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Helena Chemical Co. v. Nelson


December 29, 2000


The opinion of the court was delivered by: Simandle, District Judge


After a five-day jury trial, the jury in this case found that the counterclaim plaintiff Jesse Nelson, Sr. t/a Nelson Farms, proved damages in the amount of $310,826 proximately caused by the negligence of counterclaim defendant Helena Chemical Co. in applying weed-killing chemicals to Nelson's fields in the Spring of 1996. The Court entered Judgment in this amount in favor of Nelson on October 3, 2000.

Presently before the Court are (1) the motion of plaintiff Helena Chemical Co. ("Helena") for new trial or in the alternative for remittitur pursuant to Rule 59, Fed. R. Civ. P.; and (2) the motion of defendant Jesse Nelson, Sr. ("Nelson") to amend the final judgment entered in this case on October 3, 2000 to add prejudgment interest, pursuant to Rule 59 and New Jersey Court Rule 4:42-11(b).

In the original complaint in this case, Helena sought payment of $78,000 plus interest and contractual attorney fees that it said Mr. Nelson owed for the cost of chemicals and services expended on his fields. In response, Mr. Nelson filed counterclaims asserting that he owed Helena nothing for the reason that Helena was instead liable to him for damages caused to his fields by Helena's negligent application of its chemicals which caused loss of crops in 1996 and 1997.

This Court entered an Opinion and Order in this case dated June 22, 2000 granting Nelson's motion for summary judgment in favor of his negligence claim, finding as a matter of law that Helena was negligent in applying the chemicals, and setting the case for trial on the issue of damages caused by Helena's negligence. (Docket Entry No. 26.) The Opinion and Order of June 22, 2000 also entered summary judgment against Nelson's claim under the New Jersey Consumer Fraud Act, which is no longer before the Court. The facts and background of this case are more thoroughly set out therein.

After this Court entered its summary judgment Opinion, the parties stipulated as to the amount of Helena's contract damages, and Helena's claims were voluntarily dismissed on the first day of trial, September 25, 2000. (Docket Entry No. 43.) This left the amount of damages Helena owed Nelson upon Nelson's negligence counterclaim as the sole remaining issue in this case. The damages issue was tried before a jury, which rendered a verdict of $310,826 for Nelson on his negligence counterclaim.

Helena now moves the Court to Order a new trial, or to at least remit the jury's verdict, because the verdict was "grossly excessive" and was not based on the evidence presented at trial. For reasons discussed herein, Helena's motion for new trial or remittitur will be denied and Nelson's motion to add prejudgment interest will be granted.

I. Helena's Motion for New Trial or Remittitur

A. Legal Standards

1. New Trial

Although this Court sits in diversity, federal law governs the issue of whether to order a remittitur or new trial on damages. See Brayman v. 99 West, Inc., 116 F. Supp. 2d 225, 230 (D. Mass. 2000). Under Third Circuit precedent, the ordering of a new trial under Rule 59 is a disfavored remedy, as "[such an action effects a denigration of the jury system [because] to the extent that new trials are granted the judge takes over . . . the prime function of the jury as the trier of facts." Lind v. Schenley Indus., Inc., 278 F.2d 79, 90 (3d Cir. 1960) (en banc).Motions for new trial are seldom granted, especially when the asserted ground is insufficiency of evidence and the subject matter is not particularly complex and deals with material which is familiar and simple. See id. at 90-91. The party challenging the verdict -- in this case Helena -- bears a heavy burden of showing that the verdict is against the weight of the evidence and that "a miscarriage of justice would result if the verdict were to stand." Klein v. Hollings, 992 F.2d 1285, 1290 (3d Cir. 1993).

