Mеrcantile Bank lent money to Louis J. Pearlman, who was perpetrating a large fraud. Before the fraud was exposed, American Bank of St. Paul and 25 other banks lent him money. Part of those funds paid off Mercantile’s outstanding loans to Pearlman. American sued Mercantile, claiming it aided, abetted, and conspired with Pearlman. The jury found for American, awarding one-half of the requested damages. Mercantile claims that the district court 1 made erroneous eviden-tiary rulings, gave faulty jury instructions, and should have dismissed the claims as a matter of law. American cross-appeals, claiming that the court should have increased the award to thе full amount of the loss. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
I.
Pearlman was a music producer, real-estate developer, and businessman in Florida. He had a banking relationship with Mercantile. 2 In April 2003 — when Mercantile had about $10 million in loans outstanding to Pearlman — it agreed to lend him an additional $6 million. The new loan was collateralized by stock Pearlman held in Transcontinental Airlines, Inc. (TCA), a private charter airline company. TCA was supposedly audited by Cohen & Siegel, purportedly a German auditing firm with an office in Coral Gables, Florida.
Pearlman borrowed yet another $6 million from Mercantile on a line of credit in *461 February 2004. In early 2005, Pearlman sought to consolidate all his outstanding debts to Mercantile (about $14 million) into one loan. During Mercantile’s due diligence and underwriting process, it twice extended Pearlman’s line of credit, and then added an additional $3 million credit line.
A new credit analyst at Mercantile evaluated Pearlman’s loans. Through her own research, she could not confirm the existence of Cohen & Siegel. Mercantile hired an investigative firm, which also could not confirm the accounting firm. Mercantile then met with attorneys to develop a plan to collect Pearlman’s debt, which was now in default.
Mercantile and Pearlman met three times to discuss the situation. At one meeting, Mercantile’s president, Andy Cheney, met one-on-one with Pearlman. Cheney claims that in this conversation he stressed to Pearlman only the importance of being truthful. Pearlman, however, contends he told Cheney that TCA was a “can of worms” that no one wanted to open, and that it could get “very messy.” At trial, over objection, Pearlman was allowed to testify that Cheney understood that TCA was a “house of cards.” After this meeting, Mercantile and Pearlman entered into a forbearance agreement giving Pearlman time to repay the loans.
In Fall 2005, Pearlman worked with North American Capital Markets (NACM) to assemble a new financing facility. According to the offering materials, the facility’s purpose was to pay off existing debt (including Mercantile’s), and finance Pearl-man’s purchase and production of the “Top of the Pops” television program from the BBC. Several small, local banks — with American as the lead — participated in the financing. The participation agreement stated that each bank performed its own due diligence and made its own investment decision.
In March 2006, Pearlman said he needed $5 million from the new facility to make a licensing payment for the television program. The facility was not yet fully participated, so it could not closе. NACM presented two options to Mercantile: (1) close the facility and receive partial payoff of the debt, with Mercantile taking a participation interest in the new facility for the amount left outstanding; or (2) NACM would provide the additional funds necessary to close the transaction, but once the facility was fully participated, NACM would be paid off before Mercantile. Mercantile chose the first option. It participated in the new facility for $1.89 million. Mercantile’s participation was paid off in April 2006.
Pearlman subsequently pled guilty to several charges of bank frauds and Ponzi schemes. He defaulted on the new faсility in December 2006. He admitted that TCA and Cohen & Siegel were fabricated.
American sued Mercantile on six grounds attempting to recover the unpaid balance on the facility. The district court granted summary judgment to Mercantile on four theories, but allowed a trial on aiding and abetting as well as conspiracy. The court denied Mercantile’s Rule 50 motion for judgment as a matter of law. The jury found for American on both theories. Using a special verdict form, the jury awarded American $13,557,900.50, one-half of the amount outstanding when Pearlman defaulted. Mercantile timely renewed its motion for judgment as a matter of law and sought, in the alternative, a new trial. The district court denied both mоtions.
