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November 30, 1999


The opinion of the court was delivered by: Scheindlin, District Judge.


On October 15, 1999, ESPN, Inc. ("ESPN") and the Office of the Commissioner of Baseball ("Baseball") moved in limine to preclude the admission of certain evidence and argument at their forthcoming trial. Ten separate motions — five by ESPN and five by Baseball — were fully submitted on October 29, 1999. Six of the motions were resolved by opinion dated November 22, 1999. Three of the motions were resolved from the bench during a hearing on November 23, 1999. The final motion, ESPN's motion in limine to preclude damages evidence, is the subject of this Opinion and Order.

I. ESPN's Motion in Limine to Preclude Damages Evidence

In my November 22 opinion, I ruled that ESPN breached its 1996 telecasting agreement ("1996 Agreement") with Baseball when it preempted six baseball games scheduled for Sunday nights in September 1998 and September 1999 without the prior written approval of Baseball. See ESPN, Inc. v. Office of Commissioner of Baseball, 1999 WL 1063241, 99 Civ. 3225, slip op. at 38-39 (S.D.N.Y. Nov. 23, 1999).*fn1 ESPN broadcast NFL football games rather than the previously scheduled baseball games on those six nights.

Baseball claims that it has been damaged in an amount "believed to exceed millions of dollars" as a result of ESPN's breach of the 1996 Agreement. See Baseball's Objections and Responses to ESPN's First Set of Interrogatories, Ex. A to 10/15/99 Affidavit of Eric J. Lobenfeld, counsel for ESPN, in Support of Motion to Preclude Damages Evidence ("Lobenfeld Aff."), at 7. Baseball attributes its damages to an alleged loss of:

(1) national television exposure;

(2) promotional opportunities and ratings;

  (3) value of the "Sunday Night Baseball" television

(4) prestige;

(5) potential sponsorships; and

  (6) the future value of all of Baseball's national
      telecast packages

Id. at 7-8. Because Baseball received full payment from ESPN under the contract, it may only seek extra-contractual damages stemming from the six preemptions.

By its motion, ESPN seeks to preclude Baseball from introducing testimony or other evidence of its alleged monetary damages. ESPN contends that "there is no factual basis to support any claim for monetary damages arising from these perceived injuries, and that such claims are the product of speculation and guesswork." ESPN's Memorandum in Support of Its Motion in Limine to Preclude Damages Evidence ("ESPN MIL") at 2. Baseball argues that it has made the "requisite showing of damage" and therefore it is "entitled to have the opportunity to prove its damages at trial." Baseball's Response to Plaintiff's Motion to Preclude Damages ("BB Op.") at 10.

II. Legal Standard

It is well-settled under New York law that

  [a] plaintiff seeking compensatory damages has the
  burden of proof and should present to the court a
  proper basis for ascertaining the damages [it] seeks
  to recover. They must be susceptible of ascertainment
  in some manner other than by mere conjecture or

Dunkel v. McDonald, 272 A.D. 267, 70 N.Y.S.2d 653, 656 (1st Dep't 1947), aff'd, 298 N.Y. 586, 81 N.E.2d 323 (1948). See also Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918, 926 (2d Cir. 1977) (finding that under New York law, "[w]hen the existence of damage is uncertain or speculative, the plaintiff is limited to the recovery of nominal damages"); V.S. Int'l, S.A. v. Boyden World Corp., 862 F. Supp. 1188, 1197 (S.D.N.Y. 1994) ("[I]t is well-established under New York law, that a plaintiff must prove the existence of damages with certainty in order to recover for breach of contract."). Although it is true that "[w]hen the existence of damage is certain, and the only uncertainty is as to its amount, the plaintiff will not be denied recovery of substantial damages," but even then the plaintiff must show "a stable foundation for a reasonable estimate" of damages. Contemporary Mission, Inc., 557 F.2d at 926. See also Wolff & Munier, Inc. v. Whiting-Turner Contracting Co., 946 F.2d 1003, 1010 (2d Cir. 1991) ("Although a party is not to be denied damages when they are necessarily uncertain, New York law does not countenance damage awards based on `[s]peculation or conjecture.'") (quoting Berley Indus. v. City of New York, 45 N.Y.2d 683, 687, 412 N.Y.S.2d 589, 385 N.E.2d 281 (1978)).

With respect to damages for loss of goodwill, business reputation or future profits, the proof requirements are much more stringent. See Toltec Fabrics, Inc. v. August Inc., 29 F.3d 778, 781-782 (2d Cir. 1994). Not only must the claimant prove the fact of loss with certainty, but the "loss must be `reasonably certain in amount.'" Id. at 781 (quoting Robert T. Donaldson, Inc. v. Aggregate Surfacing Corp., 47 A.D.2d 852, 366 N.Y.S.2d 194, 196 (2d Dep't 1975)). "In other words, the damages may not be merely possible speculative or imaginary but must be reasonably certain and directly traceable to the breach, not remote or the result of other intervening causes." Beeland Interests, Inc. v. Armstrong, 1999 WL 813266 ...

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