                                                             [PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT          FILED
                   ________________________ U.S. COURT OF APPEALS
                                                ELEVENTH CIRCUIT
                          No. 09-15971             AUG 23, 2011
                    ________________________        JOHN LEY
                                                      CLERK
                 D. C. Docket No. 07-20136-CV-PAS

WALTER INTERNATIONAL PRODUCTIONS, INC.,
a Florida Corporation,
WATERVISION, INC.,
a Florida Corporation,
WALTERVISION PRODUCTIONS, INC.,
a Florida Corporation,
WALTER MERCADO RADIO PRODUCTIONS, INC.,
a Florida Corporation,
BART ENTERPRISES INTERNATIONAL, LTD.,
a Bahamas Corporation,
WALTER MERCADO ENTERPRISES CORP.,
a Florida Corporation,

                                                   Plaintiffs-Counter-
                                               Defendants-Appellants,

                              versus

WALTER MERCADO SALINAS,
a natural person,
ASTROMUNDO, INC.,
a Puerto Rico Corporation,

                                                    Defendants-Counter-
                                                    Claimants-Appellees,
GUILLERMO BAKULA,
ABC INSURANCE COMPANY,
MARITZA CARVAJAL, et al.,

                                                                       Defendants-Appellees.

                               ________________________

                       Appeal from the United States District Court
                           for the Southern District of Florida
                             _________________________

                                      (August 23, 2011)

Before CARNES, KRAVITCH and SILER,* Circuit Judges.

CARNES, Circuit Judge:

       This appeal involves a contract dispute between Bart Enterprises

International, Ltd., and Walter Mercado Salinas. The contract describes Bart

Enterprises as being “in the business of producing and distributing entertainment

programming,” and it describes Mercado as “a well-known psychic and astrologer

who provides psychic and astrological counseling to the public.” It may be true, as

the song lyrics say, that “When the moon is in the Seventh House / And Jupiter

aligns with Mars / Then peace will guide the planets / And love will steer the

stars,”1 but there was no peace and love between these parties after their

       *
        Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
       1
       The 5th Dimension, “Aquarius/Let The Sunshine In,” on The Age of Aquarius (Soul
City Records 1969) (Remastered by Buddha Records 2000).

                                                 2
contractual dispute arose.

       Had Mercado’s psychic powers been greater he might have foreseen that the

parties’ relationship was star-crossed and his dealings with the entertainment

company would end in a way that was anything but entertaining. Or maybe the

problem was that Mercado could see only so far into the future, because things

went pretty well for about eleven years. Then trouble began.

                                              I.

       In the contract, which they entered into in June of 1995, Mercado assigned

the rights in the “Walter Mercado” trademark to Bart Enterprises, giving it the right

to produce, market, and distribute his trademarked materials in exchange for

regular payments to him. The contract also allowed Bart Enterprises to re-assign

its contractual rights, which it did to some extent.2 (We’ll refer to Bart Enterprises

and its assignees collectively as “the Bart Group” unless context requires

otherwise.)

       The parties amicably did business together under the contract for about

eleven years. Mercado’s story is that trouble began when the Bart Group fell

behind on its payments to him, and as a result he attempted to formally terminate



       2
       Bart Enterprises’ five assignees are Walter Mercado Radio Productions, Inc., Walter
Mercado Enterprises Corp., Walter International Productions, Inc., Watervision, Inc., and
Waltervision Productions, Inc.

                                              3
the contract in a letter dated November 22, 2006. The Bart Group’s story is that it

was not in arrears, and Mercado was the one who breached the agreement in

November 2006 by failing to attend scheduled appearances, failing to provide

required materials, and improperly attempting to terminate the contract.

      In January of 2007 the Bart Group filed a lawsuit against Mercado and his

company, Astromundo, Inc., which had sent the November 22, 2006 letter to the

Bart Group attempting to terminate the parties’ contract. (We will refer to Mercado

and Astromundo, Inc. collectively as “Mercado.”) The Bart Group’s complaint

concedes that “[f]rom June 1995 through the beginning of November 2006,

Mercado performed his obligations and complied with all the requirements

pursuant to the Agreement without interruption,” but it claims that in mid-

November 2006 he breached the contract.

      The complaint asserted in six counts that Mercado had breached his contract

with the Bart Group—one claim for Bart Enterprises and one claim each for its five

assignees (Counts I & IV–VIII). It also claimed that Mercado tortiously interfered

with the contracts that two of the Bart Group had with two television stations,

Televisa (Count II) and Univision (Count III), by directly entering into contracts

with those stations.

      Mercado filed an answer denying liability on all of the claims and asserting a


                                          4
number of counterclaims. These are the only counterclaims that are relevant to the

procedural history of this appeal: Mercado’s claims against the Bart Group for

breach of contract (Counts I and II) and his claims against Bart Enterprises for

breach of fiduciary duty (Count IV) and for a declaratory judgment (Count III). In

his declaratory judgment count Mercado asked the district court to find either that

the contract was void or that he had properly terminated it. He also asked for a

ruling that Bart Enterprises owed him fees and commissions and that he had the

right to inspect “all of the accounting books and supporting documentation” to

determine the amounts that he was owed.

      In June 2008, these star-crossed parties filed cross-motions for summary

judgment, which the district court granted in part and denied in part. The only

claims of the Bart Group that survived summary judgment were the breach of

contract and tortious interference claims. The only counterclaims of Mercado that

survived summary judgment or dismissal were those for breach of contract and

breach of fiduciary duty. The court did grant one part of the declaratory judgment

that Mercado had requested, declaring that he did have a right under the contract to

inspect the Bart Group’s accounting books.

      The claims and counterclaims that remained went to trial, which was divided

into two phases. In phase I, which lasted for eight days, the jury considered the


                                          5
Bart Group’s breach of contract claim and Mercado’s breach of contract and

breach of fiduciary duty counterclaims. Answering questions on the verdict form,

the jury found that the Bart Group had not breached the parties’ contract but that

Mercado had breached it by: (1) improperly terminating it; (2) hiring another

exclusive agent while the parties’ contract was still in force; and (3) failing to

perform after November 22, 2006. The jury also found that the Bart Group owed

Mercado a fiduciary duty separate and apart from the parties’ contract but that it

had not breached that duty to Mercado.

