                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 14-1098


ROBERT DONNERT; DAVID DONNERT,

                Plaintiffs - Appellees,

          and

TIFFANY HARTMANN,

                Plaintiff,

          v.

FELD ENTERTAINMENT, INC., d/b/a Ringling Bros. and Barnum &
Bailey Circus,

                Defendant - Appellant.



                             No. 14-1147


ROBERT DONNERT; DAVID DONNERT,

                Plaintiffs - Appellants,

          and

TIFFANY HARTMANN,

                Plaintiff,

          v.

FELD ENTERTAINMENT, INC., d/b/a Ringling Bros. and Barnum &
Bailey Circus,

                Defendant - Appellee.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.   T. S. Ellis, III, Senior
District Judge. (1:13-cv-00040-TSE-TRJ)



Argued:    March 24, 2015                Decided:   May 18, 2015


Before TRAXLER, Chief Judge, and WILKINSON and NIEMEYER, Circuit
Judges.


Affirmed   by   unpublished opinion. Judge Niemeyer wrote the
opinion,   in   which Chief Judge Traxler and Judge Wilkinson
joined.


ARGUED: William Boyle Porter, BLANKINGSHIP & KEITH, PC, Fairfax,
Virginia, for Appellant/Cross-Appellee.    Robert Wayne Pierce,
THE   PIERCE   LAW    FIRM,  LLC,   Annapolis,    Maryland,   for
Appellees/Cross-Appellants.      ON   BRIEF:   Laurie    Proctor,
BLANKINGSHIP    &    KEITH,   PC,    Fairfax,    Virginia,    for
Appellant/Cross-Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
NIEMEYER, Circuit Judge:

       David        and     Robert        Donnert,          circus      performers,             horse

trainers, and brothers, commenced this breach-of-contract action

against Feld Entertainment, Inc., which operates the Ringling

Bros.    and    Barnum          &    Bailey     Circus.          They       alleged      that    Feld

Entertainment             wrongfully          terminated         two        contracts       --     an

April 21, 2010 Circus Acts Employment Contract (the “Employment

Contract”)          and    an       April 21,      2010    Lease       of    four       horses    and

related    equipment            for    use    in   the    Donnerts’          circus      acts    (the

“Lease”) -- and that it violated the Florida Whistle-Blower’s

Act of 1986, Fla. Stat. § 448.102(3), by retaliating against

them     for    complaining            about       circus    safety          and    refusing      to

participate in a dangerous show.

        Before trial, the district court dismissed the Donnerts’

claim under the Whistle-Blower’s Act but permitted the contract

claims to go to trial.                   A jury returned a verdict in favor of

the Donnerts in the amount of $114,400.

        Both    parties         appealed        the     judgment.            On    appeal,       Feld

Entertainment         challenges          two      jury    instructions            given    by    the

district court and the court’s denial of its post-trial motions.

The Donnerts challenge the dismissal of their Whistle-Blower’s

Act claim and the exclusion of evidence of their out-of-pocket

expenses       in    proving         damages.          Because    we    find       no   reversible

error, we affirm.

                                                   3
                                          I

      In the Employment Contract, the Donnerts agreed to perform,

for   a   fixed    duration,     a    “horse    riding     act    with   juggling    &

acrobatics” and a “comedy horse riding act,” subject to Feld

Entertainment’s         supervision,    direction,       and     control.     In    the

Lease, the Donnerts leased to Feld Entertainment four trained

horses and related equipment for use in their circus acts.

      In Paragraph 7(c) of the Lease, which formed the basis of

the   dispute      in   this   case,   the     Donnerts    “acknowledge[d]         that

safety [was] of paramount concern to [Feld Entertainment] as it

relate[d]     to    animals,    the    public,     and   [Feld     Entertainment’s]

animal care and other staff,” and they promised to “take all

necessary steps to ensure such level of safety.”                           Also, Feld

Entertainment agreed to “work with [the Donnerts] to facilitate

compliance” with those safety obligations.

      The   contracts      provided     for    a   brief   probationary       period,

after     which    Feld   Entertainment       could   terminate      the    contracts

only if the Donnerts “fail[ed] to perform in a first class,

professional        manner,    [or]     disrupt[ed]        or     impede[d]     [Feld

Entertainment’s] creative and production value and direction of

the Production in any way either through action or failure to

comply with [Feld Entertainment’s] instructions.”

