Plaintiff’s Lost Profits Deemed “General Damages,” Not “Consequential Damages,” Re: a Distribution Contract in which Plaintiff Agreed to Resell Defendant’s Product

In a full-fledged opinion by Judge Rivera, over a dissent, the Court of Appeals determined that, under the facts, lost profits were “general,” not “consequential” damages.  The distribution contract was for “CoStar stents” (manufactured by defendant) used in medical procedures. The contract called for plaintiff to resell defendant's stents. The resale price was the benchmark for the price of the transfer of the stents to plaintiff for resale. The distribution contract had precluded recovery for consequential damages. Plaintiff sought its lost profits as general damages:

The agreement was not a simple resale contract, whereone party buys a product at a set price to sell at whatever the market may bear. Rather, the price plaintiff paid defendant reflected the actual sales, and sales price, of CoStar stents. The agreement required plaintiff to pay defendant a transfer price calculated as a percentage of plaintiff's net sales of Costar: 61% for direct sales and 75% for indirect sales. Each quarter, the parties would calculate a minimum price based on net sales during the preceding quarter. Plaintiff remained obligated to pay defendant the full transfer price for its sales, even when the actual sales price exceeded the minimum price. Thus, the contract would only operate if plaintiff sold stents, and the payment defendant received bore a direct relationship to the market price plaintiff could obtain.  Indirect sales were sales made by affiliates. * * *

General damages “are the natural and probable consequence of the breach” of a contract … . They include “money that the breaching party agreed to pay under the contract.. . By contrast, consequential, or special, damages do not “directly flow from the breach” … . “The distinction between general and special contract damages is well defined, but its application to specific contracts and controversies is usually more elusive” … . Lost profits may be either general or consequential damages, depending on whether the non-breaching party bargained for such profits and they are “the direct and immediate fruits of the contract” … . Otherwise, where the damages reflect a “loss of profits on collateral business arrangements,” they are only recoverable when “(1) it is demonstrated with certainty that the damages have been caused by the breach, (2) the extent of the loss is capable of proof with reasonable certainty, and (3) it is established that the damages were fairly within the contemplation of the parties”… .  * * *

Here, the agreement used plaintiff's resale price as a benchmark for the transfer price. The contract clearly contemplated that plaintiff would resell defendant's stents. That was the very essence of the contract. Any lost profits resulting from a breach would be the “natural and probable consequence” of that breach …. .

Although the lost profits sought by plaintiff are not specifically identified in the agreement, it cannot be said that defendant did not agree to pay them under the contract, as these profits flow directly from the pricing formula. The purpose of the agreement was to resell. Indeed, defendant … sought to enter a market unavailable to it by capitalizing on plaintiff's distribution network. The fact is that both defendant and plaintiff depended on the product's resale for their respective payments. Biotronik AG v Conor Medsystems Ireland Ltd, 8, CtApp 3-27-14