       In phase II of the trial the jury heard evidence on and decided the Bart

Group’s tortious interference with contract claims against Mercado and the

question of damages for his breach of contract.3 Two days after its first verdict, the

jury returned a second verdict, which also included answers to questions on the

verdict form. The jury found that, although Mercado had interfered with two of the

Bart Group’s existing contracts with third parties, the interference was not with the

intent to injure or destroy existing business relationships, so Mercado was not

liable to the Bart Group for tortious interference with its contracts. On the question



       3
         The district court stated that it divided the trial this way “to avoid the needless
presentation of evidence.” It reasoned that if the jury found that the Bart Group had breached
the parties’ contract, there could be no tortious interference claims. As it turned out, the jury did
not find a breach by the Bart Group and no issue has been raised about the district court’s
reasoning.

                                                  6
of whether Mercado owed any of the Bart Group damages, the jury found that

neither Bart Enterprises nor any of its five assignees had been damaged by

Mercado’s breach of the contract. The jury had been instructed that it could award

nominal damages, but it chose not to do so. The Bart Group did not object to the

verdict on inconsistency grounds, or on any other grounds, before the jury was

dismissed.

      The district court entered a final judgment on February 4, 2009, and the

parties filed post-judgment motions. The Bart Group filed motions asking the

court to: (1) amend or “correct” the judgment to clarify the parties’ intellectual

property rights and to add nominal damages for the Bart Group; (2) grant it a

judgment including nominal damages or amend or clarify the form of the final

judgment to include nominal damages; or (3) grant a new trial on the issue of

nominal and actual damages; and (4) conduct a status conference. Mercado filed a

renewed motion for judgment as a matter of law on the Bart Group’s breach of

contract claim against him and on his breach of contract and breach of fiduciary

duty counterclaims. He also filed a motion to alter or amend the judgment, which

had indicated that the Bart Group had prevailed “on all claims.” As Mercado’s

motion pointed out, he had prevailed on the Bart Group’s tortious interference

claims. The court granted that aspect of Mercado’s motion to alter or amend, but it


                                          7
denied the remainder of his motions.

       Mercado appealed the final judgment, including the summary judgment

rulings against his counterclaims, but later voluntarily dismissed his appeal.

Unhappy that it was not awarded any damages for Mercado’s breach, the Bart

Group appealed and has continued to pursue its appeal.

                                               II.

       The Bart Group contends, on a variety of grounds, that the district court

erred by denying its motion for a new trial on the issue of damages. We review the

denial of a motion for a new trial only for an abuse of discretion. St. Luke’s

Cataract and Laser Inst., P.A. v. Sanderson, 573 F.3d 1186, 1201 n.16 (11th Cir.

2009). Deference “‘is particularly appropriate where a new trial is denied and the

jury’s verdict is left undisturbed.’” Id. (quoting Rosenfield v. Wellington Leisure

Prods., Inc., 827 F.2d 1493, 1498 (11th Cir. 1987)).

                                              A.

       The Bart Group first contends that the district court abused its discretion by

imposing time constraints on the trial. Before trial began the court limited each

side to 25 hours for the presentation of witnesses and other evidence at trial.4 The



       4
        Initially, the trial court allotted 26 hours per side, but somewhere along the way that
limit was trimmed to 25 hours per side. The parties agree that they were given 25 hours each, so
for convenience and clarity that is the length of time we refer to throughout this opinion.

                                               8
Bart Group did not object or suggest that it was not being given enough time.

During phase I of the trial, however, the Bart Group exceeded its 25 hour total time

limit for both phases. Before phase II began, the district court told counsel for the

Bart Group that he had already gone 26 minutes over his entire allotted time.

Counsel asked for “additional time, mostly because of the translation delay.”

      The district court suggested giving both sides 3 more hours each for the

presentation of evidence during phase II. Counsel for Mercado responded that

three hours was “way too much time.” Counsel for the Bart Group stated that he

had three witnesses, and “I certainly can do it in three [hours]. And that is why I

am willing to waive opening and just call my first witness just to get it going.” The

court discussed giving each side less than three hours of additional time, asking the

attorneys: “So don’t you think you can put on your case in two and-a-half hours?”

Counsel for the Bart Group answered, “I will do my absolute best.” The court

stated that it believed the two sides could get it done in the total allotted time of six

hours, especially because they had no interpreters in phase II. Counsel for the Bart

Group agreed, responding, “We’ll make it go faster.” There was nothing

resembling an objection or any suggestion that three hours per side was not enough

for the presentation of evidence in phase II.

      Despite its counsel’s earlier acceptance of the time limitations, after the jury


                                            9
ruled against it on damages in phase II, the Bart Group moved for a new trial on

damages because its time had been limited. The district court denied the motion,

pointing out that the 25 hours total that it had initially allotted for each side to

present evidence was based on the attorneys’ representations about how long they

would need. The court added that “[u]ltimately, the trial took thirteen days, more

than 30% longer than the parties had represented would be necessary, and the

Court granted the parties additional time.” The court believed that it had not

rigidly or inflexibly adhered to the time constraints. It also noted that the Bart

Group had failed to proffer any evidence or witnesses that it was unable to present

to the jury because of the time limit. For those reasons, the court held that the time

limits were reasonable and that the Bart Group was not entitled to a new trial on

damages.

                                           B.

      A district court has the authority at a pre-trial conference to “establish[ ] a

reasonable limit on the time allowed to present evidence.” Fed. R. Civ. P.

16(c)(2)(O). While the district court “has an obligation to ensure a fair trial,”

United States v. Thayer, 204 F.3d 1352, 1355 (11th Cir. 2000), it also “has broad

discretion in the management of the trial,” and we will not reverse a judgment

based on the court’s trial management rulings “absent a clear showing of abuse.”


                                            10
United States v. Hilliard, 752 F.2d 578, 582 (11th Cir. 1985).

      The Bart Group points out that some courts have cautioned against overly

rigid application of time constraints on the presentation of evidence at trial, but

none of the decisions it cites actually found that a district court had abused its

discretion in imposing time limits. They all recognize the discretion that district

courts have to impose time limits. See, e.g., Amarel v. Connell, 102 F.3d 1494,

1514 (9th Cir. 1996) (“The case law makes clear that where a district court has set

reasonable time limits and has shown flexibility in applying them, that court does

not abuse its discretion.”); McKnight v. General Motors Corp., 908 F.2d 104, 115

(7th Cir. 1990) (“[I]n this age of swollen federal caseloads district judges must

manage their trials with an iron hand—must scrutinize the witness list and the

exhibit list with a beady eye and ruthlessly prune redundant or marginal evidence.

We do not reverse district judges who do this.”), superseded by statute on other

grounds as stated in Rush v. McDonald’s Corp., 966 F.2d 1104, 1119 (7th Cir.