2. Remittitur

Helena argues in the alternative that the Court should grant a remittitur in this case due to the excessiveness of the damages awarded. Remittitur is appropriate if the Court "finds that a decision of the jury is clearly unsupported and/or excessive." Spence v. Board of Educ. of Christina Sch. Dist., 806 F.2d 1198, 1201 (3d Cir. 1986); 11 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2815 (1995); McDermott v. Party City Corp., 11 F. Supp. 2d 612, 620 (E.D. Pa. 1998). If remittitur is granted, the party against whom it is entered can accept it or can proceed to a new trial on the issue of damages. McDermott, 11 F. Supp. 2d at 620; 11 Wright Miller & Kane § 2815 at 160.

B. Analysis

The Court first turns to Helena's arguments in favor of a new trial, the main issue for decision being whether, under Rule 59, Fed. R. Civ. P., Helena has carried its burden of showing that the jury damages verdict in this case was so against the weight of the evidence that a miscarriage of justice would result if it were allowed to stand. For reasons now discussed, the Court determines that the jury's verdict comported with the evidence presented at trial, and finds that no new trial is warranted.

In assessing the proper damages verdict for Nelson's lost crops, the jury had to evaluate the evidence pertaining to (1) Nelson's probable yield of corn in 1996, (2) the price that Nelson would have received for corn that he would have sold but for the negligence of Helena, (3) Nelson's probable yield of soybeans in 1997, and (4) the price Nelson would have received for those soybeans that he would have sold but for the negligence of Helena. Nelson made a total damages claim of $350,000. As stated above, the jury eventually awarded Nelson $310,826. Helena now claims that the jury's calculation of damages was based on "huge assumptions" and thus was against the weight of the evidence.

The first issue for consideration is the sufficiency of the evidence adduced with respect to the 1996 corn yield. Nelson Farms consists of about 10 fields, of which only two (fields H and I on Ex. D-1) were treated, as previously, by Moyer, a local applicator, using chemical fertilizers and a weed control product called "BiCep" on these 130 acres. This is distinguished from Helena's application of "Prowl" to the 441 acres for which greatly reduced yields were claimed. (Helena also applied "BiCep" to 74 acres of Nelson's fields without incident in 1996.) On this issue, the jury had to decide whether to credit Mr. Nelson's estimate that he would have received a yield of 236 bushels of corn per acre ("bu/ac") on 441 acres of corn fields that were stunted by misapplication of Helena's Prowl herbicide. There were two components of this inquiry. First, the jury had to consider the reliability of Mr. Nelson's 236 bu/ac figure. Second, the jury had to consider whether this figure, which was based upon a sampling of three acres out of several hundred, could serve as a reliable indicator of what Nelson's overall corn yield would have been on the 441 acres treated with prowl but for Helena's negligent application.

The jury first heard from Jesse Nelson, Sr., who estimated that, but for the misapplication of Helena's Prowl herbicide, his fields would have yielded 236 bu/ac. (Nelson Br. at 6.) To reach this figure, Nelson testified that he selected three non-Prowl-treated acres from his property from Fields H and I and that this acreage yielded 236 bu/ac. Nelson also estimated that he would have received $4.47/bu based on two sales he made to Schalick Mills at that price. (Helena Br. at 3.) Nelson, Sr. explained that the Moyer-treated fields in 1996 were producing extraordinary results, which he and his son noticed and carefully measured in three samples. By passing over the fields to fill the 200 bushel combine to capacity three times, and then measuring the precise amount of land needed to generate the full load, they calculated a gross yield of wet corn of 260 bu/ac, which is reduced by formula to render an equivalent dry corn yield of 236 bu/ac. His son, Jesse Nelson, Jr., confirmed these measurements in his testimony. Jesse Nelson, Jr., operated the combine machine and also explained to the jury how these measurements were made as he harvested the 1996 corn crop.

The Nelsons also testified at length about what they saw on the various fields, from the lush abundance of the Moyer-treated corn fields to the sparse and denuded acreage treated by Helena. The jury saw numerous photos from 1996 and 1997 of the various fields. The affected fields were described as having 2' high corn stalks, or ordinary stalks with no ears of corn, contrasted with what should have been normal 12' stalks with healthy ears to be harvested and sold for shell corn. (See, e.g., Exs. D-2 to D-20.) Fields that may have appeared normal from the edge only had a few good rows (where the spreader had apparently missed along the very ends and sides of fields), while the greater interior area was devastated. On other Prowl-treated fields, normal-looking corn stalks actually had no grain, while in others only one-third of the expected stalks appeared at all, according to the Nelsons.