      After the Donnerts began training and rehearsing with the

circus, Feld Entertainment modified the order of performances so

                                          4
that the Donnerts’ comedy act would immediately follow a tiger

act.     The Donnerts feared that the tigers’ strong smell and the

substantial       noise    associated       with   dismantling       the   tiger    cage

would cause their horse, Cornbread, to become scared and run

off, potentially injuring himself, a performer, or a patron.

They believed that their concerns were vindicated when Cornbread

began having difficulties performing the comedy act and when the

horse         stepped      on      David        Donnert’s       leg        during      a

rehearsal.          In     January     2011,       Robert     Donnert      sent     Feld

Entertainment an email informing it that “[w]ith the show order

the way it is now it is not safe for my comedy horses.”                             The

parties discussed the safety issue, and, after they failed to

reach     a     mutually        agreeable       solution,     Feld      Entertainment

terminated the contracts by a letter dated January 9, 2011.                         The

letter        invoked     Feld     Entertainment’s          unfettered      right    to

terminate the contracts during the probationary period.                             The

probationary period, however, had already expired.                         Recognizing

that fact, Feld Entertainment later insisted that it had cause

to terminate the contracts in any event because of the Donnerts’

refusal to perform their acts in the order directed.

       The Donnerts commenced this action again Feld Entertainment

for breach of contract and violation of the Florida Whistle-

Blower’s Act.       The district court dismissed the Whistle-Blower’s

Act claim pursuant to the Employment Contract’s choice-of-law

                                            5
provision, which specified that Virginia law would govern the

employment relationship.              Following a three-day trial, a jury

awarded        the    Donnerts     $114,400       on     their    breach-of-contract

claims.        In denying Feld Entertainment’s post-trial motion for

judgment as a matter of law or for a new trial, the district

court concluded that there was a legally sufficient evidentiary

basis for the jury to find that “the show’s new order presented

safety issues”; that Feld Entertainment “did not attempt in good

faith     to     work     with     plaintiffs      to     resolve       [those]     safety

issue[s]”;       and     consequently     that     Feld    Entertainment          breached

Paragraph       7(c)    of   the   Lease.        The    court    also    rejected     Feld

Entertainment’s claims of prejudice based on repeated remarks at

trial    by     the     Donnerts    and   their        counsel   regarding        excluded

evidence.

        From    the     final    judgment     entered      on    the     verdict,     Feld

Entertainment appealed, and the Donnerts cross-appealed.


                                            II

        Feld    Entertainment       maintains     initially       that    the     district

court erred in instructing the jury on the implied duty of good

faith and on the wrongful prevention of performance.                            The court

gave the following instructions on those subjects:

        Both parties to a contract have a duty of good faith
        and fair dealing to act as they promised. Such a duty
        of good faith and fair dealing is implied in every
        contract.    Each contracting party is entitled to

                                            6
     assume that the other party intends to perform the
     contract in good faith.    But the duty of good faith
     and fair dealing does not add any duties to the
     contract not already contained within the terms of the
     contract, nor does it change or subtract any duties
     from the contract. It is simply a duty to act in good
     faith according to the terms of the contract.

                                 *    *      *

     A party to a contract who prevents the other party
     from performing his obligations under a contract has
     breached the contract.  But a party does not breach
     the contract if the party exercises a right it has
     under the contract.

     It   is     beyond    argument   that       the   court’s   instructions

accurately stated the law in Virginia.                 See Keiler v. Valley

Proteins, Inc., No. 88858, 1989 WL 646549, at *2 (Va. Cir. Ct.

June 15, 1989) (holding that a duty of good faith is implied in

employment contracts of definite duration); Ward’s Equip., Inc.

v. New Holland N. Am., Inc., 493 S.E.2d 516, 520 (Va. 1997)

(holding that the implied duty of good faith “cannot be the

vehicle for rewriting an unambiguous contract in order to create

duties    that    do     not   otherwise   exist”);      Whitt   v.   Godwin,

139 S.E.2d 841, 844 (Va. 1965) (holding that a contracting party

who wrongfully prevents another party’s performance has breached

the contract).         Nonetheless, Feld Entertainment argues that the

instructions should not have been given at all because the legal

principles have no application to the facts of this case.              We do

not agree.