1992); Flaminio v. Honda Motor Co., Ltd., 733 F.2d 463, 473 (7th Cir. 1984)

(“The 18 hours that the plaintiffs were given to put in their case were not an

unreasonable period in relation to the complexity of the issues, and in any event the

plaintiffs have failed to indicate what evidence they would have put in, or

cross-examination they would have conducted, if they had had more time.”).


                                           11
      In this case the issue of time limits was waived by the Bart Group. It did not

object when the court initially allotted 25 hours to each side for the presentation of

evidence during the entire trial. And it did not object when the court granted an

extra three hours per side for the presentation of evidence during phase II; instead,

counsel for the Bart Group predicted that they could “make it go faster.” Only

after the jury ruled against it on the issue of damages did the Bart Group object to

the time limitations, raising the matter in a motion for a new trial. That is too late.

      In any event, the district court did not abuse the discretion that Fed. R. Civ.

P. 16(c)(2)(O) provides courts to establish a reasonable time limit for the

presentation of evidence. The court was not rigid or inflexible, as shown by the

fact that when the Bart Group ran over its allotted time the court gave it an extra

three hours so that it could present its case in the second phase of the trial. And the

Bart Group did not proffer to the district court, and has not suggested to this Court,

that there was any other evidence it could have presented if it had been given more

time. There was no abuse of discretion.

                                          III.

      The Bart Group contends that it is entitled to a new trial on damages because

the district court abused its discretion by striking the Bart Group’s six proposed

expert witnesses. Five of those witnesses would have been offered as experts in


                                           12
the following areas: (1) intellectual property transactions under Puerto Rican law;

(2) forensic accounting and valuation; (3) the United States marketing industry; (4)

international telecom, television, and SMS industry; and (5) Mexican marketing

and artist representation. The sixth proposed expert the court struck was described

as a “responsive expert.” The reason the court would not allow testimony from

those witnesses is that the Bart Group had failed to comply with the disclosures

required under Fed. R. Civ. P. 26(a), and the failure to do so was not substantially

justified or harmless.

      The relevant part of Rule 26(a) provides:

      (B) Written Report. Unless otherwise stipulated or ordered by the
      court, this disclosure must be accompanied by a written
      report—prepared and signed by the witness—if the witness is one
      retained or specially employed to provide expert testimony in the case
      or one whose duties as the party’s employee regularly involve giving
      expert testimony. The report must contain:

      (i) a complete statement of all opinions the witness will express and
      the basis and reasons for them;
      (ii) the data or other information considered by the witness in forming
      them;
      (iii) any exhibits that will be used to summarize or support them;
      (iv) the witness’s qualifications, including a list of all publications
      authored in the previous 10 years;
      (v) a list of all other cases in which, during the previous four years,
      the witness testified as an expert at trial or by deposition; and
      (vi) a statement of the compensation to be paid for the study and
      testimony in the case.

      (C) Time to Disclose Expert Testimony. A party must make these

                                         13
      disclosures at the times and in the sequence that the court orders.
      Absent a stipulation or a court order, the disclosures must be made:

               (i) at least 90 days before the date set for trial or for the case to
               be ready for trial; or
               (ii) if the evidence is intended solely to contradict or rebut
               evidence on the same subject matter identified by another party
               under Rule 26(a)(2)(B), within 30 days after the other party’s
               disclosure.

Fed. R. Civ. P. 26(a)(2)(B)–(C) (2008) (emphasis added). Rule 37 provides: “If a

party fails to provide information or identify a witness as required by Rule 26(a) . .

. , the party is not allowed to use that information or witness to supply evidence . . .

at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ.

P. 37(c)(1).

      The Bart Group heaves the bulk of its arguments on this issue at the court’s

action in striking the proposed testimony of its accounting expert, Leonard M.

Cusano. The Bart Group asserts that Cusano’s report was timely served on

Mercado and that it “complied with the spirit of” and “substantially complied with”

Federal Rule of Civil Procedure 26. It argues in the alternative that even if

Cusano’s report did not meet the requirements of Rule 26, there were less severe

sanctions that the district court could have and should have imposed.

      There were a number of problems with the form and substance of the Bart

Group’s expert reports, including the one for Cusano. The record shows that


                                            14
Cusano is the only one of the Bart Group’s experts whose “report”—and we are

being charitable in calling it that—even arguably complied with the requirements

of Rule 26(a), which is why the Bart Group focuses its arguments on the exclusion

of his testimony.

      The court’s first deadline for all expert discovery to be completed was

November 14, 2007, which was extended multiple times, the last being by order of

November 18, 2008, which set a final deadline of November 20, 2008 for all

disclosure of expert reports to be completed. The Bart Group did not provide

Mercado with an expert report for Cusano until after the close of business on the

deadline day, November 20, 2008. Even then, the Bart Group did not provide a

report of the type envisioned by Rule 26(a)(2)(B)–(C). Instead, it faxed to

Mercado a letter stating that Cusano’s services would be limited to:

      A.     Providing a net present value calculation of future damages
             claimed by Plaintiffs as of the date of the trial. I have included
             (attached[)] the formulas that he will be using for that function.

      B.     Providing a calculation of pre-judgment interest on the
             monetary stream of claimed past damages.

      C.     Rebuttal services with regard to any opinions, conclusions or
             applications of your damage/breach expert and/or claims or
             attacks upon the Plaintiffs[’] damage calculations/claims.

The letter stated that counsel had “attached [Cusano’s] retainer letter and scope of



                                         15
work statement.” No curriculum vitae was attached to the materials,5 and there

was no expert report stating, much less explaining, Cusano’s opinions as required

under Fed. R. Civ. P. 26(a)(2)(B). The faxed materials did include some pages

copied from a book that provided formulas for calculating present value and an

unsigned page titled “Damages Report.” That page listed documents that were

used to produce a chart, enclosed with the fax materials, titled “Damages

Summary.” That summary included numbers and showed a damages “total” of

$14,727,177.18. There was, however, no explanation about how that total was

calculated. The materials did not constitute “a complete statement of all opinions

the witness will express and the basis and reasons for them.” Fed. R. Civ. P.

26(a)(2)(B)(i).