Nelson's expert witness in weed management, A. Richard Bonanno, Ph.D., testified that he walked in several of the fields in March, 1999 and still detected the lingering damage of the prowl, and he examined the results of soil sample analysis conducted by the Taylor laboratory in 1998, which confirmed the over-application of Prowl in numerous sampled areas. A second visit to the fields in June, 1999, disclosed substantial areas of stunted growth, according to Dr. Bonanno, showing the long-term impact. Although no claims are made for 1998 and 1999, the evidence of significant and continuing impacts demonstrated the severity of the 1996 misapplication.

The jury heard testimony from Helena personnel -- Donald Miller and Robert Moore -- which raised factual disputes about the nature and extent of the damage. Miller was Helena's applicator at the Nelson farm in May, 1996, and he described the manner in which he had applied the Prowl, and how he returned in September, 1996 in response to Nelson's complaints. Miller walked some of the fields and said that from the car he could see affected areas but could not estimate a percentage, while on the ground he felt the greatest damage was at the ends of his application runs when the chemical had coagulated in the spreader. Moore was a Helena branch manager who took over for Andy Boerman. It was Boerman who had come to Miller's aid in May when Miller detected coagulation problems during the spring application, and it was Moore who responded to Nelson's complaints in the fall when the damage became manifest. He testified that he measured the bald spots that Jesse Nelson, Sr. had pointed out and kept notes (Ex. P-2) of his measurements, totaling only 12 acres of bald spots and reduced stands, which Nelson strongly disputes. Moore also said that Nelson told him in 1996 that his yield was down about 40 bu/ac on the treated land, while Nelson denies this and asserts that the total yield on the Prowl-treated fields was about 40 bu/ac. Moore conceded that he had not measured reduced yield areas if unaccompanied by bald spots, and Moore was confronted with his own deposition testimony in which he had stated, for example, that one-third of a 45-acre field (the "Sleeter Field") was stunted, which was grossly inconsistent with his measurement of only 11 affected acres spread over the entire 441 acres of Prowl fields.

Nelson also called Eric Kern, a successful farmer living in neighboring Cumberland County about two miles away from Nelson, who testified that in 1996 some of his corn fields also yielded as much as 240 bu/ac, but that the average was between 200-210 bu/ac. Kern's 1996 average figure thus was somewhat less than Mr. Nelson's estimated 236. *fn1

Helena argues, therefore, that Nelson's 236 bu/ac figure is an exaggeration compared with Kern's production. Nelson adduced evidence, however, that Kern's elevated yields for 1994 and 1995 were due to Kern's use of at least partial irrigation on those dry years, while Nelson had no irrigation capacity. Meanwhile, 1996 was a very wet year in which Kern used no irrigation. In fact, 1996 was an ideal year for growing corn in South Jersey, yielding bumper crops by all accounts. The jury could well find that in the atypical year of 1996, Nelson's production could exceed Kern's.

Similarly, Helena argues, Nelson historically has done only about 14% better than the Salem County corn bu/ac average, but his 1996 estimates would have put him at about 45% over the average yield. *fn2 Based on Mr. Kern's 1996 yield of 205 bu/ac, and the overall Salem County average of 129 bu/ac, Helena argues, it was unreasonable for the jury to adopt Mr. Nelson's 236 bu/ac estimate. The jury could consider this evidence and discount it as anecdotal, rather than a trend, in light of testimony by Dr. Bonanno and others that county-wide figures and comparisons are less meaningful due to variabilities in crops planted, rainfall, and growing conditions between the Nelson farm areas and the rest of the county.

