     Case: 18-20405      Document: 00515243330         Page: 1    Date Filed: 12/19/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals

                                      No. 18-20405
                                                                             Fifth Circuit

                                                                           FILED
                                                                   December 19, 2019

PPD ENTERPRISES, L.L.C.,                                              Lyle W. Cayce
                                                                           Clerk
              Plaintiff - Appellee Cross-Appellant

v.

STRYKER CORPORATION; STRYKER SALES CORPORATION; MAKO
SURGICAL CORP.; HOWMEDICA OSTEONICS CORP., doing business as
Stryker Orthopaedics,

              Defendants - Appellants Cross-Appellees



                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 4:16-CV-507


Before JOLLY, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       This appeal arises out of a contractual dispute between PPD Enterprises,
L.L.C. (PPD), a distributor of medical devices, and MAKO Surgical Corporation
(MAKO), a medical device manufacturer. PPD sued MAKO, along with its
parent company, Stryker Corporation (Stryker), and two Stryker subsidiaries,
Stryker Sales Corporation (Stryker Sales) and Howmedica Osteonics



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 18-20405
Corporation (Howmedica), alleging that MAKO breached its contract with PPD
and asserting a claim of tortious interference with PPD’s business
relationships. The district court summarily dismissed the tortious interference
claim and—following a jury trial—entered a money judgment for PPD on the
breach of contract claim. MAKO appeals, arguing that it is entitled to judgment
as a matter of law, or alternatively, a new trial. MAKO and the Stryker
defendants also appeal a motion to reconsider that was stricken for
noncompliance as well as the district court’s refusal to award costs in
connection with a summary judgment. PPD cross-appeals, challenging the
district court’s summary judgment rulings as to its tortious interference with
business relations claim. We AFFIRM.
      In June 2013, MAKO and PPD entered into a “Sales Representative
Agreement” (the Agreement) for an initial term of two years. Pursuant to the
Agreement, PPD became MAKO’s exclusive Houston-area sales representative
for the MAKO RESTORIS partial knee and total hip implant systems and
related consumables and instruments. MAKO was soon after acquired by
Stryker Corporation and became a wholly owned subsidiary of Stryker. In
October 2014, MAKO notified PPD that it was terminating the Agreement
prematurely, claiming that it was entitled to terminate because PPD had
materially and incurably breached the Agreement. MAKO cited generally to
PPD’s alleged violation of Section 4.1 of the Agreement regarding PPD’s
“ongoing responsibilities.”
      PPD denied any noncompliance and, in response, brought suit against
MAKO for breach of contract based on its early termination. PPD also alleged
that Stryker, Stryker Sales, and Howmedica, along with MAKO, “knowingly
and intentionally interfered with PPD’s business relationships” with Dr.
Freedhand and Memorial Hermann. MAKO counterclaimed, reiterating its
view that its termination was justified as a result of PPD’s material breach and
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                                  No. 18-20405
alleging that PPD “among other things” sold products for a MAKO competitor
during the contract term. All parties moved for summary judgment.
      The district court denied PPD’s motion but granted the defendants’
motion in part. The court dismissed PPD’s tortious interference claim, but
allowed the parties’ competing contract claims to proceed to a jury trial. 1
During the trial, MAKO moved more than once for judgment as a matter of law
(JMOL) under the rationale that PPD first breached the Agreement, which
permitted MAKO’s termination. In addition, MAKO objected vigorously to the
testimony of Teresa Ford, a lawyer who represented PPD during the
negotiation of its agreement with MAKO, to no avail. Each motion for JMOL
was denied, and Ford was allowed to testify.
      Following a five-day trial, the jury returned a verdict in favor of PPD,
finding by a preponderance of the evidence that “MAKO breached the
agreement . . . by terminating it without sufficient reason to do so.” MAKO
renewed its motion for JMOL and, in the alternative, moved for a new trial in
light of Ford’s purportedly prejudicial testimony. The district court denied both
motions and entered judgment on the verdict. PPD was awarded damages in
the amount of $232,331.50, as well as prejudgment and postjudgment interest.
      On appeal, the defendants renew their arguments for JMOL and their
objections to Ford’s testimony. Additionally, they argue that PPD failed to offer
sufficient proof of its damages; that the district court erred in striking for
noncompliance their motion for reconsideration challenging the prejudgment
interest calculation; and that, as prevailing parties, Stryker, Stryker Sales,
and Howmedica should have been awarded costs when the district court
dismissed PPD’s tortious interference claim. PPD cross-appeals, challenging



      1In a separate motion, PPD moved the district court to reconsider its summary
judgment rulings, but that motion was also denied.
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                                No. 18-20405
the dismissal of the tortious interference claim but otherwise urging
affirmance.
      This appeal has been vetted in every sense. In addition to our thorough
study of the briefs, we have heard the oral arguments of the parties and their
answers to the questions that we have raised. We have now reviewed all
relevant parts of the record and consulted applicable law. We see no reason to
disturb the verdict of the jury or the partial summary judgment order entered
by the district court. We simply have found no reversible error or abuse of
discretion. Accordingly, we AFFIRM the judgment of the district court.




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