                    United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-1049
                                   ___________

Robert Racicky and Debra Racicky,       *
Husband and Wife; Greg Racicky and      *
Joyce Racicky, Husband and Wife,        *
d/b/a Elk Creek Dairy,                  *
                                        *
            Appellees,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Farmland Industries, Inc.,              *
                                        *
            Appellant.                  *
                                   ___________

                              Submitted: October 7, 2002

                                  Filed: May 1, 2003
                                   ___________

Before McMILLIAN, LAY, and RILEY, Circuit Judges.
                            ___________

RILEY, Circuit Judge.

      Robert Racicky, Debra Racicky, Greg Racicky and Joyce Racicky (Racickys)
operate a commercial dairy farm in Nebraska and brought a negligence action against
Farmland Industries, Inc. (Farmland), a Kansas corporation with its principal place
of business in Missouri. The Racickys alleged Farmland’s negligent feed ration
advice injured their dairy cows. A jury found for the Racickys and calculated their
damages in the amount of $778,496, but also found the Racickys to be 10% at fault.
Denying Farmland’s motion for judgment as a matter of law or, in the alternative, a
new trial, the district court entered judgment for the Racickys in the amount of
$700,646.40, plus costs and interest. On appeal, Farmland contends the Racickys
failed to produce sufficient evidence on the issues of agency, standard of care,
proximate cause and lost profits. We conclude the evidence supports the jury’s
findings on liability and on lost market value damages, but does not support a jury
award for lost profits.

I.     BACKGROUND
       The Racickys operate Elk Creek Dairy, an award-winning commercial Holstein
dairy farm in central Nebraska. Greg Sherwood (Sherwood), a sales and marketing
manager and a dairy specialist with the Aurora, Nebraska, Cooperative Elevator
Company (Co-op), approached the Racickys in April 1996 about providing them feed
rations and ration advice to increase milk production for their herd.1 Thereafter, the
Racickys used Sherwood for ration advice. The Racickys claim they hired Sherwood
for his access to Farmland technical support. During the relationship, Sherwood used
Farmland employees, information, advice, and computer software to prepare rations
for the Racickys. Sherwood also provided the Racickys with Farmland brochures,
literature and joint Co-op/Farmland advertising. In 1997, after Sherwood nominated
the Racickys for a Farmland dairy award, Farmland flew Robert and Debra Racicky
to Kansas City to receive the Farmland award.

      The Racickys had never purchased Farmland or Co-op corn for their rations
until August 1998, at which time they bought corn from Sherwood. The record
reveals this new corn was finely ground. After eating the rations with the new corn,




      1
       Feed rations are created for dairy herds to meet their dietary needs. Rations
are made up of forage and concentrate. The forage usually consists of alfalfa and hay
to provide the necessary fiber. The concentrate is grain and protein derivatives.

                                         -2-
the Racickys' cows experienced rumenal acidosis.2 The Racickys claim this condition
was caused by the new rations, specifically, the fine ground corn which was “too hot”
and fermented too fast in the cow's rumen.3 Out of a herd of 219 cows, fifteen of the
Racickys' cows died and 151 became very ill after eating the new rations. Some of
the 151 sick cows were kept as cull cows (to produce offspring) and others were sold.
After August 1998, the Racickys suffered a decrease in milk production, from
approximately 23,666 pounds of milk per cow per year to approximately 17,100
pounds of milk per cow per year. Because all four issues in this case are fact-
intensive, we will discuss additional facts as necessary to resolve each issue.

II.     DISCUSSION
        A.    Standard of Review
        We review de novo the district court’s denial of Farmland’s post-verdict
motion for judgment as a matter of law. Bass v. GMC, 150 F.3d 842, 845 (8th Cir.
1998). We must decide “whether the record contains sufficient evidence to support
the jury’s verdict.” Id. In doing so, “we must examine the sufficiency of the evidence
in the light most favorable to the [Racickys] and view all inferences in [their] favor.”
Id. We must remain mindful that “[j]udgment as a matter of law is appropriate only
when all of the evidence points one way and is susceptible of no reasonable inference
sustaining the [Racickys’] position.” Id. (citations and quotations omitted). As this
is a diversity action, we must apply Nebraska negligence law. Jordan v. NUCOR
Corp., 295 F.3d 828, 834 (8th Cir. 2002).