It is important to note that, while Nelson's 236 bu/ac figure may have generously estimated the probable 1996 corn yield, it was the only figure reflecting an actual, timely estimate based on a sampling of Nelson's fields. The reliability of this figure is enhanced by the Nelson's uncontradicted testimony that he made this estimate for no reason other than curiosity; he wanted to gauge what appeared to be an unusually productive corn crop. The 236 bu/ac figure thus was not an estimate made in anticipation of litigation. Accordingly, there was ample evidence before the jury giving it cause to credit Nelson's 236 bu/ac figure.

There was also evidence from which the jury could have reasonably determined that the 236 bu/ac figure, which was drawn from three acres of BiCep-treated land, could be relied upon to indicate Nelson's probable overall 1996 corn yield. There was no significant testimony of the historical productivity of fields H and I (the BiCep-treated fields from which the three samples were obtained) compared with the other fields at issue, and the jury could reasonably find that the other fields treated with Prowl should have had a yield similar to the measured fields. Helena contends that the only reasonable conclusion for the jury was that, based on the averaged comparisons of Mr. Nelson's yields with the Salem County average and Mr. Kern, Nelson's average for 1996 would have been about 150-160 bu/ac, not 236.

Nelson replies that there was ample evidence from which a jury could conclude that Nelson's 236 bu/ac measurement was an accurate indicator of the overall corn yield. Nelson maintains that the testimony of his expert, Dr. A. Richard Bonanno, shows the reasonableness of the jury's adoption of the 236 bu/ac figure. Dr. Bonanno, a weed science specialist from Massachusetts with an impressive personal, academic, and scientific background, testified that he independently examined soil samples from affected areas of Nelson's fields on several occasions, and reviewed the soil analyses of Nelson's soil expert Dr. Taylor. Dr. Bonanno also visited the Nelson fields on several occasions, and examined maps and the 1996 rain records of neighboring townships. After examining all this evidence, Dr. Bonanno concluded that there were three viable ways of determining Nelson's losses: (1) to take the grower's average over 3-5 years; (2) to compare yields the grower has in the subject year to what other growers in the county had that year; or (3) extrapolate an average from unaffected samples taken from within the grower's farm. Dr. Bonanno ruled out the 5-year average method as unreliable, especially in the instance of non-irrigated farms such as Mr. Nelson's, the yields of which vary greatly from year to year according to changes in annual rainfall. Dr. Bonanno also ruled the method of comparing the grower's yield to that of the county's average, stating that he thought county averages were flawed because this method includes in the average all farmers, whether they do a good job or not. Dr. Bonanno determined that Nelson's three acre sample could produce a reasonably accurate measure of the Nelson farm's damages, the only proviso being that the unaffected areas had been treated with a different herbicide, BiCep, than the affected acreage. Nevertheless, Dr. Bonanno concluded, the BiCep treated fields were generally similar to the Prowl-treated fields, and thus the three samples taken by Nelson were a reasonable indicator of what his overall yield losses were. The jury could reasonably credit this testimony.

Dr. Bonanno's testimony for Nelson provided the jury with a reasonable ground for concluding that Nelson's estimates could be relied upon as an indicator of his probable yield on the 441 affected acres. The jury apparently rejected Helena's evidence aimed at diminishing this estimate. The jury's decision to credit Nelson's estimates might be also be attributable to the fact that Helena's expert, Dr. Ritter, was effectively portrayed on cross-examination as confused or ill-informed about the damages at issue. *fn3

Helena presents very little argument addressing evidence presented concerning Nelson's probable soybean yield. Nelson's measure of his 1997 soybean crop was based upon the actual measurement of his entire soybean yield. (Nelson Br. at 17.) He testified that he harvested 62 bu/ac of soybeans. The soybean measurement presented to the jury was not a matter of extrapolating from random samples--it was an actual measurement. There was also supporting testimony from Dr. Bonnano concerning Nelson's soybean measurement. Helena attempts to cast doubt upon the 62 bu/ac figure by pointing out that Nelson normally received only 45-60 bu/ac of soybeans, and that he probably would have received a low-end figure in a dry year such as 1997. Despite Helena's arguments to the contrary, the jury apparently credited Nelson's testimony concerning his soybean yield. There was also uncontradicted testimony concerning the 1997 market price of soybeans.

