                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 09-1725
                                     ___________

Gregory M. Cole; Cole's Tractor      *
& Equipment, Inc.,                   *
                                     *
            Appellants,              * Appeal from the United States
                                     * District Court for the
     v.                              * Western District of Missouri.
                                     *
Homier Distributing Company, Inc.,   *
                                     *
            Appellee.                *
                                ___________

                               Submitted: December 16, 2009
                                  Filed: March 29, 2010
                                   ___________

Before WOLLMAN, RILEY, and MELLOY, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

        This appeal involves claims arising out of the dissolution of agreements
between Appellants and Appellee. At the district court, Appellants asserted two
breach-of-contract claims, as well as claims for violation of the Missouri Franchise
Act, Mo. Rev. Stat. § 407.405, tortious interference with contracts and business
expectancies, and fraud. The district court granted Appellee's motion to dismiss the
latter two counts for failure to state a claim. After discovery, the district court granted
Appellee's motion for summary judgment on the remaining counts because Appellants
were unable to prove damages. For the following reasons, we affirm in part and
reverse in part.
                                    I. Background

       Gregory Cole is the sole owner of Cole's Tractor & Equipment, Inc., a closely
held Missouri corporation dealing in the sale, distribution, and repair of tractors and
other equipment.1 Homier Distributing Company, Inc. is an Indiana corporation that,
among other things, sells and distributes Farm Pro tractors and other equipment. In
December 2002, Cole entered into an oral agreement with Homier under which Cole
became a distributor and dealer of the Farm Pro tractor line. According to the
complaint, Cole "agreed to establish dealerships throughout Missouri for the resale of
[Farm Pro] tractors and related products, and to also resell [Farm Pro] tractors and
related products to retail customers." The agreement permitted Cole to establish
dealerships in other states, so long as Homier approved them. In return, Homier
agreed that Cole would be the exclusive Missouri distributor of Farm Pro tractors.

      As a result of the oral agreement, Cole established more than thirty dealerships
in Missouri between December 2002 and September 2004. During this time, a
number of Cole's Missouri dealerships resold Farm Pro tractors and related equipment
on the internet through electronic auction websites. In July 2004, however, Homier
sent out a memorandum announcing a new policy forbidding dealers from selling
Farm Pro products on electronic auction websites. The policy did not explicitly
prohibit such sales by Homier itself. Cole alleges, however, that subsequent written




      1
       Prior to the time of incorporation, February 9, 2004, when Gregory Cole
transferred all his rights and assets to Cole's Tractor & Equipment, Inc., he operated
his business as a sole proprietorship. We refer to Appellants collectively as "Cole"
unless otherwise noted. To the extent that claims arise out of events taking place after
the formation of Cole's Tractor & Equipment, Inc., it is the corporation, not Gregory
Cole, that has standing to sue. See Potthoff v. Morin, 245 F.3d 710, 716 (8th Cir.
2001).

                                          -2-
agreements, as discussed below, prohibited Homier from making direct-to-public
internet-auction sales and that Homier breached these agreements.

       On September 20, 2004, the parties memorialized their oral agreement in two
written documents: the Distributorship Agreement and the Distributor Caged Tractor2
Purchase Agreement (the "Purchase Agreement"). Under the terms of the
Distributorship Agreement, Homier agreed not to "supply or distribute any whole
goods to the dealers of Cole's Tractor & Equipments, Inc." The Distributorship
Agreement also maintained Cole's right as the exclusive distributor of "whole goods"
in Missouri. The Distributorship Agreement defined "whole goods" as "tractors,
recreational vehicles, and larger motor driven shop related equipment." It also
provided that either party could terminate the agreement, for cause, so long as that
party gave ninety days' notice. The Purchase Agreement allowed Cole to purchase,
assemble, and sell caged tractors. It also required Cole to "keep a readily available
shelf stock of parts," and if parts were not available from Homier, to get permission
from Homier before purchasing parts elsewhere.

