Untitled

amount of the plaintiff’s decrease in revenues as well as the
of any offsetting decrease in the plaintiff’s expenses. A plaintiff seeking
s for a dairy farm’s losses due to stray voltage is not entitled to damages
upon proof of “milk loss”
rease in the plaintiff’s expenses.
the party’s
cows’ production of milk
’s rulings on the
parties’ various
parties’ appellate briefs raise a number of issues, both procedural and substantive. For
Popplers’
In late 2007 and early 2008, the Popplers noticed a decrease in their dairy herd’s
preme court has described stray voltage as “a phenomenon in which an
—
through an object not intended as a conductor.”
—
comports with the parties’ general
cow’
!
’s
known as Ohm’s
Popplers’ dairy cows
’
cow’s body.
cows’ drinking behavior.
“bobbing in and out of the water” and “licking at the water” rather than drinking it.
8, Wright Hennepin performed testing on the Popplers’ farm to assess the
result of defective electrical wiring in buildings on the Popplers’ dairy
Wright Hennepin’s power
the dairy operation. But the rewiring did not resolve the herd’s health problems, and the
electrical system “so that the returning earth current from the primary neutral
sn’t pass through [the] dairy facility on its way back to the prospective substation.”
Ritchie’s recommendation required both the Popplers and Wright Hennepin to take steps
Wright Hennepin’s cooper
to Ritchie’s recommendations, result in reduced levels of stray voltage
Ritchie’s
’s consultant did not find stray voltage bu
serving the Popplers’ farm was too small to serve a dairy farm of the Popplers’ size.
endation of the Popplers’
farm’s neutral
’s power line
The Popplers’ complaint alleged claims
"
moved to dismiss the Popplers’ claims of
exclude the Popplers’ expert
and that the testing performed by the Popplers’ experts was
Popplers’ expert
#
$
%
&
overruled Wright Hennepin’s objection to the same evidence
“Negligence and/or Trespass”
for “Nuisance ” The district
’
that the Popplers “failed to introduce sufficient evidence of the herd’s
causing harm” and
’s
’
#
$
%
&
The district court denied Wright Hennepin’s first post
jury’s
had been identified by the Popplers’ damages expert
urt denied Wright Hennepin’
jury’s verdict by making amended
the Popplers’
ennepin’s motion for a new
Popplers’ expert
Did the district court err by denying Wright Hennepin’s
’s pos
jury’s
“itemiz
” the jury’s
’s
Popplers’
“milk loss”
Did the district court err by denying the Popplers’
the Popplers’ trespass claim to the
the Popplers’ expert
Popplers’ expert
’
#
$
%
&
#
$
%
&
district court’s evidentiary rulings, a
'
(
)
%
to “facilitate development of critical aspects of the record,” to focus “on the specifics of
an objection,” and “t
effect it might have had upon the outcome of the litigation.”
if the error “had a reasonable likelihood of affecting the jury’s
verdict.”
#
*
&
%
discretion standard of review to a district court’s den
'
(
Wright Hennepin argues that the Popplers’ experts
about stray voltage and its effects on the Popplers’
district court’s ruling on th
)
%
(
(
+
Power Ass’n
ise “in the field of cow sensitivity to stray voltage.” Wright Hennepin argued that
and, thus, “should not be allowed to opine on the cause of herd health problems.”
district court denied Wright Hennepin’s motion as to Dr. Marker and reserved ruling as to
because he lacks expertise in “electrical matters.” The Popplers responded that, althou
current at certain levels, Visser’s expertise in observing the herd and ruling out other
’s
The district court overruled Wright Hennepin’s objection.
court’s admission of the testimony of Dr. Marker, Neubauer
expert witnesses with expertise in various fields if they are “helpful in linking the
electrical measurements in question with causation.”
“scientific, technical, or other
”
“
ining, or education.”
’
“
’
”
#
+
,
!
Minnesota courts typically have been “liberal” in qualifying
%
the district court erred by allowing the Popplers’
-
of the herd’s health problems, as opposed to the mere
&
. In affirming the district court’s decision, the supreme court noted
justified by the fact that “the care of animals is generally in the hands of practical men
”
“sufficiently qualified in the pathology of the particular chicken disease in question.”
,
the purported expert’s experience with horses, the district court did not abuse its
,
,
the district court excluded that expert’s testimony because the expert had no experience
,
’s
’s
“the nature of
common person’s understanding.”