The jury heard substantial testimony regarding the price of corn during the 1996-97 season. Helena argues that the Court should remit the damages awarded because Nelson's assertion that he would have sold the additional corn at $4.47/bu. was speculative and unfounded. Helena attempted to discredit Nelson's estimate of $4.47/bu. for corn, arguing that Nelson generally sold 95% of his corn yield to Perdue, not Schalick, and in 1996 the corn price Nelson obtained from Perdue was between $3.20/bu and $3.50/bu. (Helena Br. at 5.) This argument assumes that Nelson would not have obtained the $4.47 price from Perdue at the time he sold it. It seems likely that Schalick was simply paying the market price at the time of the sale, and the jury could find that Nelson would likely have received approximately $4.47 no matter where he sold his corn yield, since the prices were high (due to Midwest droughts) and Nelson was able to withhold his 1996 corn crop from the marketplace as the price rose into 1997. In any event, the jury was presented with conflicting numbers, and Helena tried to persuade the jury to adopt the lower $3.20-$3.50 corn figure at trial.

Nelson's accounting expert, Laurence Thoma, CPA, rendered an opinion on the reasonableness of the pricing assumption at $4.47 per bushel. Thoma testified he analyzed the 1996 and 1997 sales slips and prices. Typically Nelson holds corn from November through June as prices rise, and the November, 1996 price rose from about $3 per bushel to $4.47 in June, 1997. Nelson in fact sold his last 1996 corn to Schalick Mills for $4.47 on June 16, 1997 (Ex. D-38). Thoma was confronted with the fact that Nelson had sold corn earlier in the season to Perdue at $3.25 and $3.40/bu. in April, 1997, and that most of Nelson's 1996 corn crop was sold to Perdue for the relatively lower price. Thoma was firm that $4.47 was the pertinent market price, and that it was predictable that the price goes up from April to June, and that there was no indication that Nelson was under financial pressure that would have required him to dispose of his remaining crop at the April price rather than waiting until June. Based on the damages awarded, the jury apparently elected to adopt instead a figure fairly close to the $4.47 price. As explained above, there was evidence from which the jury could conclude that Nelson's estimates were reliable, despite Helena's effort to show that the $4.47/bu. figure was inflated and unrepresentative.

The accounting expert's opinion on net damages for the 1996 corn crop due to diminished production on the Prowl fields was $321,000, and for the 1997 soybean crop was $43,500, for a total loss of $364,500, which he reduced to $350,000 after adjustments for storage costs that would have been incurred. The jury's verdict was almost $40,000 below this figure. *fn4

As to corn losses, Thoma testified that Nelson's proven production was 57,881 bu., based on the farm's records of sales. The Moyer-sprayed fields H & I (the "BiCep" fields) produced 30,680 bu of this amount (130 acres x 236 bu/ac.). The fields treated by Helena with "BiCep" consisted of 74 acres, which were assumed to have produced the same yield of 236 bu/ac. as the Moyer fields, for a total of 17,464 bushels. Of the 441 acres treated by Helena with Prowl, 150 acres were required to fill Nelson's silo with silage, leaving 291 acres to harvest and sell. Those 291 acres are assumed to have produced the remaining 9,737 bu. in the 1996 corn crop, an average of 33.46 bu/acre, which squares up with Nelson's recollection that the Prowl fields produced only about 40 bu/acre. The loss on the Prowl acreage is therefore 203 bu/ac (236 expected less 33.46 achieved). When the loss of 203 bu/ac is multiplied by the 291 acres at $4.47/bu., the lost income was $263,457. To this figure Thoma added the losses from the extra acreage that had to be harvested for silage, which he assumed to be 75 acres (computed by 150 acres harvested for silage, less 75 acres normally needed for silage); the loss of 75 acres assumed to yield 236 bu/ac at $4.47 renders a figure of $79,119. The total of $263,457 and $79,119 is $342,576. From this figure the variable costs (which Nelson would have incurred if production was higher) must be subtracted, which Thoma computed at about $22,000, yielding a net loss of about $321,000 for corn.