      By June 2007, Cole's and Homier's sales had declined rapidly. Cole had
originally established thirty-eight Farm Pro Dealerships, but only twenty-four of those
dealerships remained in operation as of June 2007. Cole alleges that this decline was
due to Homier's failure to provide tractors (both assembled and unassembled),
implements, repair parts, and other equipment. Cole also attributes the decline to
Homier's price increase on Farm Pro tractors and equipment. On June 15, 2007,
Homier sent Cole a letter giving notice of its intent to terminate the Distributorship
Agreement within ninety days. The letter cited as the reason for termination Cole's
declining sales performance and failure to develop its territory for Farm Pro tractors.
The letter noted, however, that the termination did not affect Cole's ability to act as


      2
      "Caged" or "Crated" tractors are tractors that arrived at the distributorship
unassembled.

                                         -3-
a Farm Pro dealer. Cole alleges that before and during the ninety-day notice period,
Homier contacted Cole's dealerships for marketing purposes and made sales of parts,
products, implements, and tractors directly to those dealerships.

       In July 2007, Cole filed an action against Homier in Missouri state court,
alleging breach of contract (Counts I and II), tortious interference with contracts and
business expectancies (Count III), fraud (Count IV), and constructive termination of
the Distributorship Agreement without ninety days notice, in violation of Mo. Rev.
Stat. § 407.405 (Count V). Homier removed the case to federal court based on
diversity of citizenship. See 28 U.S.C. § 1332. The district court then granted
Homier's motion to dismiss Counts III and IV for failure to state a claim upon which
relief could be granted.

       Discovery closed December 31, 2008, and on January 20, 2009, Homier filed
a Daubert3 motion to exclude the expert report of Dr. Bart Basi, Cole's damages
expert. Homier also moved for summary judgment based, in part, on Cole's inability
to prove damages. The district court granted Homier's Daubert motion, and upon
determining that Cole could not otherwise prove damages, granted Homier's motion
for summary judgment on Counts I and II. It also dismissed Count V, finding that
there was no proof of sales made during the relevant time period. Finally, the district
court denied Cole's motion to strike exhibits attached to Homier's reply memoranda
and alternative motion for leave to respond to those exhibits. The district court found
that the motions were either moot as a result of its decision or otherwise ill-founded.
Cole appeals each of these rulings.




      3
       Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

                                         -4-
                                II. Motion to Dismiss

       We begin by addressing Cole's argument that the district court erred in
dismissing its claims for tortious interference and fraud. "We review the district
court's grant of a motion to dismiss de novo." Anderson-Tully Co. v. McDaniel, 571
F.3d 760, 762 (8th Cir. 2009). Because this is a diversity case, we apply federal
procedural rules and Missouri substantive law. Ashley County, Ark. v. Pfizer, Inc.,
552 F.3d 659, 665 (8th Cir. 2009). To survive a motion to dismiss, a claim must be
facially plausible, meaning that the "factual content . . . allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1949 (2009). When determining whether a claim is facially
plausible, we "accept the allegations contained in the complaint as true and draw all
reasonable inferences in favor of the nonmoving party." Coons v. Mineta, 410 F.3d
1036, 1039 (8th Cir. 2005). Where we can infer from those factual allegations no
more than a "mere possibility of misconduct," the complaint must be dismissed. Iqbal,
129 S. Ct. at 1950.

                         A. Tortious Interference (Count III)

        Count III of Cole's complaint alleges a claim for tortious interference with
contracts and business expectancies. Under Missouri law, a tortious interference
claim requires that a plaintiff prove: "'(1) a contract or a valid business expectancy;
(2) defendant's knowledge of the contract or relationship; (3) intentional interference
by the defendant inducing or causing a breach of contract or relationship; (4) absence
of justification; and (5) damages resulting from defendant's conduct.'" Horizon Mem'l
Group, LLC v. Bailey, 280 S.W.3d 657, 662 (Mo. Ct. App. 2009) (citation omitted).
Cole claims that Homier tortiously interfered with Cole's dealer relationships by
selling directly to Cole's dealers in violation of the Distributor Agreement. The
district court dismissed this claim, finding that because the dealership agreements



                                          -5-
were not preexisting, but arose out of the agreements with Homier, Cole could not
state a claim for tortious interference. We agree.

