Opinion
4:01CV603
March 29, 2004
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR REDUCTION OF DAMAGES
After the jury returned a verdict in favor of the plaintiff, Nebraska Plastics, Inc. (Nebraska Plastics) and against the defendant, Holland Colors Americas, Inc. (Holland Colors), the defendant moved to reduce the damages awarded against it to account for a settlement that occurred between the plaintiff and another defendant. (See filing 278.) This motion is now ripe for resolution, and my analysis of the parties' positions is presented below.
I. BACKGROUND
The plaintiff filed a complaint against Holland Colors and OMYA, Inc. (OMYA), alleging that each defendant breached implied warranties of fitness for a particular purpose, breached implied warranties of merchantability, breached express warranties, negligently designed and manufactured certain materials, made negligent misrepresentations, and engaged in fraudulent concealment, thereby causing the plaintiff to suffer damages. (See Notice of Removal, filing 1, Attach 1.) The plaintiff's damages resulted from warranty claims that were made against it, or were reasonably certain to be made against it in the future, by its customers. More specifically, Nebraska Plastics produced a large quantity of colored polyvinyl chloride (PVC) products, such as fencing, and many customers complained that these products excessively faded or "chalked." A jury trial began on November 17, 2003. During the trial, the plaintiff and OMYA reached a settlement. (See Def.'s Index of Evidence, filing 280, Ex. 1.) Pursuant to this settlement, Nebraska Plastics released "any and all claims" it had against OMYA, and OMYA paid a sum of money to Nebraska Plastics. (See id., see also Pl.'s Index, filing 284, Ex. 2.) The trial continued without OMYA's participation, and the jury returned a verdict in favor of Nebraska Plastics on its claims that Holland Colors breached the implied warranty of fitness for a particular purpose, breached the implied warranty of merchantability, negligently designed and manufactured materials, made negligent misrepresentations, and engaged in fraudulent concealment. In assessing damages, the jury arrived at identical dollar figures for each of these claims, but specifically indicated that the amounts awarded under each claim were not for the same loss. (See filing 272 at 4-7, 9.) Therefore, the damages awarded under each claim must be summed in order to determine the total amount of the verdict. Under each claim, the jury assessed damages for seven different categories of injury that had been alleged by the plaintiff. Specifically, these were damages "[f]or the value of fence replacements for finished field claims," "[f]or the value of fence replacements for pending field claims," "[f]or the value of fence replacements for potential claims," "[f]or the value of lost profits from producing replacement materials," "[f]or the value of management compensation and fringe benefits incurred for time spent on colored fencing warranty matters," "[f]or the value of returned faulty colored inventory," and "[f]or the value of claims expected to be incurred in the future." (See filing 272.) However, I have determined that there was not sufficient evidence to allow the jury to estimate "the value of claims expected to be incurred in the future" with a reasonable degree of certainty and exactness. (See generally Mem. and Order on Def.'s Mot. for J. as a Matter of Law on the Issue of Future Damages.) As a result, the future damages awards have been stricken.
On this claim the jury found that the plaintiff bore a percentage of the fault. (See filing 272 at 2.)
Although the jury awarded the same amount for the plaintiff's negligence in design and manufacturing claim as it did for each of the other four claims, this amount was reduced by the percentage of the plaintiff's own fault. (See filing 272 at 4-5.)
Again, the amounts awarded within each of these categories of injury were identical across all claims. (See generally filing 272.)
Holland Colors now requests that the damages award against it be reduced by the amount of the settlement between Nebraska Plastics and OMYA.