      2
       According to the Racicky’s veterinarian, rumenal acidosis “is caused by the
rapid absorption of highly fermentable carbohydrates that produces an excess of
ruminal organic acids.”
      3
       A cow has four stomachs – the rumen, reticulum, omasum and abomasum,
which is the true stomach. A cow’s food ferments in its rumen, the largest of the four
stomach components, where microbes break down the food before it is passed to
other digestive compartments.

                                          -3-
       B.    Agency
       Farmland argues the Racickys failed to prove Sherwood was Farmland’s
apparent agent. According to the Nebraska Supreme Court, apparent authority to act
as another’s agent may only be conferred “if the alleged principal affirmatively,
intentionally, or by lack of ordinary care causes third persons to act upon the apparent
authority.” Franksen v. Crossroads Joint Venture, 515 N.W.2d 794, 801 (Neb. 1994).
The “apparent authority or agency for which a principal may be liable must be
traceable to the principal and cannot be established by the acts, declaration, or
conduct of the agent.” Id. Furthermore, “[o]ne who is placed on inquiry as to an
agent’s or employee’s authority, and who has reasonable means of making inquiry,
occupies the same position in law as if he had actual knowledge of the employee’s
lack of authority, because he is charged with knowledge of the facts which the inquiry
would have developed.” Id.

       Acknowledging the closeness of the apparent agency issue, we find the record
contains sufficient evidence to support the district court’s decision to submit the
agency question to the jury. Although Farmland makes a compelling argument that
the record does not support a finding of apparent agency, this argument was for the
jury, who rejected it.

      Sherwood first visited the Racickys’ farm in April 1996, and gave them his Co-
op business card. At times two others, Jeff Wheeler (Wheeler) and Vaughn Studer
(Studer), visited Racickys' farm with Sherwood, their business cards showed they
were Farmland employees. After the Racickys hired Sherwood, they only paid the
Co-op for materials and services, and did not establish a financial relationship with
Farmland. This evidence tends to negate an inference of apparent agency.

     The record also contains evidence supporting the Racickys’ claim that
Sherwood was Farmland’s agent. Sherwood, Studer, and Wheeler each gave
Farmland brochures to the Racickys. Sherwood nominated the Racickys for a

                                          -4-
Farmland dairy award, which Farmland presented to the Racickys in 1997. Farmland
provided Robert and Debra Racicky an all-expenses paid trip to Kansas City to
receive their award at a Farmland banquet. At this event, Farmland gave the Racickys
information and gifts. The Racickys could have reasonably inferred Farmland was
bestowing gifts and awards to them based on Sherwood’s recommendation.

      The Co-op was a Farmland associated co-op, authorized to use Farmland’s
logos, brand name, advertisements and literature. Farmland also developed joint
advertisements for the Co-op to use. A Farmland advertisement included the
following words: “Technical Services – People are our most valuable resource.”
Under this heading, Farmland listed a number of positions, including: “Local Retail
Sales Specialists (Contact the Nearest VIP Account).” The Aurora Co-op was
considered a Farmland VIP account.

       Sherwood used Farmland on a regular basis to create, modify and build rations.
Sherwood sometimes submitted his rations directly to Farmland for advice and other
times he would just talk to Farmland on the telephone. In building the Racickys’
rations, Sherwood used the Brill computer program acquired from Farmland, and he
had unlimited access to Farmland’s technical support regarding the computer
program. When Sherwood designed a ration using the computer program, the
printouts he gave to the Racickys were entitled “Farmland Industries Suggested Batch
Sheet” and “Farmland’s Summary of Suggested Rations.”