       Under Missouri law, a plaintiff need not have an existing contract with a third
party to maintain a claim for tortious interference. Stehno v. Sprint Spectrum, L.P.,
186 S.W.3d 247, 251 (Mo. 2006). It is sufficient that a plaintiff have "a probable
future business relationship that gives rise to a reasonable expectancy of financial
benefit." Id. However,"when a contract alone creates a business expectancy, [a]
plaintiff cannot bring a claim for interference with a business expectancy against a
party to that contract." BMK Corp. v. Clayton Corp., 226 S.W.3d 179, 191 (Mo. Ct.
App. 2007); see also Kelly v. State Farm Mut. Auto. Ins. Co., 218 S.W.3d 517, 525
(Mo. Ct. App. 2007); Jurisprudence Wireless Commc'ns, Inc. v. CyberTel Corp., 26
S.W.3d 300, 302 (Mo. Ct. App. 2000). This rule does not mean that "a party may not
have a valid business expectancy in a preexisting and independent business
relationship just because the preexisting relationship relies upon a third-party supply
contract to furnish the subject of their agreement." BMK, 226 S.W.3d at 191. The
critical issue in this case, then, is whether Cole had independent business relationships
with its dealers predating its agreement with Homier. The complaint demonstrates
that Cole had no such relationships.

        There are two relevant sets of agreements: the Cole–Homier Distributorship
Agreement, under which Cole became a licensed Farm Pro distributor, and the
Cole–dealership agreements, under which Cole distributed Farm Pro products to its
dealerships. The Cole–dealership agreements are the agreements with which Cole
alleges Homier interfered. But Cole had no business relationship with the dealerships
prior to the Distributorship Agreement. Cole's relationship with its dealers arose only
because it entered into the Distributorship Agreement with Homier. As Cole stated
in its complaint, Cole did not begin to establish these dealerships until after it became
a licensed Farm Pro distributor. Cole has thus failed to articulate any independent



                                          -6-
business relationship with its dealers that predated its agreement with Homier.
Without this, we must dismiss Cole's claim for tortious interference.

       Cole's reliance on American Business Interiors, Inc. v. Haworth, Inc., 798 F.2d
1135 (8th Cir. 1986) and BMK does not persuade us to the contrary. Cole argues that
these cases, both of which permitted claims for tortious interference, are materially
indistinguishable from the facts of the instant case. In both cases, however, the
plaintiff had a legitimate expectancy arising out of a prior business relationship. See
Am. Bus. Interiors, 798 F.2d at 1143–44 (noting plaintiff's "extensive prior dealings");
BMK, 226 S.W.3d at 190–192 (noting that plaintiff had a preexisting business
relationship "wholly separate" from its relationship with the defendant). Therefore,
American Business and BMK are not supportive of Cole's position, and we affirm the
district court.

                                  B. Fraud (Count IV)

        Count IV of Cole's complaint alleges fraud. To succeed in a fraud claim under
Missouri law, a plaintiff must prove: (1) a defendant made a material representation;
(2) with knowledge of its falsity; (3) with intent that plaintiff rely on that
representation; (4) that the plaintiff was ignorant of the falsity; (5) that the plaintiff
justifiably relied upon the representation; and (6) that plaintiff was damaged by that
representation. See Ryann Spencer Group, Inc. v. Assurance Co. of Am., 275 S.W.3d
284, 287 (Mo. Ct. App. 2008). Cole alleges that, upon entering into the oral
agreement with Homier, Homier represented that it would provide Cole with an
exclusive distributorship in Missouri if Cole would establish dealerships in Missouri
and surrounding states. Cole alleges that, at the time Homier made this representation,
Homier's true intention was to induce Cole to establish a dealership network and then,
once this had been accomplished, bypass the distributor relationship with Cole and
deal directly with the newly established dealerships. It is undisputed that Homier has
eliminated the distributor relationship and now deals directly with the dealerships.