                                      7
       At trial, the Donnerts argued that by reordering the show

in a manner that was unsafe, Feld Entertainment induced them

either   to     breach    their       duty   to    perform       the      comedy       act   as

directed by Feld Entertainment or to breach their duty under

Paragraph 7(c) of the Lease to “take all necessary steps” to

ensure   that     their       acts    were   safe.          They      argued     that    Feld

Entertainment’s conduct in reorganizing the show was wrongful

because its exclusive right to control the sequence of the show

was    restricted        by    Paragraph         7(c),        which       obligated      Feld

Entertainment to work with the Donnerts to facilitate compliance

with     their     safety        obligations,          as       well       as     by     Feld

Entertainment’s     freestanding           duty,    implicit         in   the    Employment

Contract, to work with the Donnerts in good faith to ensure a

safe performance.         Although Feld Entertainment takes issue with

the    Donnerts’         interpretation           of     Paragraph          7(c),       their

interpretation is at least plausible, entitling them to have the

meaning of the provision submitted to the jury for resolution.

See Foreign Mission Bd. of the S. Baptist Convention v. Wade,

409 S.E.2d 144, 146 (Va. 1991).                  And because the challenged jury

instructions      were    directly         relevant      to    the     Donnerts’       viable

theories   of    liability,          the   district      court     did     not   abuse       its

discretion in giving them.

       Feld Entertainment next contends that the district court

should have granted its renewed post-trial motion for judgment

                                             8
as    a    matter      of   law      pursuant         to    Federal        Rule    of    Civil

Procedure 50(b) because the evidence demonstrated that it had

cause      to   terminate      the   Donnerts         for     refusing      to    perform    as

directed. ∗      Viewing the evidence in the light most favorable to

the       Donnerts,     however,       there          was     a     legally       sufficient

evidentiary       basis     for      the    jury       to     conclude      (1) that       Feld

Entertainment breached Paragraph 7(c) and/or the implied duty of

good faith by reordering the show in a manner that was unsafe

and     subsequently        failing        to       address    the     Donnerts’        safety

concerns,        and   (2) that,       through          its       breach,    it     made     it

impossible for the Donnerts to meet all of their contractual

obligations.

        Feld Entertainment also argues that it should have been

entitled to judgment as a matter of law because the Donnerts

failed     to    present    sufficient          evidence      of    their    damages.        In

presenting evidence of damages, the Donnerts proved the maximum

weekly     pay    to   which    they   were         entitled       under    the   Employment

Contract and the Lease, the number of weeks remaining in the

agreements at the time they were terminated, and the amount of

income that they secured by other employment, thus mitigating

damages.        In finding damages, the jury apparently multiplied the

      ∗
       Feld Entertainment also challenges the denial of its
motion for summary judgment on similar grounds.     However, that
denial is not appealable after trial.        Bunn v. Oldendorff
Carriers GmbH & Co. KG, 723 F.3d 454, 460 n.3 (4th Cir. 2013).


                                                9
maximum      weekly       pay     by     the     number       of    weeks        remaining         and

subtracted the Donnerts’ other income.                             Noting that the weekly

pay to which the Donnerts were entitled varied according to the

number     of      performances          scheduled      in     a     given       week      and    the

percentage         of     those        performances          in     which        the       Donnerts

participated, Feld Entertainment maintains that this method of

calculating         damages        was       insufficient          because       the       Donnerts

presented no evidence at trial as to how many of the weeks

remaining       were     full    performance          weeks.         But    in    a     breach-of-

contract claim, a plaintiff need not prove damages with exact

precision; reasonable certainty is sufficient.                                See, e.g., Isle

of   Wight      Cnty.     v.    Nogiec,        704    S.E.2d       83,   85-86      (Va.      2011);

Agostini      v.    Consolvo,          153     S.E.    676,       680    (Va.     1930).          The

Donnerts’ method of proving damages resulted in a reasonable

estimate      of    what       they    would     have       been     paid     but       for      their

termination.           Therefore, the district court properly denied the

Donnerts’ renewed motion for judgment as a matter of law.