       Farmland assisted Sherwood by giving him direct access to its veterinarians
and its research and feed consultants, which Robert Racicky testified was important
and induced him to hire Sherwood. Sherwood consistently availed himself of
Farmland’s services, which cemented the Racickys’ belief that Sherwood was




                                        -5-
Farmland’s agent.4 Sherwood also visited the Racickys’ farm with Farmland
employees, whom Sherwood consulted before giving his ration advice to the
Racickys.

       When asked whether his decision to use Sherwood was based on anything
Farmland did, Robert Racicky said, “I went with Sherwood because, you know, I
wanted all this experience that was behind Aurora’s Co-op with Farmland.” When
asked whether Sherwood was from the Co-op, Robert said, “Not necessarily from –
I mean, how do you look at Aurora Co-op and Farmland? They are both the same
thing.”

       Viewing the evidence in the Racickys’ favor and giving them the benefit of all
reasonable inferences, a jury could reasonably infer the Racickys used Sherwood
because they believed he was Farmland’s agent. Whether Farmland led the Racickys
to believe Sherwood was Farmland’s agent was properly submitted to the jury.

      C.     Negligence
             1.     Standard of Care
      In a negligence case involving an “alleged tort-feasor [who] possesses special
knowledge, skill, training, or experience,” the standard of care is not that “of a
reasonably prudent person,” but that of a person with “specialized knowledge, skill,
and other qualities.” Cerny v. Cedar Bluffs Junior/Senior Pub. Sch., 628 N.W.2d 697,
704 (Neb. 2001). Farmland argues Sherwood’s ration advice in August 1998
regarding fine ground corn did not breach the applicable standard of care. The
Racickys counter that Sherwood controlled the rations, which rations were “too hot”
because of a high concentrate level based on the fine ground grain. Under Nebraska

      4
       For example, in August 1998, Greg Racicky and Sherwood sat in Sherwood’s
truck on the Racickys’ farm discussing the herd. To obtain technical assistance on
a problem they were discussing, Sherwood used his cellular phone to call Dr. William
Knapper, a Farmland veterinarian.

                                         -6-
law, the applicable standard of care for Sherwood’s ration advice was whether a
reasonable dairy feed specialist, with specialized knowledge, skill, training and
experience, would have recommended using rations with the size of grain particles
actually fed to the Racickys’ dairy herd in August 1998.

       Negligence and the standard of care “do not exist in the abstract, but must be
measured against a particular set of facts and circumstances.” Id. The fact-finder
must “determine what conduct the standard of care would require under the particular
circumstances presented by the evidence and whether the conduct of the alleged
tort-feasor conformed with the standard.” Id. at 705. Whenever “specialized
knowledge, skill, or training” is involved, expert testimony may be necessary to
determine what standard of care is required under the particular circumstances
involved. Id.

      Farmland contends the only evidence on this issue establishes that the use of
fine ground corn in August 1998 was reasonable. Both Sherwood and Dr. Paul
Johnson (Johnson), a veterinarian called by Farmland, testified to that effect.
However, viewing the evidence in the light most favorable to the Racickys, the record
contains sufficient evidence that Sherwood’s recommended use of fine ground corn
breached the standard of care.

        Several witnesses testified to the corn’s size. Dr. Wallace Wass (Wass), a
veterinarian, saw corn at the Racicky farm that looked like swine feed, which is more
finely ground than cow feed. Robert Racicky, who had been farming for forty years,
testified the corn used in the rations in August 1998 “looked like corn meal.”
Furthermore, he testified that, once he used the new ration with the new Farmland
corn in August 1998, disaster struck. Greg Racicky testified the corn the Co-op
supplied in the summer of 1998 was different from the corn the Racickys had been
feeding their cows: “Theirs looked like soy bean meal or just a little bit coarser. . . .



                                          -7-
Probably just a little bit larger texture than corn meal.” These three witnesses showed
clear surprise at how finely ground the corn was.