II. ANALYSIS
In Jameson v. Liquid Controls Corp., 618 N.W.2d 637 (Neb. 2000), the Supreme Court of Nebraska considered the question presented by Holland Colors: whether a jury verdict against a defendant must be reduced because the defendant is entitled to a credit based upon a settlement between the plaintiff and another defendant. InJameson, Richard Jameson was injured when gasoline vapor from a fuel delivery truck owned by his employer, Sandhill Oil Company, escaped and ignited. See id. at 641. The truck was outfitted with at fuel pump manufactured by Blackmer and a fuel meter manufactured by Liquid Controls. See id. Jameson and Sandhill filed a petition against Blackmer and Liquid Controls, alleging separate theories of negligence and strict liability as to each defendant and a loss of consortium claim that was assigned to Jameson by his wife, Tammi.See id. Before the case was submitted to the jury, Blackmer settled with the plaintiffs and was dismissed from the case.See id. at 642. "Blackmer agreed to pay a total of $1[.]425 million in settlement as follows: (1) $25,000 to Garnett Jameson, Richard's mother, and Allan Jameson, and (2) $1.4 million to Richard and Tammi Jameson. Of this $1.4 million, $250,000 was to be used to fund a trust for Richard's benefit and $950,000 was to be paid directly to Richard. The record is unclear if the remaining $200,000 was to be paid directly to Tammi Jameson or paid to Richard as the assignee of Tammi Jameson's loss of consortium claim." Id. at 642. Meanwhile, the case against Liquid Controls was submitted to the jury with Richard Jameson as the only plaintiff and strict liability as the only theory of recovery. See id. The jury was told that Blackmer was no longer a party to the case, and was not asked to apportion or consider Blackmer's liability. See id. The jury returned a verdict in favor of Richard Jameson in the amount of $5 million. See id. Liquid Controls moved for a reduction of the judgment based upon the Blackmer settlement.See id.
Allan Jameson was Richard's father and the owner and operator of Sandhill Oil Co. See Jameson, 618 N.W.2d at 641.
The court concluded that Liquid Controls was entitled to a pro tanto reduction of the jury verdict. See Jameson, 618 N.W.2d at 644, 650.
Richard and Sandhill alleged, inter alia, in their petition, that Blackmer and Liquid Controls, through strict liability, were each responsible for the July 16, 1995 accident that caused Richard's injuries. They did not allege separate acts leading to separate injuries. Instead, they sought an unspecified amount of damages against these two defendants as redress for the injuries Richard suffered in the accident. The jury determined that as a result of the injuries which Richard had suffered in the accident, he was entitled to a total of $5 million in damages. Since the jury found that $5 million is Richard's total award of damages for the injuries which he sustained in the July 16 accident, to the extent he received satisfaction from Blackmer for those same injuries, Liquid Controls is entitled to a pro tanto reduction of the judgment.Jameson v. Liquid Controls Corp., 618 N.W.2d 637, 644-45 (Neb. 2000). The district court was ordered to "determine what portion of the $1.425 million settlement was paid either to Richard or on his behalf and . . . award Liquid Controls a pro tanto credit against the $5 million judgment against it in [this amount.]" Id. at 645.
The court's decision was based upon a rule it previously announced inVowers Sons, Inc. v. Stracheim, 576 N.W.2d 817 (Neb. 1998).
In Vowers Sons, Inc., the plaintiff-seller, Vowers Sons, sued the defendant-buyer, Jerry Strasheim, alleging breach of a contract to purchase real estate. In a separate previous action, Vowers Sons had sued Sheila Newell, the real estate agent who had prepared the purchase agreement, for negligence. Newell had paid an undisclosed sum of money in settlement of the claim, and as a result, the action against Newell had been dismissed with prejudice.
. . . We noted . . . that the separate claims asserted against Strasheim and Newell seemed to seek redress for the same injury, and we stated the following:
Our determination that this action against Strasheim may proceed does not mean that Vowers Sons would be entitled to recover damages for the same injury twice. . . . As a general rule, a party may not have double recovery for a single injury, or be made "more than whole" by compensation which exceeds the actual damages sustained. . . . Where several claims are asserted against several parties for redress of the same injury, only one satisfaction can be had. . . . Thus, to the extent that Vowers Sons has received satisfaction from the settlement with Newell for injury and damage alleged in this action, any damages for which Strasheim would be potentially liable must be reduced pro tanto.Jameson v. Liquid Controls Corp., 618 N.W.2d 637, 644 (Neb. 2000) (quoting Vowers Sons, Inc., 576 N.W.2d at 825).
Here, as in Vowers Sons, Inc., the plaintiff asserted several claims against two parties for redress of the same injuries. Nebraska Plastics alleged that Holland Colors and OMYA, through breaches of implied warranties of fitness for a particular purpose, breaches of implied warranties of merchantability, breaches of express warranties, negligent design and manufacture, negligent misrepresentations, and fraudulent concealment, were each responsible for warranty claims that had been or would be asserted against Nebraska Plastics. There is no doubt that the claims against both defendants sought redress for the same harm, and the plaintiff has received satisfaction from the settlement with OMYA for the injuries and damages alleged in its action against Holland Colors. Therefore, Holland Colors is entitled to a credit against the damages awarded by the jury equal to the full amount of the settlement paid by OMYA.