, Wright Hennepin’s reliance on
,
,
, the supreme court deferred to the district court’s discretion to
Popplers’ expert evidence.
With these principles in mind, we turn to Wright Hennepin’s specific challenges to
ers’ experts.
.
/
0
1
/
2
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4
5
6
7
8
4
1
9
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1
because he “conceded he is not an expert in electricity or stray electricity.”
’
Marker’s training and experience, the district court did not abuse its discretion by
denying Wright Hennepin’s motion for a new trial
:
/
;
4
<
1
7
6
=
7
>
7
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4
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7
1
because he “has no training in veterinary science.”
testing of “power quality issues, which includes identification of electrical issues
necessary to remove or substantially reduce electricity affecting the dairy operation.”
the Popplers’ herd. He
denying Wright Hennepin’s
A
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B
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1
1
5
C
D
E
E
7
1
testimony because he “disclaimed any expertise in what levels and what form of
electricity are going to cause an effect on animals.”
and dairy production, a bachelor’s degree in animal science, and a master’s
efore Wright Hennepin’s objection, Visser testifie
the herd health problems are “unexplainable” by dairy
Given Visser’s training and
Wright Hennepin’s motion for a new trial
F
1
5
7
G
8
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=
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In its pre-trial motion in limine, Wright Hennepin sought an order precluding the
Popplers from introducing expert evidence “that use of a 200 ohm resistor is the
appropriate means to calculate the impact of electrical events on dairy cows.”
The
district court denied the motion. After trial, Wright Hennepin moved for a new trial,
again challenging the Popplers’ expert evidence that the proper measure of the resistance
of a dairy cow’s body is 200 ohms. The district court denied that motion as well.
To be admissible, the Popplers’ expert evidence must satisfy the requirements of
rule 702 of the Minnesota Rules of Evidence. Doe v. Archdiocese of St. Paul, 817
N.W.2d 150, 164 (Minn. 2012). Rule 702 incorporates the Frye-Mack standard, id.,
which applies if the expert evidence “involves novel scientific theory,” Minn. R. Evid.
702.
The Frye-Mack standard has two prongs. First, the underlying scientific theory
must be “generally accepted in the relevant scientific community.” Doe, 817 N.W.2d at
165 (quotation omitted). Second, “the particular scientific evidence . . . must be shown to
have foundational reliability.” Id. (quotation omitted). To satisfy the second prong, the
proponent of a scientific test must “establish that the test itself is reliable and that its
administration in the particular instance conformed to the procedure necessary to ensure
reliability.” Id. (quotation omitted). The first prong is a question of law, which this court
reviews de novo. Goeb v. Tharaldson, 615 N.W.2d 800, 815 (Minn. 2000). The second
prong is a matter of discretion, which this court reviews for an abuse of discretion. Id.
In its motion in limine, Wright Hennepin relied on a publication of the Wisconsin
Public Service Commission, which states that 500 ohms is a conservative estimate of the
electrical resistance of a dairy cow’s body. See Wis. Pub. Serv. Comm’n, Stray Voltage
& Water for Dairy Cattle 1 (June 2003), available at http://psc.wi.gov/utilityInfo/
electric/documents/strayVoltage/cattle.pdf.
Wright Hennepin also relied on
commonly referred to as the “Red Book,”
animal sensitivity
’
)
+
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I
)
)
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he Red Book cites a collection of research indicating that cows have an
electrical resistance as low as 244 ohms. Id. at 3-6. Wright Hennepin contends that, in
light of these authorities, Neubauer’s use of 200 ohms as the electrical resistance of a
dairy cow’s body is not generally accepted in the relevant scientific community.
Wright Hennepin’s argument fails because Neubauer’s use of 200 ohms as the
electrical resistance of a dairy cow’s body, for purposes of this case, is not a general
scientific “theory.” The district court rejected Wright Hennepin’s argument in its posttrial ruling by reasoning that the Popplers relied on the scientific theory of Ohm’s Law,
which it described as “a fundamental principle of electrical theory,” to prove that stray
voltage injured their dairy herd. The district court’s analysis reflects an appropriate
application of the first prong of the Frye-Mack test. See
that expert testimony in stray voltage case based on “established well
electricity, such as Ohm’s law,” satisfied
#
. Neubauer’s use of 200 ohms is not a
“scientific theory”; it actually is the result of scientific tests applying scientific techniques
that are based on scientific theories. Scientific tests and their results may be challenged
under the second prong of the Frye-Mack test, but Wright Hennepin did not make such a
challenge in its post-trial motion and, thus, has failed to preserve the issue for appeal.