       Doug Weich (Weich), an independent dairy nutritionist, said, “I felt that the
cause in feeding rations that were, in the industry, that we consider to be too hot, high
concentrate level.” Dr. Randall Pedersen (Pedersen), a long-time veterinarian
working with nutritionists in his practice and having extensive knowledge of cows’
nutrition, testified that nutrition is the basis for livestock production, noting he
evaluates feed from a livestock or feedbunk perspective. Pedersen explained a cow’s
diet and the forage to concentrate ratio, noting specifically how fine ground corn was
used in the Racickys’ rations received from Farmland. When considering the cause
of the health problems the Racickys’ herd was experiencing in 1998, Pedersen
consulted Weich, and also observed the cows and the rations. Pedersen opined the
herd’s health problems were caused by “[s]ubacute rumenal acidosis due to
improperly put together ration.” He concluded the problem with the ration was that
“[i]t was very fine” and the corn in it was “fine.”

        Sherwood’s rations contained fine ground corn, which Farmland produced and
the Co-op delivered. Relying on Sherwood’s ration advice, the Racickys fed these
rations to their herd and 166 cows either died or became sick. Given the combined
testimony of Wass, Pedersen, Weich and the Racickys, the standard of care became
a disputed fact issue, and the jury measured the standard of care “against a particular
set of facts and circumstances.”5


      5
       Farmland also argues Sherwood only recommended fine ground corn, but that
the actual corn the Co-op delivered to the Racickys could have been more finely
ground, which would mean Sherwood’s advice did not breach the standard of care.
Sherwood, Wheeler, and Studer were on the Racickys’ farm many times. Sherwood’s
Co-op delivered the Farmland corn to the Racickys. Grain size, whether it met the
standard of care and whether Sherwood recommended the actual grain size the
Racickys used, was properly before the jury.

                                          -8-
             2.    Proximate Cause
        Farmland contends the record contains insufficient evidence to show
Sherwood’s ration advice proximately caused injury to the Racickys’ herd. “A
proximate cause is a cause (1) that produces a result in a natural and continuous
sequence and (2) without which the result would not have occurred.” Meyer v. State,
650 N.W.2d 459, 463 (Neb. 2002). “The issue of proximate cause, in the face of
conflicting evidence, is ordinarily a question for the trier of fact.” World Radio Lab.,
Inc. v. Coopers & Lybrand, 557 N.W.2d 1, 13 (Neb. 1996). Farmland makes a hyper-
technical argument that the evidence shows the rations generally–and not the corn
specifically–caused the health problems. Farmland also points to conflicting
testimony as to when the health problems began, noting the Co-op did not deliver
Farmland corn until August 1998.

       Johnson testified that fine ground corn and rations with fine ground corn did
not cause herd-wide acidosis. Pedersen, on the other hand, considered potential
causes and eliminated all causes except one: “Subacute rumenal acidosis due to
improperly put together ration.” Dr. Randall Anderson (Anderson), a Nebraska
veterinarian, testified “Dr. Pedersen probably sees more cows than any other
veterinarian in the state of Nebraska, so I knew he was perfectly capable of handling
the situation.” Weich, the nutritionist, testified he believed the herd-wide health
problems were caused by the feeding rations. Wass testified the cause of the acidosis
“absolutely had to be related to feeding a very high energy ration in a form that was
finely divided, very finely ground that obviously didn’t provide enough roughage
effect to prevent the acidosis that developed in these animals.” Greg and Robert
Racicky testified their cows had no health problems when the Racickys were grinding
their own corn, but the herd began experiencing health problems when they started
using the fine ground corn from Farmland.

      The jury answered the proximate cause question. Based on this record, we will
not question the jury’s answer.