       Those shortcomings occurred despite the court’s having granted one

extension after another for the disclosure of expert reports and despite this

unequivocal warning in its November 18 order: “If either side fails to produce

expert reports by the dates set out herein, the side failing to produce the reports

shall be barred from having any expert, for whom a report has not been produced,



       5
         The Bart Group states that Cusano’s CV was included with its responses to Mercado’s
expert witness interrogatories; however, neither the CV nor a list of publications was included
with the materials sent to Mercado on November 20, 2008, as part of the final expert reports.
See Fed. R. Civ. P. 26(a)(2)(C) (2008) (“A party must make these disclosures at the times and in
the sequence that the court orders.”).

                                               16
testify at trial.”

       We have explained that under Rule 26:

       Each witness must provide a written report containing a complete
       statement of all opinions to be expressed and the basis and reasons
       therefor, as well as information about the data considered, the witness’
       qualifications, the compensation earned, and any other recent cases in
       which he or she offered testimony. Any party that without substantial
       justification fails to disclose this information is not permitted to use
       the witness as evidence at trial unless such failure is harmless.

Prieto v. Malgor, 361 F.3d 1313, 1317–18 (11th Cir. 2004) (citation and quotation

marks omitted). The Rule requires that the disclosures must be made “at the times

and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(C) (2008).

       The Bart Group asserts that any non-compliance with Rule 26 involving

Cusano’s report was “cured” when Mercado took Cusano’s deposition on

December 5, 2008, which was about a month before the trial began. According to

the Bart Group, Cusano had been retained only to rebut any report and trial

testimony by Mercado’s accounting expert, and that limited purpose was disclosed

at Cusano’s December 5 deposition.

       Under the schedule the court ordered, the depositions of the expert witnesses

were to occur after the disclosure of their reports. Cusano’s deposition was taken

on the morning of December 5, and that afternoon the district court conducted a

hearing addressing, among other things, Mercado’s motion to strike the Bart


                                         17
Group’s experts. At the hearing, the district court expressed its view that the

materials the Bart Group had faxed to Mercado failed to satisfy the requirements of

Rule 26(a). The court explained:

      [I]f you have an expert, there needs to be something in writing that
      can be used to cross-examine the witness that has his signature on it.
      Your sending a letter to the other side saying, “Here is the formula[ ]
      my expert is going to use,” does not constitute a report, a statement of
      all the opinions.

      Mercado’s counsel, of course, agreed. He read to the court portions of

Cusano’s deposition that morning, which had been quickly transcribed and filed

with the court as a rough draft before the hearing. Mercado’s counsel pointed out

that not only had the Bart Group failed to provide a report from Cusano that

complied with Rule 26 by the November 20, 2008 deadline, but it had still failed to

do so by the time Cusano’s deposition was taken two weeks later on December 5,

2008. As Mercado’s counsel recounted:

      [A]s of November 20th . . . there were no opinions, no memos,
      nothing. And through today, through this morning, when I took this
      gentleman’s deposition, there was absolutely no report provided by
      him.

      He provided this morning a draft of some document that he says he’s
      working on, and that he intends to use, which is basically a summary
      of the numbers that were provided to him in one of the items that we
      attached to our motion [to strike] which is titled “damage report.”
      And he testified this morning that he took those numbers and put them
      in this rough draft that he’s working on so that he can attempt to
      calculate, I think, from what he said, present value of those numbers.

                                         18
       And that’s as far as he has gotten with his draft of that report.

       In an order issued on December 10, 2008, the court granted Mercado’s

motion to strike the Bart Group’s experts, including Cusano, “for the reasons stated

at the [December 5] hearing, including [the Bart Group’s] failure to timely disclose

expert reports and the failure of those reports to comply with Federal Rules of

Civil Procedure 26(a)(2)(B) and 26(a)(2)(C).”6

       On December 12, 2008, after the district court had already ruled that neither

Cusano nor any of the Bart Group’s other experts would be permitted to testify at

trial, the Bart Group sent by fax to Mercado a document titled “Expert Rebuttal

Report” by Cusano. Mercado moved the district court to strike that report and

asked for sanctions; the Bart Group countered by asking the court to allow Cusano

to testify as a rebuttal witness.

       6
         In its order denying the Bart Group a new trial on damages based on the exclusion of the
Bart Group’s experts, the district court also explained that the materials provided to Mercado,
even if they could have been considered reports, were not timely served on him: “The experts’
reports were faxed to opposing counsel after the close of business on the date they were due and
thus were not received by opposing counsel until the next business day.” The district court’s
November 18, 2008 order imposing the deadline for disclosure of expert reports, however,
simply says that the Bart Group must provide copies of their experts’ reports to Mercado “by
November 20, 2008.” The order does not specify that the reports must be provided by “close of
business” on that day. For that reason, one could argue that the district court’s finding about the
untimeliness of Cusano’s “report” is incorrect. But it does not matter. Even assuming the
materials were submitted before the deadline passed on November 20, they did not meet the
requirements of a report as set out in Rule 26(a)(2)(B). For that reason, it is fair to say that the
Bart Group did not timely—or otherwise— provide Mercado with expert reports at any time
before Cusano was deposed on December 5, 2008.



                                                19
      Although it denied sanctions, the district court granted Mercado’s motion to

strike, explaining: “The parties had plenty of time and plenty of Court granted

leeway to work out a practical schedule to exchange expert witness reports. The

parties failed to do so and now [the Bart Group] seek[s] another waiver of the

Court’s deadlines.” The court refused to grant yet another waiver. It did, however,

give the Bart Group something. The court permitted Cusano to be present in the

courtroom during the testimony of Mercado’s damages expert, Reynaldo Quinones

Marquez, and allowed Cusano to advise the Bart Group’s counsel about cross-

examination of Quinones. The court explained that would remove any prejudice

that the Bart Group would have inflicted on itself by failing to comply with Rule

26 and the court-ordered deadline for disclosure. At least it would lessen the self-

inflicted prejudice.

      The exclusion of Cusano and other expert witnesses did not mean that the

Bart Group had no opportunity to offer evidence about damages. It did present the

testimony of Marisela Carvajal, who was the bookkeeper for the companies

comprising the Bart Group. In a pre-trial motion, the Bart Group had said this

about Carvajal: “Marisela Carvajal, who is and has been an officer of the

corporations and a hands on employee working closely with the Mercado contract,

is competent to testify as to the historical data available and damages suffered.”


                                         20
The Bart Group’s president, Guillermo Bakula, also testified about damages. In

those ways the Bart Group was able to present some evidence of damages.