      Finally, Feld Entertainment argues that the jury’s verdict

should have been vacated and a new trial granted under Federal

Rule of Civil Procedure 59(a) because the Donnerts and their

counsel      made       repeated      references       at     trial      to     two     pieces      of

evidence        that     the    district        court       had     excluded          --   namely,

irrelevant evidence that another one of the Donnerts’ horses had

slipped and suffered injuries while performing a different act

                                                 10
with a different Ringling Bros. circus unit, and inadmissible

hearsay evidence of a veterinarian’s discharge report pertaining

to injuries suffered by Cornbread.                In denying the motion, the

district court found that the statements did not constitute a

clear miscarriage of justice sufficient to warrant a new trial

because “on those occasions that defendant objected to these

remarks, the objection was sustained and plaintiffs’ statements

were   stricken.”       Because      the   trial       judge   was    in    the   best

position     to   assess     the    prejudice      caused      by    the    Donnerts’

remarks, we cannot conclude that the district court abused its

discretion in denying Feld Entertainment’s motion.                         See Konkel

v. Bob Evans Farms Inc., 165 F.3d 275, 280 (4th Cir. 1999)

(holding that a trial judge is entitled to “the benefit of every

doubt” on review of the denial of a Rule 59(a) motion (quoting

Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 438–39

(1996))); Poynter ex rel. Poynter v. Ratcliff, 874 F.2d 219, 223

(4th Cir. 1989) (stating that the denial of a Rule 59(a) motion

“is not reviewable save in the most exceptional circumstances”).


                                       III

       With respect to their cross-appeal, the Donnerts contend

that   the   district      court   erred     in   relying      on   the    Employment

Contract’s    choice-of-law        provision      --   which    states     that   “all

claims and disputes relating” to “the employment relationship”


                                        11
are to be “governed by the laws of the Commonwealth of Virginia”

-- to dismiss their claim under the Florida Whistle-Blower’s

Act.    They argue that because the provision does not expressly

exclude      Virginia’s         choice-of-law      rules,       those      rules    are

incorporated into the Employment Contract.                  And under Virginia’s

choice-of-law rules, which call for the application of the law

of the lex loci delicti (“the place of the wrong”) to tort

claims, see Jones v. R.S. Jones & Assocs., Inc., 431 S.E.2d 33,

34 (Va. 1993), the Donnerts argue that Florida law should govern

their      retaliatory-discharge         claim,    given    that     the      Donnerts’

contracts were terminated in Florida.

       “In the absence of a contrary indication of intention,”

however, “the reference [in a choice-of-law provision] is to the

local law of the state of the chosen law,” which excludes a

state’s choice-of-law rules.              Restatement (Second) of Conflict

of Laws §§ 4, 187(3); see also, e.g., Chan v. Soc’y Expeditions,

Inc.,      123   F.3d    1287,    1297   (9th     Cir.    1997).        Because    the

Employment         Contract’s      choice-of-law         provision       calls      for

application of Virginia local law to “all claims and disputes

relating” to “the employment relationship,” Virginia law applies

to   the     Donnerts’     retaliatory-discharge          claim.        Cf.     Hitachi

Credit Am. Corp. v. Signet Bank, 166 F.3d 614, 628 (4th Cir.

1999)     (holding      under    Virginia      choice-of-law      principles       that

Virginia     law    governed     the   plaintiff’s       tort   claim,     where    the

                                          12
employment       contract      specified         that    Virginia        substantive       law

governed     interpretation           of   the    contract    and       all    “rights     and

obligations of the parties”).

     The         Donnerts         argue           alternatively,              relying       on

section 187(2)(b)         of    the    Restatement        (Second)       of    Conflict     of

Laws,    that    applying       Virginia     substantive          law    would    offend     a

fundamental public policy of Florida by effectuating a waiver of

their statutory right to sue their former employer for unlawful

retaliation       and    consequently        that       Florida    law     should       apply.

Conceding       that    Virginia      law    also      prohibits    an     employer       from

“discharg[ing] . . . an employee because the employee has filed

a safety or health complaint,” Va. Code Ann. § 40.1-51.2:1, the

Donnerts argue nonetheless that § 40.1-51.2:1 does not protect

them because they were terminated in Florida and, as they argue,

that provision does not apply extraterritorially.                                Virginia’s

Administrative         Code,    however,         expressly    provides         that     “[a]ll

Virginia     statutes,         standards,        and    regulations        pertaining      to

occupational safety and health shall apply to every employer,

employee     and       place    of     employment        in   the        Commonwealth      of

Virginia,” with several exceptions not applicable here.                               16 Va.