                                          -9-
       D.      Damages
       Once the Racickys proved Sherwood’s negligent ration advice caused damage
to the herd, the Racickys were entitled to damages. For personal property that cannot
be restored to substantially its prior condition, “the measure of damages is the lost
market value plus the reasonable value of the loss of use of the property for the
reasonable amount of time required to obtain a suitable replacement.” Chlopek v.
Schmall, 396 N.W.2d 103, 110 (Neb. 1986). “Where property used for commercial
or business purposes cannot be rented, then loss of profits may establish the
reasonable value of the loss of use.”6 Id. The district court instructed the jury that the
Racickys were entitled to lost market value damages and temporary loss of use or lost
profits damages, if proven.

       The jury found the Racickys’ damages to be $778,496, but the jury was not
asked to separate its findings on damages. Thus, we do not know how much the jury
awarded for lost market value and for lost profits. The parties seem to agree on the
lost market value portion of the damages award. Farmland’s appeal concerns only the
lost profits aspect of the jury’s award.

            1.    Lost Market Value
      Lost market value “is the difference in the market value of the property
immediately before and after the injury.” Shotkoski v. Standard Chem. Mfg. Co., 237
N.W.2d 92, 98 (Neb. 1975). The Racickys claim the jury found their lost market
value damages to be $221,800.7 Farmland does not dispute this calculation.

      6
       It is undisputed the Racickys were unable to replace the injured cows by
renting or purchasing cows.
      7
        This conclusion is based on the following calculation: (1) 15 dead cows, with
a lost market value of $1,700 each, equals $25,500; and (2) 151 damaged cows, with
a lost market value of $1,300 each ($400 fair market value), equals $196,300. This
calculation is supported by the record. Greg Racicky testified a cow in good health
is worth $1,700 and 15 died. He then testified that 75% of the other cows were

                                          -10-
Farmland asks this court to modify the district court’s judgment by reducing the
Racickys’ damages to only those for direct injury to the cows, i.e., $221,800 reduced
by the 10% fault assessed to plaintiffs, i.e., $199,620. Because sufficient evidence
exists on lost market value damages, the district court properly submitted this element
of damages to the jury.

           2.    Lost Profits
      The Nebraska Supreme Court explains when lost profits may be recovered:

      [A] claim for lost profits must be supported by some financial data
      which permit an estimate of the actual loss to be made with reasonable
      certitude and exactness. Uncertainty as to the fact of whether damages
      were sustained at all is fatal to recovery, but uncertainty as to amount is
      not if the evidence furnishes a reasonably certain factual basis for
      computation of the probable loss. Loss of prospective profits may be
      recovered if the evidence shows with reasonable certainty both its
      occurrence and the extent thereof.

World Radio Lab., 557 N.W.2d at 13 (citations omitted); see Evergreen Farms v. First
Nat’l Bank & Trust Co., 553 N.W.2d 728, 734 (Neb. 1996) (“lost profits need not be
proved with mathematical certainty,” but cannot be based on “evidence which is
speculative and conjectural”). “The certainty requirement for the recovery of lost
profits balances the defendant’s right to avoid liability out of proportion to its
culpability against the plaintiff’s right to full compensation.” Triple R Indus., Inc. v.
Century Lubricating Oils, Inc., 912 F.2d 234, 238 (8th Cir. 1990). “The law generally
is unfavorable to the recovery of losses of profits in tort actions.” Id. (quoting K &
R, Inc. v. Crete Storage Corp., 231 N.W.2d 110, 114 (Neb. 1975)).

       Our court has recognized, “under Nebraska law, the key to establishing lost
profits is the establishment of a course of business activity through business records.”


acutely injured and had to be sold for $400.

                                          -11-
Triple R Indus., 912 F.2d at 238; see American Rd. Equip. Co. v. Extrusions, Inc., 29
F.3d 341, 344 n.2 (8th Cir. 1994) (“Under Nebraska law, it is ‘critical’ that business
records as well as oral testimony support a lost profits claim.”) (citing El Fredo Pizza,
Inc. v. Roto-Flex Oven Co., 261 N.W.2d 358, 365 (Neb. 1978)); K&R, Inc., 231
N.W.2d at 116 (holding plaintiff failed to prove lost profits with reasonable certainty
by relying solely on oral testimony and failing to produce available records).