The plaintiff submits four arguments in opposition to the defendant's motion: "(1) [Holland Colors] fails to address precedent which holds that an intentional tortfeasor is not entitled to benefit from settlement amounts paid by a settling defendant[;] (2) [Holland Colors] fails to take into account other case law in Nebraska; (3) the settlement with OMYA was not for the same injury[;] and (4) the settlement with OMYA encompassed additional consideration given as part of the settlement." (Filing 283 at 1.)
A. Whether There Is an Intentional Torts Exception to the Pro Tanto Reduction Rule
As the plaintiff correctly notes, a portion of the total damages was awarded against Holland Colors for its fraudulent concealment, which is an intentional tort. Citing Evans v. Dean Witter Reynolds, Inc., 5 P.3d 1043 (Nev. 2000), the plaintiff argues that the settlement credit must be reduced by the amount of the fraudulent concealment award because intentional tortfeasors are not entitled to an offset for amounts paid by a settling joint tortfeasor. (See filing 283 at 3.) In Evans, the court cited two reasons why "intentional tortfeasors . . . may not apply credit from settlements by their joint tortfeasors . . . in reduction of judgments against them arising from the intentional misconduct." Evans, 5. P.3d at 1050. "First, and fundamentally, payments made in settlement of an intentional tort claim and applied to reduce another tortfeasor's payment of the claim by one of the joint tortfeasors would constitute equitable relief by way of an equitable setoff. Under the maxim that one seeking equity may not do so with 'unclean hands,' an intentional tortfeasor by definition seeks such relief from a position of ineligibility for it."Id. at 1050-51. Second, the court concluded that Nevada's "Contribution Among Tortfeasors" statute prohibits credits that benefit intentional tortfeasors. See id.
To the extent that it is based upon an interpretation of Nevada statutes, Evans carries little persuasive force. However, the plaintiff submits that Nebraska, like Nevada, embraces the concepts that "one seeking the assistance of the court in equity to obtain relief cannot come in with unclean hands," (filing 283 at 4 (citing Olsen v. Olsen, 657 N.W.2d 1 (Neb. 2003)), and that "there is no right to contribution among parties jointly liable for intentional wrongdoing," (id. (citing Royal Indemnity Co. v. Aetna Casualty and Surety Co., 229 N.W.2d 183, (Neb. 1975)). The second concept is not implicated in this case. Although it is true that there is no right to contribution among intentional tortfeasors in Nebraska, the issue before me is not whether Holland Colors is entitled to contribution from OMYA. Nebraska has not demonstrated Nevada's willingness to blur the concepts of contribution and settlement credit. Parenthetically, I note that the Supreme Court of Nebraska criticized jurisdictions that prohibit settlement credits when there has not been a determination of liability on the part of the settling defendant. See Jameson, 618 N.W.2d at 645. This suggests that in Nebraska, comparative fault between defendants is irrelevant to the non-settling defendant's eligibility for a pro tanto reduction of the judgment.
As to the question of equity and unclean hands, it seems to me that the Supreme Court of Nebraska has not based its decisions inJameson and Vowers Sons, Inc. upon matters of fairness concerning the relative contributions of the defendants to the judgment. If it had, it might have chosen to embrace a "pro rata reduction" rule. Instead, the court emphasized different considerations. First, it has founded its decisions upon the principle that plaintiffs are not entitled to "be made 'more than whole' by compensation which exceeds the actual damages sustained." Jameson v. Liquid Controls Corp., 618 N.W.2d 637, 644 (Neb. 2000) (quotingVowers Sons, Inc. v. Stracheim, 576 N.W.2d 817, 825 (Neb. 1998)). To allow double recoveries whenever a defendant is found liable for an intentional tort would defeat this clearly stated principle.
See Jameson v. Liquid Controls Corp., 618 N.W.2d 637, 644 (Neb. 2000) (discussing pro tanto and pro rata reductions).