Thoma computed the soybean losses in 1997 essentially as follows. The Moyer-treated fields yielded 62 bu/ac of soybeans in 1997, while the "Prowl" fields produced 40 bu/ac by measurement. The difference of 22 bu/ac that should have been produced is multiplied by the 291 "Prowl" acres devoted to 1997 soybean production to yield 6,402 bu. in losses. The average price for soybeans in New Jersey in 1997 was $6.80/bu., yielding $43,500 in soybean losses after adjustments for transportation and storage costs that would have been incurred.

Cross-examination of Thoma explored hypothetical results if the 236 bu/ac. assumption was replaced by 155 bu/ac., and if the $4.47 price per bushel were reduced to $4. Other assumptions were also tested for the jury, including whether the silage loss required only 45 more acres rather than 75 acres (a $7,000 damage reduction if the other assumptions are held constant).

The jury had the benefit of strenuous cross-examination of accountant Thoma, as well as the testimony adduced by Helena from its accounting expert, Donald Grazia, CPA. Grazia attacked the assumptions about crop loss for corn and soybeans, and price for the corn.

In the end, the jury took a view of the evidence, and the inferences from that evidence, more favorable to Nelson than to Helena, but without accepting Nelson's numbers lock, stalk, and bushel. The verdict is within the realm of the evidence they heard. They apparently credited the Nelsons and discredited Miller and Moore regarding the observations of the fields in 1996. The jury examined the photos depicting damage patterns in most of the fields. They apparently credited Dr. Bonanno rather than Dr. Ritter regarding the degree of damage and the hesitation to extrapolate Nelson's expected yield from the county figures and neighbor Kern's figures. They apparently found a reasonable price which Nelson would have received to be closer to the $4.47 figure than the $3.25 range. This Court cannot say that any of these choices was far-fetched or unsupported by evidence that a reasonable jury could credit. In other words, the evidence was sufficient to support the verdict.

The Court concludes that the jury's damages verdict was based on the evidence presented, and the award of $310,826.00 was not "clearly unsupported and/or excessive". Accordingly, Helena's request for remittitur will be denied.

II. Nelson's Motion to Amend Judgment to Include Prejudgment Interest

Prejudgment interest on New Jersey tort damages is mandated by New Jersey Court Rule 4:42-11(b), which states that a court "shall, in tort actions . . . include in the judgment simple interest . . . from the date of the institution of the action or from a date 6 months after the date the cause of action arises, whichever is later". A prejudgment interest award compensates the plaintiff for the defendant's use of his money after the cause of action accrued. Hurley v. Atlantic City Police Dept., 933 F. Supp. 396, 431 (D.N.J. 1996). It is an equitable remedy intended to make a plaintiff "whole." Davis v. Rutgers Casualty Ins. Co., 964 F. Supp. 560, 575 (D.N.J. 1997).

Helena argues that prejudgment interest may not be awarded when the plaintiff has not specifically demanded interest in the complaint or pretrial submissions. This argument fails because the New Jersey court rule does not contain this exception. Helena has cited no New Jersey cases interpreting the rule to exclude prejudgment interest where a plaintiff has not demanded them in his complaint, and the Court's research reveals no such case. *fn5 Contrary to Helena's position, New Jersey's courts have stated clearly that prejudgment interest under R. 4:42-11(b) is to be awarded unless the case is an exceptional one. See Kotzian v. Barr, 81 N.J. 360, 362. (1979). Helena has failed to point to any circumstances showing that this is an exceptional case warranting suspension of mandatory statutory interest. Based on clear New Jersey authority showing that the award of prejudgment interest is mandatory and not subject to dismissal for failure to make a pre-trial demand for such interest, Nelson is entitled to prejudgment interest on his entire award of damages. *fn6

In diversity cases, the Court should apply the methodology and calculation of prejudgment interest as set out in the New Jersey Court Rules. McKenna v. Pacific Rail Service, 817 F. Supp. 498, 518 n. 3 (D.N.J. 1993). Further, Helena does not suggest that the counterclaim would have been defended differently if Nelson's interest claim had been stated in the pleadings, so no prejudice has been visited upon Helena by Nelson's silence. Therefore, the Court will amend the judgment in this case to award prejudgment interest, calculated pursuant to New Jersey Court Rule 4:42-11(b).