       We are at a loss to know how the jury here calculated the damages award.8
Claiming “voluminous damages evidence was adduced at trial,” the Racickys direct
our attention to voluminous pages of the record.9 The oral testimony of Robert and
Greg Racicky on lost profits involved mere speculation and conjecture. No
independent experts testified to the Racickys’ lost profits. No business records
supporting lost profits were offered. Without financial data establishing profitability,
the lost profits award cannot stand.

     The Racickys reference how they bought their land, made improvements,
expanded their herd, built a six-figure equity, sustained substantial depreciation and



      8
        We are reminded of the pasta sauce commercial where the actor claims “It’s
in there!” When discussing whether sufficient evidence exists in the record to
support a lost profits claim, the Racickys claim “It’s in there,” while Farmland claims
“It’s not in there.”
      9
        We are frustrated by the failure of the Racickys to cite specifically to the
record in support of their lost profits argument. See Fed. R. App. P. 28(a)(7) (briefs
must contain “a statement of facts relevant to the issues submitted for review with
appropriate references to the record”); Fed. R. App. P. 28(a)(9) (briefs must cite to
authorities and the record in the argument section); DiCarlo v. Keller Ladders, Inc.,
211 F.3d 465, 468 (8th Cir. 2000) (admonishing appellant’s “counsel for wasting this
Court’s limited resources” by submitting a brief that lacked “even rudimentary
citations to the record”). With a record spanning thousands of pages, citing scores
of scattered pages at a time is not helpful.

                                          -12-
purchased a $23,587 grinder. Such general information does not furnish a jury with
a reasonably certain factual basis for computing lost profits.

       The Racickys’ lost profits argument relies on their theory that lost milk
production equals lost profits. The Racickys contend the jury awarded them damages
for the milk loss sustained for one full lactation period for the cows that were killed
or injured, contending the value of one lactation’s milk loss totals $502,067. The
Racickys reason that 166 cows were unable to produce any milk, and each cow would
have produced 23,430 pounds of milk per year. The Racickys testified they would
have received 13.5 cents per pound of milk, which takes into account the cost of
hauling the milk. We calculate the total payment for this milk production would have
been $525,066.30, even though the Racickys used the number $502,067. The
Racickys then contend all of this would have been profit, as they would not have
incurred additional expenses producing this milk. Based on this reasoning, the
Racickys argue the jury’s award includes at least one full year’s lactation and part of
a second, resulting in approximately $556,696 for lost profits. The Racickys also
claim the jury awarded them veterinary expenses, even though the jury was only
instructed on fair market value reduction and temporary loss of use damages.

       The Racickys fail to cite a Nebraska case that allows lost production to
substitute for lost profits. See Shotkoski, 237 N.W.2d at 97 (lost profits and lost
production involve different questions). Lost production and lost profits are not
necessarily, if ever, synonymous.

      Before discussing the lost profits further, we first note the record is devoid of
evidence supporting the lost production claim. No testimony or records support the
contention the Racickys’ herd lost an entire lactation year due to the injuries caused
by the rations containing the fine ground corn. The evidence does not show the




                                         -13-
herd’s milk production dropped to zero.10 Robert and Greg Racicky testified that, at
the time of trial in August 2001, the herd’s production average was a little over
18,000 pounds of milk per cow per year. Robert testified that, in August 1998, the
average was over 23,000 pounds of milk per cow per year, but dropped to below
17,000 pounds of milk per cow per year after the health problems. Robert testified
the lowest average was 17,100 pounds. He also testified that, at the time of trial, he
was milking 127 cows. The Racickys never lost a year’s lactation production.