Second, and relatedly, the Nebraska court's analysis instructs that a defendant's eligibility for a settlement credit hinges upon a determination that the plaintiff has received satisfaction for the injuries alleged in his action. In other words, courts in Nebraska must look to the injuries suffered by the plaintiff to determine whether a settlement credit ought to be allowed, and "to the extent that [the plaintiff] has received satisfaction from the settlement with [one defendant] for injury and damage alleged in this action, any damages for which [the second defendant] would be potentially liable must be reduced pro tanto." Jameson v. Liquid Controls Corp., 618 N.W.2d 637, 644 (Neb. 2000) (quoting Vowers Sons, Inc., 576 N.W.2d at 825). There is no instruction that the court look to the specific causes of action alleged against each defendant when determining a defendant's eligibility for a settlement credit. Indeed, in Vowers Sons, Inc., the cause of action alleged against the settling defendant (negligence) differed from the cause of action alleged against the remaining defendant (breach of contract). This did not present a bar to settlement credit, provided that the plaintiff received satisfaction from the settlement for the injuries alleged against the remaining defendant. See Vowers Sons, Inc., 576 N.W.2d at 825. It seems to me that the Supreme Court of Nebraska is not inclined to carve out exceptions to its settlement credit rule that depend upon the cause of action alleged by the plaintiff.
It is true that theoretically, the Nebraska rule may allow an intentional tortfeasor to avoid contributing to a judgment. Whether or not such occasions arise depends upon matters that are beyond the tortfeasor's control, such as the nature of the jury's verdict, the amount of the damages awarded by the jury, and the amount of the consideration paid by the settling defendant. Conversely, the Nevada rule may, on occasion, allow a plaintiff to receive a double recovery for a single injury. In adopting the pro tanto reduction rule, the Supreme Court of Nebraska clearly sought to prevent plaintiffs from having more than one satisfaction for the same injury in cases where several claims are asserted against several defendants: If a plaintiff suffers a single injury and negotiates a settlement with one defendant, Nebraska law prohibits the plaintiff from obtaining a damages award against another defendant that makes the plaintiff "more than whole." I am not convinced that Nebraska law allows for an exception to this rule that permits double recoveries simply because a defendant is found liable for an intentional tort.
At bottom, the plaintiff's invocation of the Nevada rule, the principle of unclean hands, and the rule barring contribution between intentional tortfeasors amounts to an argument that OMYA will be forced to bear an unfair share of the amount of the judgment if a pro tanto reduction in the judgment is made. Even if I were to assume that OMYA's voluntary settlement with Nebraska Plastics appears "unfair" in hindsight, it seems to me that the allocation of responsibility for the damages award would be a matter of "contribution" to be resolved between the defendants. The plaintiff has not persuaded me that it has an interest in this allocation-indeed, it should matter not to the plaintiff which of the defendants pays the judgment as long as it receives satisfaction for its injuries, and, as the Nebraska Supreme Court has said, a settlement credit in an instance where a plaintiff has suffered a single injury does not thwart the plaintiff's right to satisfaction.
B. Whether the Settlement Credit is Barred by Revised Statute of Nebraska § 25-1222.01
Next, citing Maxwell v. Montey, 656 N.W.2d 617 (2003), Nebraska Plastics argues that Holland Colors is not entitled to a settlement credit because OMYA's payment to Nebraska Plastics was not made "on behalf of" Holland Colors, but was "in exchange for releasing and dismissing OMYA from the suit." (Filing 283 at 5-6.) This argument is easily rejected. In Maxwell, the defendants seeking the credit "framed their motion, and the district court decided their motion, solely as a motion for a credit pursuant to § 25-1222.01." Maxwell v. Montey, 656 N.W.2d at 621. Holland Colors' request for a settlement credit is not based upon this statute.
C. Whether the Settlement with OMYA Was for the Satisfaction of the Same Injury Alleged in the Action Against Holland Colors
The plaintiff also argues that Holland Colors is not entitled to a settlement credit because "the amount of the settlement with OMYA was for separate and distinct items of consideration, and [was] not for the 'same injury' as the injury compensated by the jury's verdict against [Holland Colors]." (Filing 283 at 6.)
First, citing Zivitz v. Greenberg, 279 F.3d 536 (7th Cir. 2002), the plaintiff argues that the jury found that Holland Colors' actions "led to a distinct harm, and the jury found for the plaintiff solely on the conduct of [Holland Colors] and not for the actions of OMYA." (Filing 283 at 6.) In Zivitz, the court discussed an Illinois rule counseling that "[n]onsettling tortfeasors . . . are entitled to a setoff only for damages that are awarded for the same injury for which the settling defendants compensated the plaintiff."Zivitz, 279 F.3d at 539. The court affirmed the district court's refusal to order a setoff, finding that the non-settling defendant caused a harm distinct from that caused by its co-conspirators. Specifically, the court pointed out that the non-settling defendant lied to the plaintiffs about the financial condition of a company, which led the plaintiffs to hold onto the company's stock "longer than they should have." Id. at 540.