'
(
Because the generally accepted status of the
Popplers’ expert evidence is apparent from the record before the district court, there was
no need for a Frye-Mack hearing. See State v. Roman Nose, 649 N.W.2d 815, 821
(Minn. 2002); Donnelly Bros. Constr. Co. v. State Auto Prop. & Cas. Ins. Co., 759
N.W.2d 651, 660 (Minn. App. 2009). Thus, the district court did not abuse its discretion
by denying Wright Hennepin’s motion for a new trial on the ground that it should have
excluded the Popplers’ expert evidence of a resistance value of 200 ohms.
s of electrical current, they “drool uncontrollably” and “snot up out of the
nose.” Neubauer also testified that
“lock
”
#
argument also has not been preserved for appeal.
*
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*
(
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Wright Hennepin’s motion for a new trial on the ground that the Popplers’ expert
that the Popplers’ dairy
not cause the Popplers’ dairy
A district court may grant a party’s motion for judgment as a matte
“there is no legally sufficient evidentiary basis for a reasonable jury to find for that party
on that issue.” Minn. R. Civ. P. 50.01. We apply a
district court’s decision to deny a motion for judgment as a m
)
*
!
At trial, the Popplers presented the testimony of numerous witnesses on the
causation issue, including Harlan Poppler, Roy Marschall, Barry Visser, Dr. Shayne
Marker, Donald Johnson, and Lawrence Neubauer. Harlan Poppler testified that he did
not make significant changes in his management and care of the herd before and after the
herd problems began.
He also testified that he considered a variety of potential
alternative causes but ruled out all of them. Because he ruled out alternative causes, he
focused on stray voltage as a potential cause. Similarly, Roy Marschall testified that the
controllable factors on the farm, such as management, housing, and nutrition, did not
cause the herd’s health problems.
Visser, the Popplers’ nutritionist, testified that he observed avoidance behavior,
specifically that the cows exhibited abnormal drinking behavior and unusual behavior in
the milking parlor. Visser also testified that the herd’s nutrition did not cause health
problems and that the herd’s rations did not cause the decrease in milk production.
Dr. Marker, the Popplers’ veterinarian, testified to similar observations of the
herd’s behavior. He also testified that he examined various potential alternative causes of
the herd’s health and milk-production problems. He testified that herd health improved
only after Wright Hennepin installed an isolation transformer, which was expected to
help alleviate stray-voltage problems.
Dr. Marker testified that the herd’s health
problems began again after January 2011, when Wright Hennepin re-connected the
grounding rods near the Popplers’ farm. Dr. Marker testified that stray voltage caused
the herd’s health problems.
Donald Johnson, an expert electrical engineer, testified that a number of Wright
Hennepin’s practices with regard to supplying electricity to the Popplers’ farm violated
industry standards and resulted in the presence of stray voltage on the farm. Specifically,
he testified that Wright Hennepin failed to properly maintain the voltage regulator at the
Popplers’ farm in violation of industry standards. He also testified that the voltage
regulator was defective and contributed to an increase in the likelihood of stray voltage.
Johnson further testified that the transformers at the Poppler farm were undersized, which
may exacerbate stray voltage.
Lawrence Neubauer, an expert electrician, testified that he tested the electrical
current at the Popplers’ farm and that his testing revealed current levels high enough to
have an effect on the Popplers’ herd. Neubauer also testified that the voltage level at the
Popplers’ farm was lower than industry standards and that the reason for the voltage drop
was that the line was “unreasonably old.” He also testified that the resistance of the
neutral line serving the Popplers’ farm was approximately six times higher than the
industry standard and that high resistance can result in stray voltage. Neubauer tested the
return current on the neutral wire and found that it was well below the industry standard,
which means that, rather than flowing back through the neutral line, electricity was
flowing “[i]nto the one place it can go, into the earth.” Neubauer also testified that he
measured the stray voltage at the Popplers’ farm and concluded that it was high enough
to have an effect on the Popplers’ cows.