       Even if Racickys had provided evidence they lost an entire year’s lactation,
they were required to prove how lost production related to lost profits. If we
understand the Racickys’ argument, they claim a single lactation cycle involving 166
cows produces profits exceeding one-half million dollars. This represents a
substantial amount of profit that should have been captured in business records and
explained by financial testimony. The Racickys failed to produce evidence of their
yearly revenues and expenses. The Racickys offered no financial data or testimony
establishing that 166 cows produce $500,000 in annual profit.


      10
        The Herd Summaries do not show a drop from 23,000 pounds of milk per cow
per year to zero and do not show the number of cows in the herd ever dropped below
159. The Herd Summaries contain the following statistics on the Racickys’ milk
production:
      Date Cows in Herd            Milk Prod./Rolling # Died        # Sold
                                   Yearly Herd Avg.
      8/1/98        219                   23,468            –          –
      10/10/98      199                   23,666            1          31
      11/22/98      191                   23,659            2          10
      1/17/99       182                   23,123            3          11
      3/14/99       172                   22,445            0          11
      5/15/99       181                   21,688            2          10
      7/13/99       171                   20,496            1          9
      8/22/99       159                   19,535            1          12
      10/27/99      204                   18,062            4          6
      12/5/99       219                   17,615            2          2

                                        -14-
       Farmland cites the Racickys’ tax records which show either small profits or
small losses on Schedule F, Form 1040, entitled “Profit or Loss From Farming.” The
Racickys did not call a witness to discuss the tax consequences of farming and
whether Schedule F is an accurate indicator of whether the Racickys’ operation was
profitable.

       What evidence regarding lost profits was presented? Robert Racicky testified
their dairy’s break even point was when the cows were producing 20,000 pounds of
milk per cow per year on a rolling herd average and they were losing money when the
herd average was 17,000 pounds of milk per cow per year. Robert also testified the
break even point changed over the years. When Greg Racicky was asked whether he
was making any money or breaking even when producing around 18,000 pounds of
milk per cow per year, he said, “A lot of factors are involved in that. It depends on
our feed cost, the price of milk. That is very borderline, you know. We would like
to see 20,000 [pounds per cow per year] to be successful, you know, to make a
living.” This testimony, unsupported by expert testimony or financial data,
demonstrates several material variables and does not support a lost profits award with
any certainty.

      Other evidence makes the lost profits determination even more speculative.
The Racickys testified the cows in the herd lactated at different times. In addition,
they acknowledged some cows died naturally, some were sold, others were bought,
some became dry, and some would produce. This natural herd management and its
impact on the profitability of the 166 injured cows was not explained at trial.

       The financial data presented, though voluminous, was not accompanied by
testimony explaining its significance. On appeal, the Racickys have not highlighted
specific evidence supporting a lost profits award. If the Racickys cannot cite to
specific evidence supporting the lost profits award, how could jurors reasonably
understand what evidence supported a lost profits claim?

                                        -15-
       Because the Racickys provided insufficient evidence for a jury to determine
lost profits with reasonable certainty, the district court should not have submitted this
element of damages to the jury. Therefore, we must reverse the damages award.

III.   CONCLUSION
       We conclude sufficient evidence supports the jury’s verdict on the issues of
apparent agency, standard of care and proximate cause. We also agree with the
parties that sufficient evidence supports a lost market value of $221,800. However,
the record lacks sufficient evidence to support a lost profits award, and this element
of damages should not have been submitted to the jury. The jury was not instructed
on any other damages. “In cases where a jury awards actual damages in excess of the
amount proved, remittitur to the maximum amount proved is an appropriate remedy.”
American Rd. Equip. Co., 29 F.3d at 345 (quoting Knickerbocker v. First Nat’l Bank,
827 F.2d 281, 289 n.6 (8th Cir. 1987)). We reverse the district court’s judgment on
damages and remand for a new trial on lost market value damages only, unless the
Racickys, within thirty days after the issuance of our mandate, consent to a remittitur
of the damage award to $199,620 ($221,800 less 10%).

       A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -16-