      Later, when the district court denied the Bart Group a new trial on damages,

which it sought because of the exclusion of its experts, the court reiterated that the

materials the Bart Group had sent to Mercado in lieu of actual expert reports failed

to comply with the requirements of Rule 26(a)(2). The Bart Group insisted that its

failure to comply with the rule and the court’s order about disclosure would not

have harmed Mercado if Cusano had been allowed to testify because Mercado had

deposed him before trial. As the district court explained, however, the Bart

Group’s defiance of the rule and order meant that Mercado “had to depose the

accountant [Cusano] without the benefit of a report containing his opinions or

records supporting his testimony, which was not yet final.” The court reasoned

that “[c]learly, being unable to adequately prepare for a deposition constitutes

harm” to Mercado. It denied the motion for a new trial.

      The Bart Group’s failure to provide Mercado with expert reports within the

meaning of Rule 26(a) violated that rule and the court’s orders. The violation was

not “substantially justified,” Fed. R. Civ. P. 37(c)(1); indeed, there was no

justification for it. Nor was the violation “harmless.” Id. The reason for requiring

that an expert report be provided before a deposition is taken is so the opposing


                                          21
party can use the report to examine the expert at the deposition. As the district

court pointed out, it is harmful to deprive opposing counsel of the expert’s report

before his deposition. The district court did not abuse its discretion when it

excluded the testimony of Cusano and the Bart Group’s other experts. See Romero

v. Drummond Co., 552 F.3d 1303, 1324 (11th Cir. 2008) (“The plaintiffs failed to

provide any sufficient disclosures ‘as required by Rule 26(a),’ before the deadline,

so they could not offer any expert witnesses at trial.”) (quoting Fed. R. Civ. P.

37(c)(1)).

                                                IV.

       The Bart Group contends that the district court abused its discretion by

striking its “Contingent Witness List” of lay witnesses, thereby preventing it from

calling any of them to testify. The Bart Group, which prevailed on its breach of

contract claim against Mercado in phase I of the trial, argues that the court’s error

in striking that witness list entitles it to a new trial on the phase II issue of

damages.7


       7
         In arguing that it is entitled to a new trial, the Bart Group’s initial brief to this Court
makes nothing more than a passing reference to its tortious interference with contract claims, and
it did not ask the district court for a new trial on those claims, so any argument about them is
waived. See ,e.g., Old W. Annuity & Life Ins. Co. v. Apollo Grp., 605 F.3d 856, 860 n.1 (11th
Cir. 2010) (holding that an issue presented in passing without “substantive argument” in
appellate brief was waived); Gipson v. Jefferson Cnty. Sheriff’s Office, 613 F.3d 1054, 1056 n.3
(11th Cir. 2010) (holding that an argument not presented to district court was waived on appeal).


                                                22
                                                 A.

       The Bart Group’s “First Amended Witness List” was filed on April 3, 2008.

That document states that it amends “the Initial Witness List” filed on September

4, 2007, but there is no district court docket entry for the initial list and the list

itself is not in the record.8 The witnesses on that amended list start with number

25, apparently picking up where the initial list left off. On May 9, 2008, the Bart

Group filed its “Second Amended Witness List,” adding one witness to those listed

on the first amended list.

       On December 9, 2008, the parties filed a joint pretrial stipulation. As

attachments to that stipulation, the Bart Group submitted three separate documents.


       8
         On May 21, 2007, the court issued an order setting the trial date, pretrial deadlines, and
referral to a magistrate judge. In that order the court set September 4, 2007, as the deadline for
the following:

       Parties shall furnish opposing counsel with a written list containing the names and
       addresses of all fact witnesses intended to be called at trial and only those witnesses
       listed shall be permitted to testify unless good cause is shown and there is no
       prejudice to opposing party. The parties are under a continuing obligation to
       supplement discovery responses within ten (10) days of receipt or other notice of
       new or revised information.

At oral argument counsel on both sides were unable to provide factual information from the
record about the witness lists, and our excavation of the record revealed no initial witness list. It
appears that an initial list was “furnish[ed] opposing counsel” as the district court directed in its
May 21, 2007 order, but it was not filed with the court. At a pretrial conference on December
22, 2008, counsel for Mercado told the court that “the first plaintiff’s fact witness list that they
filed was sent to my office by [another lawyer who was representing the Bart Group at that
time].” Counsel stated: “That [list] was not filed with the Court, Judge, but I do have a copy of
it. That one is dated the 4th day of September, 2007.” We are able to decide this issue without a
copy of the initial witness list.

                                                 23
All three of those documents were titled “Plaintiff’s Witness List,” but each one

had a different subtitle: “Plaintiff’s Trial Witnesses,” “Plaintiff’s Contingent

Witnesses,” and “Potential Rebuttal Witnesses.”

      On December 18, 2008, the district court ordered the parties to file “final”

witness lists by December 22, 2008:

      Witness Lists: The Parties shall jointly confer in an effort to reduce
      the number of trial witnesses. The parties are required to provide
      revised, final witness lists in two forms—one to be handed to the
      venire panel members to assist in recognition of any potential
      witnesses, and the second to assist the parties and the Court to
      determine the time a witness will be on the stand. The first list of
      witnesses for the venire panel should provide the full name of the
      witness and any identifying information, such as area of residence or
      employment affiliation, to help the prospective jurors determine
      whether they recognize a potential witness. The second form of
      witness list should state each testifying witness, provide a one
      sentence synopsis of the witness’ anticipated testimony (the synopsis
      may be omitted for Guillermo Bakula and Walter Mercado-Salinas),
      and in consultation with opposing counsel, state the amount of time
      needed for direct and cross-examination. The parties must file these
      two lists on or before December 22, 2008 at noon. The Court shall
      hold the parties to the time allocated for each witness.

(some emphasis added).

      On December 22, 2008, the Bart Group filed a document titled “Notice of

Filing Plaintiffs’ Revised Witness Lists,” which stated that it included a “synopsis

of testimonies and time required for direct and cross examination, as ordered by

[the] Court on December 18, 2008.” What was included was two separate


                                          24
documents that were both titled “Plaintiff’s Witness List.” Each had its own

subtitle: “Plaintiff’s Trial Witnesses” and “Plaintiff’s Contingent Witnesses.” In

accordance with the district court’s December 18 order, the Bart Group’s “Trial

Witnesses” list included a statement of the amount of time needed for direct and

cross-examination for each witness. Its “Contingent Witnesses” did not include

that required information.