Admin.    Code     25-60-20.          Feld   Entertainment          is    undoubtedly       an

“employer . . . in the Commonwealth of Virginia.”                              Indeed, the

Employment Contract states that there is no other jurisdiction

in   which      Feld    Entertainment         maintains       significant         permanent

                                             13
contacts.         Therefore, Va. Code Ann. § 40.1-51.2:1 would have

applied to Feld Entertainment’s allegedly retaliatory personnel

action.      And while the Donnerts note that Virginia law is less

protective of whistleblowers than Florida law, “[t]he forum will

not refrain from applying the chosen law merely because this

would lead to a different result.”               See Restatement (Second) of

Conflict of Laws § 187(2) cmt. g.                 The district court did not

err   in    dismissing     the     Donnerts’    Florida    Whistle-Blower’s    Act

claim pursuant to the Employment Contract’s Virginia choice-of-

law provision.

       The Donnerts also contend on appeal that the district court

erred in preventing them, as a discovery sanction, from proving

$121,860 of out-of-pocket damages.                During the discovery phase

of the litigation, in response to an interrogatory asking them

to itemize the nature and amount of each of their claims for

damages and to produce documents evincing those damages, the

Donnerts identified 14 categories of out-of-pocket damages that

they intended to prove at trial apart from the loss of future

pay under the Employment Contract and the Lease.                   When, however,

the Donnerts failed to produce documents evincing that they had

actually     incurred      these    damages,    Feld     Entertainment    filed   a

motion to compel their production.                At a hearing on the motion

on    May   23,    2013,   the     magistrate    judge    warned   the   Donnerts’

counsel as follows:

                                         14
      [The documents] are overdue.       It’s your clients’
      lawsuit. . . . [T]here comes a time at which documents
      have to be produced or else you can’t rely on them.
      So I am going to set that time at 5:00 o’clock [on May
      28], and your clients are not going to be able to
      claim damages for any out-of-pocket expenses for a
      veterinary   bill   or   anything   else  that   [Feld
      Entertainment’s counsel doesn’t] have in [her] hands
      by close of business [on May 28].

After the Donnerts failed to produce any documents relating to

out-of-pocket expenses by May 28, Feld Entertainment filed a

motion to      strike   all   claims    for   out-of-pocket     expenses     as    a

sanction under Federal Rule of Civil Procedure 37(b)(2)(A).                       At

a hearing, the magistrate judge noted that his May 23 ruling

“[took] care of most, if not all,” of the sanctions request.

When, on the eve of trial, Feld Entertainment learned that the

Donnerts planned to offer oral evidence of their out-of-pocket

damages, it filed a motion in limine with the district court to

exclude all testimony and documents relating to those damages.

The   district     court      granted   the    motion,      finding   that    the

magistrate judge’s May 23 oral ruling prohibited the Donnerts

from claiming at trial any damages for which documentation was

not produced by May 28.

      The Donnerts contend on appeal that the magistrate judge

had   merely     ordered      that   they     could   not    offer    at     trial

documentary evidence of their out-of-pocket damages that they

did not produce by May 28, and they argue that the district

court erroneously converted this document-exclusion order into

                                        15
an   issue-preclusion       order.          We    conclude,       however,    that    the

district    court    did    not     err     in    its    characterization       of    the

magistrate      judge’s    order.         The    magistrate       judge    specifically

warned    the    Donnerts    that       they     would   not   “be    able    to   claim

damages for any out-of-pocket expenses for a veterinary bill or

anything else that [Feld Entertainment’s counsel did not] have

in [her] hands by close of business [on May 28].”                             (Emphasis

added).      Moreover,      it    would     have    been    unfair    to     permit   the

Donnerts    to    testify    to     their       out-of-pocket      expenses     without

providing any receipts or other documentation to substantiate

their estimates.      And the record reflects that the Donnerts were

consistently       dilatory       in      complying        with     their     discovery

obligations.      Thus, we conclude that the district court did not

abuse its discretion in granting Feld Entertainment’s motion in

limine.

                                    *       *       *

      For   the    reasons       given,     we    affirm    the    judgment     of    the

district court.

                                                                               AFFIRMED




                                            16