Rule 4:42-11(b) provides for the imposition of prejudgment interest from the date of the institution of the action or from six months after the cause of action arose, whichever is later. In this case, the cause of action accrued during the Spring and early Summer of 1996. Helena filed its complaint seeking contract damages on November 19, 1997, and Nelson counterclaimed on March 2, 1998. Accordingly, prejudgment interest shall run from March 2, 1998 the date of the filing of the ultimately successful counterclaim, through October 3, 2000, the date of entry of the Final Judgment in this case.

The Court's annual rate of interest under N.J. Court R. 4:42-11(b) for 1998 and 1999 is 5.5%. For year 2000, the rate is 5.0%. Accordingly, the interest is calculated as:

Year Period x Interest Rate = Amount

1998305/3655.5%x $310,826$14,285.22

1999365/3655.5%x $310,826$17,095.43

2000277/3665.0%x $310,826$11,762.13

Total: $43,142.78

Based on this calculation, plaintiff's award in this case shall be increased by $43,142.78, increasing the amount of final judgment from $310,826.00 to $353,968.78. The Court's Order of Final Judgment entered October 3, 2000 will be amended to include this calculation. Interest accruing after October 3, 2000 will be deemed post-judgment interest to be calculated at the federal rate determined under 28 U.S.C. § 1961.


For the reasons discussed herein, Helena Chemical's motion for new trial or remittitur will be denied, and Nelson's motion to amend the final judgment to add prejudgment interest will be granted. The Court will amend its Order of Final Judgment in this case to reflect the addition of prejudgment interest in the amount of $43,142.78, for a total recovery by Nelson of $353,968.78. The accompanying Order is entered.


THIS MATTER having come before the Court on (1) motion of Helena Chemical Co. for new trial or remittitur pursuant to Rule 59, Fed. R. Civ. P., and (2) motion of Jesse Nelson to amend the final judgment to add prejudgment interest, also pursuant to Rule 59; and the Court having considered the parties' submissions and based on the Court's own recollection of the trial proceedings in this case; and for the reasons discussed in the Opinion of today's date;

IT IS this 29th day of December, 2000, ORDERED as follows:

1. Helena Chemical's motion for new trial or remittitur [Docket entry No. 46] is DENIED;

2. Jesse Nelson's motion to alter/amend the final judgment [Docket Entry No. 45] is GRANTED;

3. The Court's Order of Final Judgment in this case dated October 3, 2000 is hereby AMENDED as follows: the decidual paragraph formerly reading:

ORDERED and ADJUDGED that JUDGMENT be entered upon the counterclaim in favor of Jesse Nelson, Sr., d/b/a Nelson Farms against Helena Chemical Co. in the amount of Three Hundred Ten Thousand Eight-Hundred Twenty-Six Dollars ($310,826.00).

is hereby AMENDED to read:

ORDERED and ADJUDGED that JUDGMENT be entered upon the counterclaim in favor of Jesse Nelson, Sr., d/b/a Nelson Farms against Helena Chemical Co. in the amount of Three Hundred Ten Thousand Eight Hundred Twenty-Six Dollars ($310,826.00), plus prejudgment interest in the amount of Forty-Three Thousand One Hundred Forty-Two Dollars and Seventy-Eight Cents ($43,142.78) as of October 3, 2000, for a total of Three Hundred Fifty- Three Thousand Nine Hundred Sixty-Eight Dollars and Seventy- Eight Cents ($353,968.78), plus post-judgment interest after October 3, 2000.

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