In challenging the Popplers’ evidence of causation, Wright Hennepin cites Goeb,
in which the supreme court stated that “[o]ne of the central tenets of toxicology is that
‘the dose makes the poison.’” 615 N.W.2d at 815 (quoting Federal Judicial Ctr., Moore’s
Federal Practice, Reference Manual on Scientific Evidence 185 (1995)). Nonetheless,
Wright Hennepin’s appellate arguments are not specific as to the particular amount of
electrical current to which the Popplers’ dairy cows were exposed and the minimum level
that might cause them injury. Wright Hennepin simply iterates and reiterates that the
Popplers’ evidence of causation is insufficient, without attempting to quantify or
helpfully describe the Popplers’ evidence.
In response, the Popplers highlight evidence that, in 2010, Neubauer measured
electrical currents at the dairy farm and obtained readings showing that a dairy cow
would experience between 1.02 and 2.15 milliamperes of current. Neubauer testified that
these levels of electrical current are high enough to cause the herd’s abnormal drinking
behavior.
In reply, Wright Hennepin critiques the Popplers’ evidence on various
grounds, such as that the readings are too few and too infrequent and that the frequency
and duration of high electrical currents are unknown. But Wright Hennepin does not
effectively refute the basic fact that the Popplers’ evidence tends to prove that the dairy
herd was exposed to stray voltage in amounts that are harmful. Given the evidence in the
record, a jury reasonably could infer that the Popplers’ dairy cows experienced electrical
current at levels that were similar to Neubauer’s measurements and that the electrical
current caused health problems that resulted in financial injuries.
See Northern
Petrochemical Co. v. U.S. Fire Ins. Co., 277 N.W.2d 408, 410-11 (Minn. 1979)
(explaining that jury may make reasonable inferences from evidence presented). Wright
Hennepin has failed to convince us that the Popplers’ evidence is insufficient to establish
causation.
Wright Hennepin also argues that the Popplers’ evidence is insufficient to prove
that the dairy herd was exposed to stray voltage throughout the entire damages period of
2006 to 2011. Scientific testing throughout the six-year period is not necessary to
establish that the Popplers’ sustained damages during that time frame. See Sentinel
Mgmt. Co. v. Aetna Cas. & Sur. Co., 615 N.W.2d 819, 827-28 (Minn. 2000). The
Popplers presented evidence that the herd began experiencing health problems in 2006
and that, from 2006 until trial, the herd was not producing milk at the usual rate. Because
the evidence is sufficient to prove that the Popplers’ dairy herd was exposed to stray
voltage at the relevant time periods, a jury reasonably could infer that stray voltage was
the cause of decreased milk production throughout the six-year damages period. See id.
The jury is entitled to make reasonable inferences, and we review the jury’s inferences in
the light most favorable to the verdict. Northern Petrochemical, 277 N.W.2d at 410.
Based on all the evidence presented at trial, a reasonable jury could find that stray
voltage caused injury to the Popplers’ dairy cows and, thus, to the Popplers. Therefore,
the district court did not err by denying Wright Hennepin’s motion for judgment as a
matter of law on the sufficiency of the evidence of causation.
The Popplers argue that the district court erred by granting Wright Hennepin’s
motion to amend the jury’s
“
by providing an “itemization” of the jury’s damages
” the jury’s damages awards or to make amended findings on the
district court’s proposal. Wright Hennepin’s
each type of damages that the Popplers’ damages expert, Dr. Michael Behr, had identified
to more easily challenge the Popplers’ evidence of damages
. The district court rejected Wright Hennepin’s propo
of damages: one for “Negligence
and/or Trespass” and one for “Nuisance.” The jury awarded $648,200 in damages for
“Negligence and/or Trespass” and $105,000 in damages for “Nuisance,” for a total of
breakdown of the jury’s damages awards or, in the alternative,
the jury’s damages awards by breaking them down in
As authority for its “itemization” of the jury’s damages awards, the district court relied
“
”
he Popplers’ damages.
K
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&
“
”
K
findings because they “
”
damages. Thus, the issue of damages was not “omitted” from the jury’s verdict
K
the district court’s additional fact
Wright Hennepin also contends that the district court’s itemization of damages is
only in “actions tried upon the facts without a
jury or with an advisory jury.” Minn. R. Civ. P. 52.01. The rule does not apply to this
case and, thus, does not provide a legal basis for the district court’s itemization of the
jury’s damages awards.
court’s
findings that “itemized” the jury’s damages awards.
jury’s verdict, not the district court’s amended findings
when analyzing the parties’ other arguments related to damages
profits and that their request for damages based on “milk loss” is improper because it
Behr. Dr. Behr’s report identified
’
size of the Popplers’ dairy herd.