The instant case is not dissimilar from Zivitz in that Nebraska Plastics alleged that Holland Colors made misrepresentations that caused the plaintiff to continue to manufacture defective products "longer than it should have." However, Nebraska Plastics alleged thatOMYA made substantively identical misrepresentations. (See, e.g., Mem. and Order on Defs.' Mot. for Summ. J., filing 213, at 5-8.) I am not persuaded that in this case, the acts of OMYA and Holland Colors led to distinct injuries.
Still relying on Zivitz, the plaintiff also submits that it is relevant that the jury was not asked to assess injuries that resulted from OMYA's conduct. (See filing 283 at 7.) It is true that inZivitz, the Seventh Circuit stated that because the jury was instructed to compensate the plaintiffs only for the injury caused by the non-settling defendant, the court could only "speculate whether the jury was compensating the plaintiffs for the same injury covered by the settlements." Zivitz, 279 F.3d at 540-41. However, it is clear that in Nebraska, an instruction directing the jury to consider only the non-settling defendant's liability is not fatal to a claim for a pro tanto reduction to account for a settlement. In Jameson v. Liquid Controls, Inc., 618 N.W.2d 637, 642, 644-45 (Neb. 2000), the court noted that the jury was not asked to consider or apportion the settling defendant's liability, but concluded nevertheless that a settlement credit was appropriate because the separate claims against the defendants addressed the same injury. The court was not required to engage in speculation to reach this result. Similarly, my determination that Nebraska Plastics's multiple claims against both OMYA and Holland Colors address the same injury is not based upon speculation.
Next, the plaintiff argues that because "[t]he jury did not find liability on the part of [Holland Colors] under express warranty," I should conclude that "the OMYA [settlement] payment was for Nebraska Plastics claim against OMYA for breach of express warranty." (Filing 283 at 8.) This argument is not well-taken and merits little comment. I note only that if different theories of recovery are asserted against two defendants, it does not follow that the plaintiff must have suffered two separate injuries. This is made clear in Vowers Sons, Inc. v. Stracheim, 576 N.W.2d 817 (Neb. 1998), where it was noted that a negligence claim against a real estate agent and a breach of contract claim against a real estate buyer seemed to seek satisfaction for the same injury. See also Jameson v. Liquid Controls Corp., 618 N.W.2d 637, 644 (Neb. 2000). It is true that in this case, the jury indicated that the damages awarded under each claim against Holland Colors were meant not to be for the same loss. (See filing 272.) Nevertheless, the relevant inquiry here is whether the separate claims asserted against OMYA and Holland Colors sought redress for the same injury. If this inquiry is answered in the affirmative, it matters not that the jury indicated that separate claims against one defendant supported damages for different losses.
The plaintiff also points out that the OMYA settlement addressed future damages. Given my determination that the evidence was insufficient to support the jury's award of future damages, (see Mem. and Order on Mot. for J. as a Matter of Law on the Issue of Future Damages), it could be argued that the OMYA settlement redresses injuries that are not redressed by the portion of the jury verdict that remains. Further, one might argue that the portion of the settlement that compensated the plaintiff for future warranty claims ought to be calculated and deducted from any credit that Holland Colors receives.
Even if it were possible to make such a calculation and eliminate any credit based upon the "future damages portion" of the settlement, in this case I do not think it would be appropriate to do so. It is true that Nebraska's pro tanto credit rule is based, in part, upon the principle that "a party may not have a double recovery for a single injury," Vowers Sons, Inc. v. Stracheim, 576 N.W.2d 817, 825 (Neb. 1998), and that this principle is not implicated when a settlement accounts for damages that are not ultimately awarded against a non-settling defendant. In other words, it cannot be said that Nebraska Plastics would recover twice on its claim of future damages, because future damages have been stricken from the verdict. However, the Nebraska rule is also based upon the principle that a plaintiff may not "be made 'more than whole' by compensation which exceeds the actual damages sustained." Vowers Sons, Inc., 576 N.W.2d at 825. In this case, the actual damages sustained by the plaintiff amounted to approximately $770,000.00, after the future damages award is stricken. (See filing 272.) If the entire amount of the OMYA settlement is not deducted from the actual damages sustained, then the plaintiff will be made more than whole; it will receive compensation that exceeds the actual damages sustained.