      On the same day that the Bart Group filed those two lists of witnesses,

Mercado filed a “Motion to Strike [the Bart Group’s] Contingent Witness List and

Witnesses Listed on Plaintiffs’ Trial Witness List and for Sanctions.” That motion

stated as grounds that the Bart Group’s “Contingent Witness List” violated the

court’s December 18 order, “which require[d] the parties to file final witness lists,”

and that it “list[ed] witnesses that have never been disclosed.” Mercado’s motion

identified the following witnesses on the Bart Group’s contingent witness list as

those that had “never been disclosed”:

      Stephanie Shulman, Esq.
      Ray Rodriguez
      Gabriel Reyes
      Jimmy Autran
      Joaquin Balya
      Ricardo Queiros
The motion also pointed out that the Bart Group’s contingent list included “Pablo

                                          25
Camarena [who] was stricken by this court’s Order [DE 281], and also Scott Orth,

[the Bart Group’s] counsel.” Mercado asserted that the Bart Group’s “lists are

improper and have been filed simply to harass [Mercado] and to waste the Court’s

time.”

         On the afternoon of December 22, 2008, the same day that the witness lists

and Mercado’s motion to strike were filed, the court conducted a pretrial

conference. On the subject of the Bart Group’s contingent witness list, the

following exchange occurred between counsel for the Bart Group and the court:

         THE COURT: . . .

              I need for you to help the Court, [Counsel], not hinder the Court,
         by doing things that I have instructed you not to do. And it comes
         across with a bit of hubris on your part.

         [COUNSEL]: I’m sorry. I was trying to help the Court by separating
         the witnesses into two lists.

         THE COURT: When I have ruled on someone and you go ahead and
         add it again, it sort of seems to say something that is probably not
         well-reflective of your—

         [COUNSEL]: Are you referring to Pablo Camarena? Is that the
         witness?

               I’m lost as to what exactly we were referring to. If it is with
         regard to Pablo Camarena, you struck his lay opinions but you did not
         strike him as a witness. And he was actually for a time employed by
         the plaintiff corporations with respect to the Mercado mark. So that is
         why I had him as a contingent witness solely as to personal


                                           26
       knowledge of facts, not as to any lay opinion that you struck.[9]

       THE COURT: Okay.

       [COUNSEL]: So I did not mean any disrespect.

       THE COURT: I am going to grant the motion. The contingent
       witness list is stricken.

       [COUNSEL]: In its entirety?

       THE COURT: I needed the parties to be very self-disciplined and tell
       me who is going to testify, how much time on direct and cross.

       You’ve got to make choices at this point, [Counsel]. But you now
       have 26 hours [to put on all witnesses at trial], and that will help you.
       But anyone that is on the contingent witness list will not be called.

On December 23, 2008, the day after the final pretrial conference, the district court

issued an order that, among other things, granted Mercado’s motion to strike the

contingent witness list, but denied his request for sanctions against the Bart Group.

                                              B.

       Rule 26 requires the pretrial disclosure of “the name and, if not previously

provided, the address and telephone number of each witness—separately

identifying those the party expects to present and those it may call if the need

arises.” Fed. R. Civ. P. 26(a)(3)(A)(i). As for the timing of these disclosures, Rule



       9
        Actually, the district court’s December 10 order struck Camarena as an expert witness
because the Bart Group had not disclosed to Mercado the expert witness reports and information
required by Rule 26(a) and by the court’s order.

                                              27
26 provides that “[u]nless the court orders otherwise, [they] must be made at least

30 days before trial.” Fed. R. Civ. P. 26(a)(3)(B). Rule 26(a) does not strip the

district court of its authority to manage trials and to impose different requirements

for the disclosure of witnesses where reasonable, including requiring parties to

submit final, non-contingent witness lists.

      A district court has broad authority “to control the pace of litigation before

it.” Chrysler Int’l Corp. v. Chemaly, 280 F.3d 1358, 1360 (11th Cir. 2002).

Similarly, the Ninth Circuit has explained:

      We begin with the principle that the district court is charged with
      effectuating the speedy and orderly administration of justice. There is
      universal acceptance in the federal courts that, in carrying out this
      mandate, a district court has the authority to enter pretrial case
      management and discovery orders designed to ensure that the relevant
      issues to be tried are identified, that the parties have an opportunity to
      engage in appropriate discovery and that the parties are adequately
      and timely prepared so that the trial can proceed efficiently and
      intelligibly.

United States v. W.R. Grace, 526 F.3d 499, 508–09 (9th Cir. 2008) (en banc); see

also Chrysler Int’l, 280 F.3d at 1360 (“Given the caseload of most district courts

and the fact that cases can sometimes stretch out over years, district courts must

have discretion and authority to ensure that their cases move to a reasonably timely

and orderly conclusion.”); Johnson v. Bd. of Regents, 263 F.3d 1234, 1269 (11th

Cir. 2001) (“[W]e accord district courts broad discretion over the management of


                                          28
pre-trial activities, including discovery and scheduling.”).

       The Bart Group argues that the contingent witness list caused no prejudice to

Mercado and that striking it unfairly limited the presentation of its case in phase II

of the trial. The Bart Group did not, however, make any offer of proof to the

district court in the December 22 hearing. It said nothing at all about the testimony

that the witnesses on the contingent list could give or how that testimony would

help prove its entitlement to damages in phase II of the trial. Cf. Murphy v. City of

Flagler Beach, 761 F.2d 622, 626 (11th Cir. 1985) (“The purposes of the

contemporaneous objection and proffer requirements of Fed. R. Evid. 103(a) are to

give the trial judge a chance to correct errors which might otherwise require a new

trial and to give [her] a chance to reevaluate [her] ruling in the light of the evidence

to be offered and to allow the reviewing court to determine if the exclusions

affected the substantial rights of the party offering it.”); United States v. Stokes,

506 F.2d 771, 777 (5th Cir. 1975)10 (holding that the exclusion of a witness’

testimony was not prejudicial to defendant where the offer of proof showed that it

would be cumulative). Nor do the Bart Group’s briefs to this Court explain how

the “contingent” witnesses could have helped it prove damages from Mercado’s



       10
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.

                                              29
breach of contract.

      The district court’s December 18, 2008 order requiring the parties to file one

“final” witness list on December 22, 2008 for a trial that was set to begin on

January 8, 2008 was not an abuse of discretion. The order’s requirement that the

witness list include the amount of time needed for direct and cross-examination of

each witness was not an abuse of discretion. Under the circumstances we have

described, the district court’s December 23, 2008 order striking the Bart Group’s

non-complying contingent witness list, while leaving its other witness list in place,

was not an abuse of discretion.

                                         V.