                                           -7-
However, the issue below and now on appeal is whether, at the time of the oral
agreement, Homier intended not to perform consistently with its statements.
"[A]bsent such an inconsistent intent there is no misrepresentation of fact or state of
mind but only a breach of promise or failure to perform." Craft v. Metromedia, Inc.,
766 F.2d 1205, 1219 (8th Cir. 1985) (applying Missouri law). The district court found
that Cole failed to sufficiently allege that Homier intended not to perform the contract
at the time of its formation. For this reason, the district court dismissed Cole's fraud
claim.

       On appeal, Cole alleges that Homier manifested an intent not to perform at the
time of the agreement by: (1) preferring oral agreements; (2) failing to provide
sufficient repair and replacement parts in breach of an implicit promise in the oral
agreement; (3) giving inconsistent grounds for terminating the Distributorship
Agreement; and (4) contacting Cole's dealerships prior to terminating the
Distributorship Agreement. We find that these allegations do not provide grounds to
infer an intent to defraud at the time of formation.

        We begin with the first two allegations. The complaint indicates that, although
Homier may have desired to maintain oral agreements, it did in fact memorialize the
oral agreement with Cole after performing under that agreement for nearly two years.
Further, the complaint does not allege that the oral agreement4 contained any
promise—implicit or otherwise—to provide replacement parts. Even if it did, the
complaint alleges that this failure began after September 20, 2004, nearly two years
after the parties entered into the oral agreement. We recognize that, pursuant to Cole's
allegations, the fact that Homier performed under the agreement for two years is not
necessarily inconsistent with Cole's theory. Under Cole's theory, it would seem

      4
       We note that Cole does allege that there was an agreement implicit in the
written contract that Homier would maintain sufficient replacement parts. Cole
alleges, however, that the oral agreement is the agreement from which the fraudulent
misrepresentation in this case arose.

                                          -8-
necessary for Homier to perform—at least for some period of time—in order for Cole
to take the steps necessary to establish dealerships. Thus, we do not foreclose a fraud
claim merely because the party alleged to have perpetrated the fraud performed under
the contract for some period of time. In this case, however, Cole's allegations, without
more, are just as consistent with a present intent to perform as they are with fraud.
Such allegations are not enough to transform a breach-of-contract claim into a fraud
claim. See Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d
1052, 1064 (8th Cir. 2005) (citing Blanke v. Hendrickson, 944 S.W.2d 943, 944 (Mo.
Ct. App. 1997)).

       Cole's third allegation states that Homier's inconsistent grounds for terminating
the Distributorship Agreement create an inference of Homier's intent to defraud at the
time of the agreement. Cole claims that, although Homier cited Cole's poor
performance in the termination letter as the reason for terminating the Distributorship
Agreement, Cole was in fact Homier's best distributor and Homier itself was also
suffering losses. But neither the complaint nor any documents attached to or
referenced in the complaint support this argument. See Great Plains Trust Co. v.
Union Pac. R.R. Co., 492 F.3d 986, 990 (8th Cir. 2007) (stating that on a motion to
dismiss, "we may consider documents attached to the complaint and matters of public
and administrative record referenced in the complaint."). The alleged inconsistency
stems from deposition testimony and acknowledgments by Homier that are not part
of the documents we are permitted to consider in ruling on a motion to dismiss.
Accordingly, Cole cannot overcome a motion to dismiss on this ground. Even if we
were to consider these outside documents, the explanation that Homier provided in its
termination letter simply is not inconsistent with the allegations that Cole now puts
forth on appeal.

      Finally, the allegation that Homier breached the agreement by contacting
dealerships prior to and during the notice period does not demonstrate an intent to
defraud at the time the parties entered into the agreement. Missouri courts have stated

                                          -9-
on numerous occasions that the necessary intent cannot be established merely by
pointing to the defendant's subsequent breach. See, e.g., Emerick v. Mut. Benefit Life
Ins. Co., 756 S.W.2d 513, 519–20 (Mo. 1988); Softka v. Thal, 662 S.W.2d 502, 507
(Mo. 1983); Dillard v. Earnhart, 457 S.W.2d 666, 671 (Mo. 1970). Cole's allegations
do no more than suggest that Homier, for one reason or another, changed its mind as
to how it wished to deal with distributors. This, as a matter of law, is insufficient to
state a claim for fraud. See Craft, 766 F.2d at 1221; see also Restatement (First) of
Torts § 530 cmt. a (1938) ("[O]ne who acts in justifiable reliance upon another's
honest statement of his then existing intention cannot maintain an action for the loss
caused by the disappointment of his expectations if the other for any reason, good or
bad, changes his mind and fails" to perform.).