In his report, Dr. Behr
In closing argument, the Popplers’ coun
The Popplers’ evidence
related to “milk loss”
%
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“actual damages” means “‘[a]n
repay actual losses.’”
'
(
%
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!
Black’s Law Dictionary
!
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has the burden of proving the existence of lost profits “to a reasonable certainty” and the
amount of those damages “to a reasonable probability.”
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$
%
920. A plaintiff may not recover damages that are “speculative, remote, or conjectural.”
H
, 297 N.W.2d at 267. But “
its.”
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$
%
, 450 N.W.2d at 921. “Once the fact of
long as there is proof of a reasonable basis upon which to approximate the amount.”
*
Dr. Behr calculated “milk
loss” by comparing the Popplers’ actual milk sales to their “normal” milk sales. For the
“normal” scenario, Dr. Behr assumed, for the years 2009, 2010, and 2011, for example,
damages analysis was “not concerned”
recovery, we must have some “reasonable basis upon which to approximate” the amount
with “reasonable certainty ”
“reasonable probability ”
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$
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the Popplers’ evidence
#
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326 (1944), the supreme court held that the plaintiff’s evidence of lost profits from an egg
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“actual profit”
M
L
'
argue that “milk loss” is a
t squarely holding that “milk loss,” by itself, is an appropriate measure
P
H
*
refers to “financial losses
”
plaintiff’s method of proving
P
H
*
support the proposition that a plaintiff can recover damages for “milk loss” without
r any change in the amount of the plaintiff’s expenses.
an argument that is practically identical to the Popplers’ argument.
In
#
!
plaintiffs’
(
&
the award of damages on the ground that the evidence did not establish the plaintiffs’ lost
9. The court described the plaintiffs’ theory as “lost milk production
equals lost profits” but rejected it on the ground that the plaintiffs were required to
The Popplers’ “milk loss” theory is incompatible with the Minnesota caselaw on lost
Because the Popplers’ evidence is insufficient to support the jury’s damages
, the district court erred by denying Wright Hennepin’s post
. The district court’s error
“incumbent” on
%
Q
respond to the plaintiff’s requests, an appellate court
!
H
H
&
it is impossible to know whether the jury’s verdict
“
improperly submitted.”
+
a “lump sum” that includes both valid and invalid types of
damages, a new trial “is the only viable option.” Morrison Knudsen Corp. v. Fireman’s
#
plaintiff’s five types of damages
’s
Q
(
)
!
*
Minnesota’s rule 50.04 is modeled after federal rule 50(d). At the time of the
plaintiff’s
“Negligence
Trespass” and
“Nuisance.” It is impossible to know the extent to which the jury’s
based on the Popplers’ invalid “milk loss” theory.
'
O
H
"
(remanding for new trial because one of plaintiff’s two types of
%
*
'
O
H
resolve the parties’ respective arguments concerning Wright Hennepin’s motion for
&
he Popplers contend that the phrase “other personal
property” in this statute includes dairy cows. The supreme court, however, has concluded
that the phrase “other personal property” is “limited to ‘products of the soil’ or things
‘ roduced by and grown upon land.’”
*
H
%
-
(
*
because they eat products of the soil and “are produced and grown upon the land.” But
H
*
damages for wrongfully taking two oxen from the plaintiffs’ property.
H
%
*
H
*
the district court did not err by denying the Popplers’ motion for an award of treble
Wright Hennepin argues that the district court erred by submitting the Popplers’
to the court’s proposed instructions. Minn. R. Civ. P. 51.02(a), (b). “A party who
” Minn. R. Civ. P.
Hennepin’s counsel whether they wished to object to any of the district court’s proposed
that it “persistently and vigorously opposed submission of the trespass claim” by bringing
#
"
!
658 N.W.2d 242 (Minn. App. 2003), in which this court stated, “A litigant pres
review on appeal the district court’s alleged error in failing to give a requested jury
verdict.”