      The Bart Group also contends that it is entitled to a new trial on damages

because the jury’s verdict awarding no damages was contrary to the great weight of

evidence at trial. This argument centers on two exhibits the Bart Group

introduced at trial showing income and expense summaries from 2005 to 2008 for

five of the corporate plaintiffs. It argues that the income summaries show a

“precipitous drop” from November 2006, which is the date that Mercado breached

the parties’ contract.

      Even though the Bart Group asserts that the evidence about the loss of

income was “uncontested,” it acknowledges that Mercado’s accounting expert,


                                         30
Reynaldo Quinones Marquez, testified that in his view the documents showed that

the Bart Group had been operating at a net loss and suffered no damages as a result

of Mercado’s breach of the contract. Executives for the Bart Group testified in

favor of one set of inferences from the evidence, while Mercado’s expert testified

in favor of opposing inferences. The inferences to be drawn from the documents

were contested. The conflicting testimony presented a jury issue. See Graphic

Prods. Distribs., Inc. v. ITEK Corp., 717 F.2d 1560, 1582 n.41 (11th Cir. 1983)

(“The jury as factfinder, assisted by counsel, must judge the credibility of

witnesses, resolve conflicting evidence and claims, and assess the weight to be

given damages testimony.”). And as the district court explained, the weight of the

evidence was not contrary to the jury’s finding that Mercado had not proximately

caused any damages to the Bart Group because: “[T]he jury could have chosen not

to accept the evidence [the Bart Group] presented as much of the damage evidence

was prepared by [the Bart Group] for trial and [it] proffered few, if any, original

documents in support of [its] damages claims.”

      “Our scope of review of sufficiency of the evidence after denial of a motion

for new trial asserting that ground is very narrow; the trial court’s denial must have

been an abuse of discretion.” Saunders v. Chatham Cnty. Bd. of Comm’rs, 728

F.2d 1367, 1368 (11th Cir. 1984). Considering the evidence as a whole, the


                                          31
conflicting inferences that could be drawn from it, and the credibility issues

presented by the testimony of the witnesses, the district court did not abuse its

discretion by refusing to grant the Bart Group a new trial on damages based on the

sufficiency of the evidence.

                                          VI.

      The Bart Group also contends that it is entitled to a new trial because of a

comment the judge made to the jury in phase II of the trial. After instructing the

jury on the law, the district court closed with these words:

      On behalf of everyone, thank you so very much for your patience and
      your good humor and your attention. It has really been a pleasure
      working with you all. God speed and may you have the judgment of
      Solomon.

Then the court sent the jury out to deliberate. No one objected to that remark,

probably because it seems so unobjectionable.

      Nonetheless, in its motion for a new trial on damages the Bart Group

contended that the district court’s benedictory remarks violated its rights, not by

wishing the jury “God speed,” but by expressing the hope that the jury would have

“the judgment of Solomon.” The district court responded to that argument, when it

belatedly appeared in the motion for a new trial, this way:

      Plaintiffs’ motion lists an additional error: the Court’s comment to
      the jury to “have the wisdom of Solomon.” Overlooking the fact that
      Plaintiffs did not object to the statement at trial, Plaintiffs have not

                                          32
       presented any argument or authority in support of their contention that
       this remark was improper. Therefore, the Court will not address it.

The problem, the Bart Group argues, is that the remark refers to “splitting the

baby” and the jury might have thought that it was being urged to decide the breach

of contract damages issues in favor of Mercado since it had found the liability

issues in favor of the Bart Group—to split the case down the middle and give each

side half.

       The Bart Group’s argument reflects a misunderstanding of scripture that is

almost biblical in proportions. When two women each swore to be the mother of a

child, King Solomon did not split the baby. Instead, he announced his intention to

do that in order to flush out the truth. See 1 Kings 3:16-28. Confronted with the

prospect of the baby being split with a sword, the woman who had falsely claimed

the child responded with the Old Testament equivalent of “let ‘er rip,” while the

woman who had borne the child begged Solomon not to slay the child even if it

meant that she would lose it to the other woman: “[G]ive her the living child, and

in no wise slay it,” she pleaded. Id. at 3:26 (King James Version). Solomon was

wise enough to know that a mother would rather lose her child to another than have

it slain, and so he gave the child to the woman begging for its life to be spared. Id.

at 3:27. And all of Israel was in awe of his wisdom. Id. at 3:28.

       In this case the judge did not instruct the jurors to split the baby. Instead,

                                           33
she wished them the judgment of Solomon. A jury blessed with the judgment of

Solomon would be wise in discerning the truth. Agreeing with the district court,

we wish such wisdom on every jury. Even if the Bart Group had not waived any

issue about the court’s remark, there is nothing wrong with what the court said.

                                              VII.

       The Bart Group contends that the district court erred by denying its renewed

motion for judgment as a matter of law or in the alternative to alter or amend the

judgment to include nominal damages or for a new trial on the issue of damages. It

argues that Florida law entitles it to an award of nominal damages based on the

jury’s phase I verdict that Mercado had breached the parties’ contract.

       Florida law does require an award of at least nominal damages if a breach of

contract has been established. See MSM Golf, L.L.C. v. Newgent, 853 So. 2d

1086, 1087 (Fla. 5th DCA 2003). In MSM Golf the court held that “[a]t the very

least, [the plaintiff] was entitled to nominal damages once the jury found that the

contracts had been breached by [the defendant].” Id. at 1087.11 Similarly, in

Onontario of Fla., Inc. v. R. P. Trucking Co., 399 So. 2d 1117 (Fla. 4th DCA


       11
          In MSM Golf the court determined that the jury verdict finding breach of contract but
awarding no damages was inconsistent; however, “[t]he issue of whether the aggrieved party is
obligated to object to the verdict prior to the discharge of the jury [was] not raised in [that]
appeal.” Id. at 1086 n.1. The appellate court concluded that “once the trial court specifically
recognized the patent inconsistency of the verdict, it was the court’s obligation to order a new
trial.” Id. at 1087.

