section of Marjam’s appellate briefs. In
    the second category, Marjam challenges portions of Mr. Downey’s testimony,
    statements made in Pliteq’s counsel’s closing arguments, and a jury instruction.
    Marjam has waived its ability to challenge the rulings in the first category. See
    Sapuppo v. Allstate Floridian Ins. Co., 
    739 F.3d 678
    , 681 (11th Cir. 2014) (“A
    party fails to adequately brief a claim when he does not plainly and prominently
    raise it, for instance by devoting a discrete section of his argument to those
    claims.” (quotation marks omitted)). And its challenges to the rulings in the
    second category fail on the merits.
    First, Marjam makes conclusory statements about various rulings. Marjam
    claims (1) the District Court improperly admitted a Pliteq exhibit listing invoices
    of GenieMats made by Ultimate RB; and (2) the District Court erred in excluding
    portions of Mr. Metcalf’s testimony, which Marjam intended to use to establish a
    “justification” defense. Because Marjam has not offered any legal arguments to
    support these purported errors, we will not disturb the District Court’s rulings. See
    
    Sapuppo, 739 F.3d at 681
    .
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    In the second category, Marjam claims the District Court failed to exclude a
    portion of Mr. Downey’s allegedly improper expert trial testimony “on a wide
    range of highly technical matters.” Mr. Downey testified that Pliteq relies on third-
    party laboratories and professional experts to test its products, including the
    thickness of its products. The District Court limited this evidence to Mr.
    Downey’s testimony based on his “background and experience and because he
    contracts with various persons to perform tests” and did not allow Pliteq to
    introduce the tests themselves. Mr. Downey testified further that he was familiar
    with how GenieMats were made and how these tests were performed because he
    has “been in manufacturing for these products since 1992” and was the inventor of
    the GenieMat. Our precedent makes clear the District Court did not err by
    allowing this testimony in. We have long held that a business owner may offer lay
    witness opinions based upon his “particularized knowledge garnered from years of
    experience within the field.” Tampa Bay Shipbuilding & Repair Co. v. Cedar
    Shipping Co., Ltd., 
    320 F.3d 1213
    , 1223 (11th Cir. 2003). As such, this testimony
    was not admitted in error.
    Marjam also points to certain statements made by Pliteq’s counsel in closing
    argument, including, among others, that counsel “improperly vouched for
    Downey’s credibility and so-called ‘honesty,’ perpetuated Pliteq’s lie about its
    purported loss of the 100 Las Olas project, and mischaracterized the clear and
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    convincing standard for punitive damages.” Yet again, Marjam did not object to
    these statements. When reversal is premised “on improper comments of counsel,
    the conduct of counsel must be such as to impair gravely the calm and
    dispassionate consideration of the case by the jury.” Newman v. A.E. Staley Mfg.
    Co., 
    648 F.2d 330
    , 334 (5th Cir. 1981) (quotation marks omitted). 5 Because
    Marjam does not explain how it was prejudiced, this claim fails. 
    Edic, 364 F.3d at 1286
    .
    Finally, Marjam argues the jury instruction on “clear and convincing
    evidence” was improper. Even though it had several chances to object when the
    parties were proposing and finalizing jury instructions, Marjam failed to do so. In
    the absence of an objection to the instruction before the jury retires to consider its
    verdict, “we will reverse only in exceptional cases where the error is so
    fundamental as to result in a miscarriage of justice.” Iervolino v. Delta Air Lines,
    Inc., 
    796 F.2d 1408
    , 1414 (11th Cir. 1986) (quotation marks omitted). No
    miscarriage of justice occurred here. The District Court adopted the joint proposed
    jury instruction, which was identical to this Court’s Pattern Instruction. The
    proposed instruction and the instruction read to the jury were essentially the same,
    5
    In Bonner v. City of Prichard, 
    661 F.2d 1206
    (11th Cir. 1981) (en banc), we adopted as
    binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
    Id. at 1209.
    20
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    and Marjam has not pointed to any other evidence showing the jury was confused
    about the burden of proof.
    IV. CONCLUSION
    For the reasons set forth above, we AFFIRM the District Court’s order
    denying Marjam’s motion for judgment as a matter of law and/or a new trial and
    AFFIRM the jury’s verdict and damages award.
    21