       Having considered Cole's allegations in the light most favorable to Cole, and
drawing all reasonable inferences in Cole's favor, we find that Cole has failed to allege
facts that plausibly could suggest Homier intended not to perform at the time of the
oral agreement.

                               III. Summary Judgment

       We next address Cole's claim that the district court erred in granting summary
judgment on Counts I, II, and V. We review the district court's grant of summary
judgment de novo. Reynolds v. RehabCare Group East, Inc., 591 F.3d 1030, 1032
(8th Cir. 2010). "Summary judgment is appropriate when the record, viewed in the
light most favorable to the non-moving party, demonstrates that there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law."
Myers v. Lutsen Mtns. Corp., 587 F.3d 891, 893 (8th Cir. 2009). If a nonmoving
party has failed to establish the existence of an element of that party's claim, summary
judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).




                                          -10-
       Here, the district court excluded Cole's proffered damages expert, Dr. Basi, who
planned to testify as to Cole's lost-profit damages. It further held that Cole had no
alternative means of proving damages, finding that Cole's affidavits on damages,
submitted after Homier moved to exclude Dr. Basi's testimony, contradicted Cole's
representation throughout discovery that it was relying on Dr. Basi to prove damages.
Accordingly, the district court granted summary judgment on Counts I and II. It also
granted summary judgment on Count V, finding that Cole's statements regarding sales
of whole goods without ninety days' notice were without evidentiary support and
therefore insufficient to create a question of material fact. Cole appeals each of these
rulings.

                         A. Counts I and II (Contract Claims)

       Under Missouri law, a plaintiff in a contract action generally has the burden of
proving "the existence and amount of . . . damages with reasonable certainty." Ullrich
v. CADCO, Inc., 244 S.W.3d 772, 779 (Mo. Ct. App. 2008). When a claim involves
lost-profit damages, it is enough that a plaintiff "provide[] an adequate basis for
estimating lost profits with reasonable certainty." Ameristar Jet Charter, Inc. v.
Dodson Int'l Parts, Inc., 155 S.W.3d 50, 54 (Mo. 2005) (emphasis added). The failure
to meet this burden properly results in summary judgment. See Celotex, 477 U.S. at
322; see also Manor Square, Inc. v. Heartthrob of Kansas City, Inc., 854 S.W.2d 38,
45 (Mo. App. 1993) (granting summary judgment for failure to put forth sufficient
evidence to calculate damages with "reasonable certainty"). We begin by addressing
Dr. Basi's report and then proceed to consider whether, in the alternative, Cole can
prove damages without Dr. Basi's report.

                             1. Dr. Basi's Damages Report

       "Expert testimony is admissible if it is reliable and will help the jury understand
the evidence or decide a fact in issue." Hartley v. Dillard's, Inc., 310 F.3d 1054, 1060

                                          -11-
(8th Cir. 2002); see also Fed. R. Evid. 702. Although the factual basis of an expert's
opinion is generally an issue of credibility rather than admissibility, an expert's
opinion should be excluded if it "'is so fundamentally unsupported that it can offer no
assistance to the jury.'" Bonner v. ISP Techs., Inc., 259 F.3d 924, 929–30 (8th Cir.
2001) (quoting Hose v. Chicago N.W. Transp. Co., 70 F.3d 968, 974 (8th Cir. 1996)).