                                               34
1981), the appellate court reversed the trial court’s judgment granting a directed

verdict for the defendant when the plaintiff failed to prove any actual damages on

its breach of contract claim. Id. at 1118. A new trial was necessary in that case

because the plaintiff was “entitled to nominal damages once the breach of contract

had been established, notwithstanding the absence of evidence regarding the

correct measure of damages.” Id.; see also Price v. S. Home Ins. Co., 129 So. 748,

751 (Fla. 1930) (reversing directed verdict for the defendant insurance company

because “[h]aving declared on the policy and shown the destruction in part by fire

of the building insured [the plaintiff] was entitled to nominal damages, so the

directed verdict was error”). A Florida Fifth District Court of Appeal decision has

also held that a plaintiff who proves breach of contract is entitled to nominal

damages if it cannot prove lost profits:

      [T]his court previously recognized that Schopke had proved that
      IRCC breached the contract in the prior trial. Therefore, Schopke
      would be entitled to nominal damages for the breach of contract by
      IRCC. See Continuum Condominium Ass’n. v. Continuum VI, Inc.,
      549 So. 2d 1125 (Fla. 3d DCA 1989); Zayre Corp. v. Creech, 497 So.
      2d 706 (Fla. 4th DCA 1986); Muroff v. Dill, 386 So. 2d 1281 (Fla. 4th
      DCA 1980), rev. denied, 392 So. 2d 1377 (Fla. 1981). See also U.S.
      Home Corp. v. Suncoast Utilities, 454 So. 2d 601 (Fla. 2d DCA 1984)
      (nominal damages appropriate where plaintiff fails to prove lost
      profits in breach of contract action); Beverage Canners, Inc. v. Cott
      Corp., 372 So. 2d 954 (Fla. 3d DCA 1979) (nominal damages
      appropriate in breach of contract action where plaintiff failed to prove
      lost profits). Consequently, the trial court properly denied IRCC’s
      motion for a directed verdict at the close of Schopke’s case.

                                           35
Indian River Colony Club, Inc. v. Schopke Constr. & Eng’g, Inc., 619 So. 2d 6, 8

(Fla. 5th DCA 1993).

       In Zim v. Western Publishing Co., 573 F.2d 1318 (5th Cir. 1978), our

predecessor court held that “[u]nder Florida law, nominal damages . . . are

recoverable upon a finding of breach of contract even though no proof of further

damages is made out.” Id. at 1326 (footnote omitted). To support that

interpretation of Florida law, Zim cited Hutchison v. Tompkins, 259 So. 2d 129

(Fla. 1972), which held that “[i]t is well established in Florida that where the

allegations of a complaint show the invasion of a legal right, the plaintiff on the

basis thereof may recover at least nominal damages, and a motion to dismiss

should be overruled.” Id. at 132. The Zim opinion also explained that “[a]lthough

an appellate court will ordinarily not reverse because of a failure to award nominal

damages, where costs have been awarded against the appellant, reversal is

required.”12 573 F.3d at 1326. Under Florida law if a jury returns a special verdict

finding breach of contract along with a special verdict awarding no nominal

damages, those verdicts are inconsistent. See MSM Golf, 853 So. 2d at 1087.

       The problem for the Bart Group is that it did not object to the jury’s verdict

       12
      In the present case, however, the district court has already awarded costs to the Bart
Group—not against it.

                                              36
on damages on the basis of inconsistency (or anything else) before the jury was

discharged. The verdicts in the present case are best described as hybrid general

and specific verdicts. The jury found in favor of one party or the other on each

claim, and those findings were coupled with answers to written interrogatories.

See Mason v. Ford Motor Co., 307 F.3d 1271, 1274 (11th Cir. 2002) (“[T]he Rule

49(b) verdict providing for a general verdict coupled with answers to written

interrogatories, is a hybrid of the general and special verdicts.”). We have held

that if the party challenging this type of verdict has failed to object before the jury

is discharged, that party has “waived the right to contest the verdicts on the basis of

alleged inconsistency.” Id. at 1275–76. Florida law applies essentially the same

rule. See Grossman v. Sea Air Towers, Ltd., 513 So. 2d 686, 689 (Fla. 3d DCA

1987) (“[F]ailure to object to the obvious inconsistency in the jury verdict

constituted a waiver.”).

      The Bart Group did not challenge the verdicts in this case as inconsistent

until it filed a post-trial motion seeking either judgment as a matter law, an order

altering or amending the judgment, or a new trial on damages. In that motion the

Bart Group argued, among other things, that the jury’s phase II verdict awarding

no damages was “inconsistent” with its phase I verdict finding that Mercado was

liable to the Bart Group for breaching the parties’ contract. By then the jury was


                                           37
long gone. Because the Bart Group did not object to the verdicts as inconsistent

before the jury was excused, that issue has been waived. See Mason, 307 F.3d at

1275–76.

                                              VIII.

       Advancing the argument that the whole is greater than the sum of its parts,

the Bart Group contends that all of the district court’s “errors” add up to an abuse

of discretion that justifies granting a new trial. Because we have determined that

there were no errors constituting an abuse of discretion, there was no accumulation

of error either.13

       The Florida District Court of Appeal decision that the Bart Group relies on

does not suggest otherwise. See Carnival Corp. v. Pajares, 972 So. 2d 973, 979

(Fla. 3d DCA 2007) (“While we recognize that a single improper remark or

argument might not be so prejudicial as to require reversal, we conclude that the



       13
          The Bart Group also took issue with this statement in the district court’s summary
judgment order: “Upon termination by either Bart [Enterprises] or Mercado, the assignment of
materials, transfer of rights in the materials, and the assignment of the trademark would revert
back to Mercado because the Term would end.” It is clear from the statement’s context in the
district court’s opinion that it is dicta and not a holding, and we do not review statements made
in dicta. See United States v. $242,484.00, 389 F.3d 1149, 1153 (11th Cir. 2004) (en banc) (“A
bedrock principle upon which our appellate review has relied is that the appeal is not from the
opinion of the district court but from its judgment.”) (quotation marks omitted). In any event,
Mercado agreed at oral argument that the challenged statement in the district court’s order is
non-binding dicta, and it stated to this Court that it will not rely on the statement in other
litigation between the parties for res judicata or collateral estoppel purposes. In light of that
concession, the Bart Group’s arguments about that statement are moot.

                                                38
cumulative prejudicial effect of the improper comments noted herein requires a

new trial to protect the overall fairness of the trial court proceedings, and to ensure

that [the defendant] receives a fair trial.”). In the Carnival Corp. case, the court

determined that there were a number of improper remarks made by plaintiff’s

counsel, and they added up to create a prejudicial effect that warranted a new trial.

See id.

      Here, by contrast, the Bart Group has not shown that any of the challenged

rulings by the district court constituted an abuse of discretion. Nothing plus

nothing is nothing, just as “nothing from nothing leaves nothing.”14

      AFFIRMED.




      14
           Billy Preston, “Nothing from Nothing,” on The Kids and Me (A&M Records 1974).

                                              39