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)
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*
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we may review Wright Hennepin’s
#
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error rule provides, “A c
51.04(a)(1) or (2).” Minn. R. Civ. P. 51.04(b).
#
M
,
error is plain, and (3) whether the error affects a party’s substantial rights.
,
error is necessary “to ensure fairness and the integrity of the judicial proceedings.”
,
error tests use the same language, “the context of civil litigation often differs from
the context of criminal prosecution” and that “actual application of the plain
takes account for the differences.” Fed. R. Civ. P. 51
'
&
error test “
of justice in order to compel reversal.”
.
/
R
1
1
S
-
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!
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tends that the existence of stray voltage on the Popplers’ property does not
!
H
Wright Hennepin’s
'
Ins. Guar. Ass’
%
A defendant may be held liable for trespass if the “plaintiff has the ‘right of
possession’ to the land at issue and there is a ‘wrongful and unlawful entry upon such
possession by defendant.’”
N
#
T
'
'
'
#
!
)
&
!
266 N.W.2d 704, 705 (Minn. 1978)). The defendant’s entry “must be done by means of
some physical, tangible agency,” which could be either “a person or [a] tangible object.”
(quotation omitted). “The gist of the tort of trespass . . . is the intentional interference
with rights of exclusive possession.”
When people or tangible objects enter the plaintiff’s
land without permission, these entries disturb the landowner’s
the landowner’s exclusive possessory interest is not the same
Such invasions may interfere with the landowner’s use and
T
drifted from the defendant’s farm to the plaintiff’s neighboring
“‘[t]he law of nuisance deals with indirect or intangible interference with an owner’s use
the right to exclusive possession of land.’”
O
)
). The supreme court referred to the pesticide mist as “particulate
matter,” which it deemed to be “intangible.”
plaintiff’s use an
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+
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)
the existence of stray voltage in this case interfered with the Popplers’ use and enjoyment
the farm. Thus, the existence of stray voltage on the Popplers’ farm cannot
:
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1
We next consider whether the district court’s error was plain.
#
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2002), and an error is clear or obvious if it “contravenes case law, a rule,
or a standard of conduct,”
(
evaluate the district court’s jury instruction with reference
this court’s
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#
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rev’d
district court cited this court’s opinion in
T
in its order denying Wright Hennepin’s
, we must conclude that the district court’s
word is used in this context, and that stray voltage does not interfere with a landowner’s
right to exclusive possession. Thus, the district court’s error in s
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We next consider whether the district court’s plain error affected Wright
Hennepin’s substantial rights.
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“[A]n error affects substantial rights where there is a reasonable likelihood that the
’s verdict.”
(
establish that the district court’s plain error affected its
provided electricity to the Popplers’ dairy farm. The fifth interrogatory asked whether
the Popplers’ dairy farm. And
the seventh interrogatory, which was captioned “Trespass,” asked whether Wright
Hennepin unlawfully caused electricity to enter the Popplers’ dairy farm and interfere
W
uired to evaluate the district court’s jury instruction with reference
damages of $648,200 for “Negligence and/or Trespass” and damages of $105,000 for
“Nuisance.”
significant effect on the amount of damages awarded by the jury. The jury’s special
affected Wright Hennepin’s substantial rights. There is no apparent reason to believe that
a negligence case. The Popplers’ evidence was focused on Wright Hennepin’s negligent
Popplers’ dairy farm. The Popplers
the Popplers’ dairy
suffered financial losses. The nature of the Popplers’ injury and damages suggest a need
Popplers’ counsel focused almost entirely on the negligence
Thus, Wright Hennepin cannot establish that the district court’s plain error in
[
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]
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7
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1
D
X
5
affected the “‘fairness and the integrity of the judicial proceedings.’”
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,
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d that the defendant challenged the plaintiff’s
The supreme court reasoned that granting a new trial would “not accord
s or ensure integrity in judicial proceedings” and, in fact, “would
judicial proceedings.”
submitted, but it was no more than an incidental part of the trial. The jury’s verdict with
ieve that a new trial is necessary “to ensure fairness
”
a new trial “would adversely impact the integrity of
judicial proceedings.”
The district court did not err by denying Wright Hennepin’s post
new trial due to the admission of the Popplers’ expert evidence,
Hennepin’s
by denying the Popplers’
Popplers’ tres
The district court erred by amending the jury’s
denying Wright Hennepin’s