       The district court found Dr. Basi's testimony inadmissible because his report
relied on incorrect factual premises and contained speculative calculations. "A district
court enjoys wide discretion in ruling on the admissibility of proffered evidence, and
evidentiary rulings should only be overturned if there was a clear and prejudicial
abuse of discretion." US Salt, Inc. v. Broken Arrow, Inc., 563 F.3d 687, 689–90 (8th
Cir. 2009) (internal quotations and citations omitted). Upon review, we hold that the
district court did not abuse its discretion in finding that Dr. Basi's report was flawed
both factually and methodologically.

        To begin, Dr. Basi's report is factually flawed, rendering it of little to no
assistance to the jury. See Bonner, 259 F.3d at 929–30. Principally, Dr. Basi assumed
that Cole lost its ability to make sales of Farm Pro equipment when Homier terminated
the Distributorship Agreement. Thus, when calculating Cole's damages, Dr. Basi
categorized as "lost" Cole's profits as both a distributor and a dealer. The termination
letter, however, explicitly stated that it did "not apply to [Cole's] status as a dealer of
Homier Farm Pro product lines. Homier would still encourage you to be an
authorized Farm Pro dealer." Further, the record indicates that Cole recognized that
its status as an authorized Farm Pro dealer had not been terminated. Also, Cole had
Farm Pro tractors in stock available for sale, and Homier did not prevent Cole from
purchasing tractors from Homier in a dealership capacity.5 Dr. Basi's report indicates

      5
         Cole argues on appeal that there was no separate dealership agreement. But
this is of no import to our decision and we need not decide the issue. Regardless of
whether there was a separate agreement, the record illustrates that Cole was permitted
to sell Farm Pro tractors and had Farm Pro tractors in stock available for sale. Dr.

                                           -12-
that he was either unaware of or disregarded these facts. Thus, his lost-profit analysis
takes into account income stemming from Cole's ability to sell Farm Pro in a dealer
capacity, which could not have been lost as a result of Homier's termination of the
Distributorship Agreement.

       Cole criticizes the district court's order for focusing on factual errors in Dr.
Basi's opinion, rather than on whether it was based upon valid accounting methods.
Cole argues that these are questions for a jury, going to credibility or weight rather
than admissibility. But where, as here, the expert's analysis is unsupported by the
record, exclusion of that analysis is proper, as it can offer no assistance to the jury.

       Alternatively, the district court properly excluded Dr. Basi's report because his
report failed to rise above the level of speculation. The district court found that Dr.
Basi's report was speculative because, among other things, the report used a twenty-
five year computation period based on Gregory Cole's retirement age and qualification
for government benefits. In reaching this conclusion, the district court cited our
decision in Structual Polymer Group, Ltd. v. Zoltek Corp., 543 F.3d 987 (8th Cir.
2008), in which we stated, "Under Missouri law, '[l]ost profits related to a breach
preventing performance are recoverable provided the loss is . . . ascertainable with
reasonable certainty, is not speculative or conjectural, and was within the
contemplation of the parties when the contract was formed.'" Id. at 997 (quoting
Farmers' Elec. Coop., Inc. v. Mo. Dep't of Corr., 59 S.W.3d 520, 522 (Mo. 2001)).
The district court also cited our decision in Tipton v. Mill Creek Gravel, Inc., 373 F.3d
913 (8th Cir. 2004), in which we noted the "exacting" requirement for proof of lost-
profit damages under Missouri law. Id. at 918 (quoting Ozark Employment
Specialists, Inc. v. Beeman, 80 S.W.3d 882, 897 (Mo. Ct. App. 2002)); see also




Basi's failure to incorporate these facts into his analysis creates a fundamental
disconnect between the facts of the case and his report.

                                          -13-
Coonis v. Rogers, 429 S.W.2d 709, 714 (Mo. 1968) (noting the "stringent
requirements" for lost-profit damages).