In this case, I see no principled basis upon which the portion of the settlement that addressed future damages could be calculated. First, the settlement documents themselves do not include such an allocation. Second, the jury verdict cannot be used to calculate a proportion of the damages awarded for future warranty claims, because I have concluded that there is insufficient evidence to support this calculation with reasonable certainty. (See Mem. and Order on Mot. for J. as a Matter of Law on the Issue of Future Damages.) In other words, the evidence submitted at trial cannot yield a "future damages ratio" that could be applied to determine the amount of the settlement that concerned future damages.
It must be borne in mind that this is not a case wherein the plaintiff sought future damages against the settling defendant but not against the non-settling defendant. Nor is this a case wherein the plaintiff sought to redress two distinct future injuries from two defendants. Instead, Nebraska Plastics sought redress for a single injury from two defendants. Specifically, Nebraska Plastics argued that it produced approximately 10 million pounds of defective product; that only a relatively small portion of that quantity has been the subject of warranty claims to date, and that the remaining quantity was reasonably certain to be the subject of warranty claims in the future. Nebraska Plastics sought damages to redress these future warranty claims from both defendants. However, the plaintiff's evidence was insufficient to provide a basis for estimating future damages with a reasonable degree of certainty and exactness. If Holland Colors' settlement credit were reduced by an amount that was meant to preserve settlement money for future damages claims, Nebraska Plastics would not only receive compensation exceeding the actual damages sustained (i.e., approximately $770,000 plus the amount deducted from the settlement credit), but Holland Colors would be forced to bear the cost of the settlement value of a future damages claim that could not be proven at trial. Thus, the plaintiff would receive an award in excess of the damages it sustained; Holland Colors would be required to fund the excess, although it proceeded to trial and defended successfully against the plaintiff's future damages claim; and, in a final twist, the amount of the excess would be based upon a settlement agreement that Holland Colors took no part in. I do not believe that Nebraska law abides an outcome that would allow the plaintiff to benefit from its own failure of proof. Instead, Nebraska law counsels that a plaintiff is entitled to recover the actual damages it sustains from a single injury, but no more. In this case, the plaintiff suffered one injury (i.e., it was caused to produce a defective product) and it claimed that both defendants were responsible for all of the damages flowing from this injury; however, only a portion of the damages flowing from the injury was proven at trial. The plaintiff shall not be compensated with an award that, when combined with the settlement, exceeds the amount that it can prove. This would certainly make the plaintiff "more than whole." Jameson v. Liquid Controls Corp., 618 N.W.2d 637, 644 (Neb. 2000) (quoting Vowers Sons, Inc. v. Stracheim, 576 N.W.2d 817, 825 (Neb. 1998)). Therefore, the judgment must be reduced by the full amount of the settlement.
The plaintiff submits that since the settlement agreement sets forth "other consideration," such as confidentiality of the settlement amount, waiver of an appeal of my order granting summary judgment in favor of OMYA on certain claims, the dismissal of all claims against OMYA, and so on, (see filing 283 at 2, 9; filing 295 at 1-2), Holland Colors cannot claim credit for the entire amount of the settlement. I am not persuaded. As I have stated repeatedly above, Nebraska Plastics filed the same claims against OMYA and Holland Colors, seeking redress for the same injury from both defendants. Nebraska Plastics' suggestion that the agreement between OMYA and Nebraska Plastics encompassed something significantly different from the settlement of the plaintiff's claims against OMYA is not well-taken. I find that the settlement was reached in satisfaction of the plaintiff's claims against OMYA, and that the claims against OMYA and Holland Colors sought redress for the same injury. The settlement agreement's inclusion of peripheral matters, critical though they may be, does not alter the fact that a settlement credit is owed in this case.
IT IS ORDERED that the defendant's motion for reduction of damages, filing 278, is granted. When judgment is entered, it shall reflect a credit for the amount of the settlement between the plaintiff and OMYA, Inc.
IT IS FURTHER ORDERED that the plaintiff's motion for oral argument in opposition to the defendant's motion for reduction of damages, filing 285, is denied.