       Cole argues that the standard applied by the district court was too demanding,
and that the Missouri Supreme Court has subsequently relaxed its requirements in
regard to lost-profit damages. We are not convinced that this is correct. As in earlier
cases, e.g., Coonis, 429 S.W.2d at 713–14, current Missouri cases, while not requiring
exact calculations, have maintained that the amount of lost-profit damages cannot rest
upon mere speculation, see Gateway Foam Insulators, Inc. v. Jokerst Paving &
Contracting, Inc., 279 S.W.3d 179, 185–86 (Mo. 2009); Wandersee v. BP Prods. N.
Am., Inc., 263 S.W.3d 623, 633–34 (Mo. 2008); Ameristar, 155 S.W.3d at 54–55.
Here, Dr. Basi's lost-profit forecast extends for twenty-five years—a figure that has
nothing to do with the continuation of Cole's contractual relationship with Homier.
The Distributorship Agreement expressly states that it "may be terminated, by either
party, for cause, giving at least 90 days written notice." The notion that performance
under this contract would continue for twenty-five years is too speculative for us to
find that the district court abused its discretion. See Meterlogic, Inc. v. KLT, Inc.,
368 F.3d 1017, 1019 (8th Cir. 2004) (finding exclusion of expert testimony warranted,
in part, because the expert "predicted financial results ten years into the future even
though the parties' contract extended only two years and allowed for termination at
any time.").

       We recognize that at least one court, applying Missouri law, has not been
troubled by such predictions. See Tri State HDWE, Inc. v. John Deere Co., 532 F.
Supp. 2d 1102, 1108–09 (W.D. Mo. 2007). However, given our highly deferential
standard of review, we cannot find that the district court erred by taking issue with Dr.
Basi's twenty-five year forecast in this case. For the same reason, the fact that the
agreement in this case requires cause for termination and extends indefinitely does not
alter our decision. There are simply too many future uncertainties for us to say that
the district court abused its discretion by excluding as overly speculative a twenty-five

                                          -14-
year forecast—based solely on age and ability to qualify for government
benefits—even if the Distributorship Agreement required cause for termination.

       We do not disagree with Cole that lost profits often defy exactitude and that "an
adequate basis for estimating lost profits with reasonable certainty" is sufficient. See
Wandersee, 263 S.W.3d at 633. However, in a spectrum ranging from speculation to
exactitude, Dr. Basi's report is too close to the former for us to find that the district
court abused its discretion. Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039,
1057 (8th Cir. 2000) ("Expert testimony that is speculative is not competent proof and
contributes 'nothing to a legally sufficient evidentiary basis.'") (quoting Weisgram v.
Marley Co., 528 U.S. 440, 454 (2000)). Accordingly, we affirm the district court's
decision to exclude Dr. Basi's report.

                            2. Other Damages Testimony

       Having decided that the district court did not abuse its discretion by excluding
Dr. Basi's testimony, we must address Cole's claim that it can prove damages though
other means. After Homier moved for summary judgment, Cole subsequently
submitted affidavits and deposition errata sheets in which it claimed to be able to
prove damages without Dr. Basi. The district court held that Cole was precluded from
using other evidence because this testimony was contrary to the position that Cole had
maintained throughout discovery in regard to its damages calculations. We review
this holding for abuse of discretion. Yates v. Rexton, Inc., 267 F.3d 793, 802 (8th Cir.
2001).

      Generally, a court should consider an affidavit submitted in response to a
motion for summary judgment when that affidavit elaborates upon or clarifies
information already submitted. Popoalii v. Corr. Med. Servs., 512 F.3d 488, 498 (8th
Cir. 2008). However, a party cannot avoid summary judgment by contradicting
previous sworn testimony. Id.; Webb v. Garelick Mfg. Co., 94 F.3d 484, 488 (8th Cir.
1996). "If testimony under oath . . . can be abandoned many months later by the filing
                                           -15-
of an affidavit, probably no cases would be appropriate for summary judgment."
Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365 (8th Cir. 1983).

       Cole first argues that its affidavits and deposition errata sheets are merely
clarifications and that they do not contradict its prior testimony. But the record
reveals otherwise. In both its response to Homier's interrogatories and at all
subsequent depositions, Cole maintained that it was relying on Dr. Basi to calculate
its damages and otherwise had no damages calculations. The subsequent claim that
it had made and was relying on damages calculations created without the aid of Dr.
Basi's expert report is plainly to the contrary. Second, Cole attempts to justify its
inability to provide damages calculations on the ground that the documents necessary
to prove those damages were not available until the close of discovery. The record
shows, however, that Homier made these documents available to Cole well before the
close of discovery; Cole simply failed to request to inspect the documents. A party's
own failure to examine available documents cannot justify a subsequent contradiction
of prior testimony.

       Finally, Cole notes on appeal that Homier's response to Cole's interrogatories
indicates sales of "$95,513.90 worth of tractors6 and parts to Plaintiffs' dealerships"
prior to notice of termination. Setting aside any question of whether there was
evidence that these were sales of whole goods, as prohibited by the Distributorship
Agreement, or whether this is contradictory to Cole's prior representations, Cole did
not plead contract damages arising out of sales that Homier allegedly made to
dealerships. In its contract claims, Cole alleged damages arising out of Homier's: (1)
termination of the agreements without good cause; (2) sale of whole goods directly
to the public within Missouri; (3) failure to provide tractors and other equipment in
sufficient volume to meet Cole's resale needs; and (4) failure to provide sufficient
repair parts to Cole for Cole to meet its warranty obligations. There is nothing in the


      6
       The actual language in the interrogatory response does not state that Homier
made tractor sales. It only specifies parts and equipment.
                                         -16-
complaint that would have notified Homier that Cole was seeking damages in its
contract claims arising out of direct-to-dealer sales. It cannot, therefore, be used to
oppose summary judgment. See N. States Power Co. v. Fed. Transit Admin., 358 F.3d
1050, 1057 (8th Cir. 2004) ("[W]hile we recognize that the pleading requirements
under the Federal Rules are relatively permissive, they do not entitle parties to
manufacture claims, which were not pled, late into the litigation for the purposes of
avoiding summary judgment."). Accordingly, we find that the district court did not
abuse its discretion in refusing to consider Cole's supplemental testimony and we
affirm the dismissal of Counts I and II.

                       B. Mo. Rev. Stat. § 407.405 (Count V)

       Mo. Rev. Stat. § 407.405 prohibits termination of a franchise agreement without
ninety days' notice. Cole alleged that Homier violated this provision by making sales
to Cole's dealerships prior to and during the ninety-day period following Homier's
notice of termination. In its motion for summary judgment, Homier argued that there
was no evidence that it made any sales without ninety days' notice. Cole responded
by filing an affidavit in which it noted $3,247.84 worth of sales during the ninety-day
notice period. The district court found that this was a "sham issue" and that Cole
could provide no documentary evidence that Homier made any sale of whole goods
during that time period and therefore granted summary judgment to Homier on the
ground that Cole could not prove it had been damaged.

       We cannot agree with the district court that Cole failed to present documentary
evidence on this claim. After reviewing the record in the light most favorable to Cole,
we are convinced that there are factual issues as to whether Homier made sales of
whole goods during the notice period. In her deposition from September 24, 2008,
Christy Cole not only stated that she believed that Homier made direct sales of whole
goods (a log splitter and two generators) during the ninety-day notice period, but she
also referenced the pages in the invoices where these sales and the prices for the
relevant goods were recorded. She confirmed this and again referenced the relevant
                                          -17-
documents in her December 31, 2008 deposition. Thus, Cole puts forth more than
mere allegations—there is documentary evidence to support Cole's claim under Count
V. We therefore reverse the district court's finding of summary judgment as to Count
V.7

                                   VI. Conclusion

       For the foregoing reasons, we affirm in part, reverse in part, and remand for
further proceedings consistent with this opinion.

                        ______________________________




      7
        Cole also appeals the district court's ruling on its motion to strike exhibits
attached to Homier's reply memoranda in support of summary judgment and Cole's
alternative motion for leave to respond to those materials. After reviewing the relevant
documents and viewing Cole's claims in light of our decision in this appeal, we find
that the district court did not abuse its discretion. Brannon v. Luco Mop Co., 521 F.3d
843, 847 (8th Cir. 2008) (stating the standard of review).
                                             -18-