II.
Mercantile argues that the district court should have granted its motion for judgment as a matter of law. Under
*462
Rule 50, a court may grant the motion if “a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” Fed.R.Civ.P. 50(a)(1). This court reviews de novo a denial, viewing the evidence most favorable to the jury’s verdict.
Wilson v. Brinker Int’l, Inc.,
Mercantile contends that judgment as a matter of law was appropriate on the aiding and abetting claim as well as the conspiracy claim.
A.
An aiding and abetting claim in Minnesota has three elements:
(1) the primary tort-feasor must commit a tort that causes an injury to the plaintiff;
(2) the defendant must know that the primary tort-feasor’s conduct constitutes a breach of duty; and
(3) the defendant must substantially assist or encourage the primary tort-fea-sor in the achievement of the breach.
Witzman v. Lehrman, Lehrman & Flora,
Mercantile offers Minnesota’s general rule that banks have no duty to disclose financial information about customers absent special circumstances.
See Klein v. First Edina Nat’l Bank,
(a) One who speaks must say enough to prevent his words from misleading the other party. Newell v. Randall [32 Minn. 171 ],19 N.W. 972 (Minn.1884).
(b) One who has special knowledge of material facts to which the other party does not hаve access may have a duty to disclose these facts to the other party. Marsh v. Webber,13 Minn. 109 ,Gil. 99 (1868).
(c) One who stands in a confidential or fiduciary relation to the other party to a transaction must disclose material facts. See, e.g., Wells-Dickey Trust Co. v. Lien [164 Minn. 307 ],204 N.W. 950 (Minn. 1925).
Id.
at 622. Minnesota courts also recognize a specific exception when the bank is aware that the client is “irretrievably insolvent.”
Richfield Bank & Trust Co. v. Sjogren,
Mercantile contends it did nothing more than enter into normal banking transactions with a customer, emphasizing it did not draft the offering materials or solicit the participating banks. It was a mere forbearance of debt collection, so the argument goes, and the participation rolled old debt into new debt — no additional capital was provided. A decision from the Second Circuit closely parallels this case.
See In re Sharp Int’l Corp.,
The court observed that under New York law there is no duty to warn (similar to Minnesota), and there must be affirmative assistance. Id. at 50-51. The plaintiff alleged five grounds for affirmative assistance. Id. at 51-52. The court dismissed four in short order, finding they were nothing more than forbearance (e.g., failure to report or reveal). Id. The fifth ground more closely parallels this case. The original loan agreements required State Street to consent before the new noteholders purchased additional notes. Id. at 52. Finding this consent was not substantial assistance, the court said:
State Street’s grant of consent can be characterized as affirmative: State Street was called upon to utter or write a consent without which Sharp could not have borrowed additional funds from the Noteholders. On the other hand, State Street’s consent was mere forbearance; it did no more than remove a contractual impediment that was reserved to State Street to invoke or not in its own interest. The existence of that right did not entail a duty to consider the interests of anyone else, and State Street’s exercise of that right to protect itself rather than its improvident competitors did not constitute participation in the Spitzes’ fraud.
Id. at 52.
Mercantile likens its participation to State Street’s consent — removing an obstacle to the completion of the transaction. The district court correctly found that Mercantile’s participation was sufficient to send the question to the jury. Participation is more than consent. It is more than pressuring a client to find additional sources of financing.
See, e.g., Liberty Sav. Bank, FSB v. Webb Crane Serv., Inc.,
Several witnesses testified that Mercantile’s participation was necessary for the loan’s closing. Pearlman testified that Mercantile “wanted to make a deal so badly that they participated in the next deal as a facade.” Mercantile’s credit officer — who approved the participation — acknowledged that it did not meet the bank’s underwriting standards. Mercantile’s expert testified that the loan presentation report from the participation “did not include all of the relevant facts that they had knowledge of.” While Mercantile disputes the significance of this testimony, the jury was free to believe it.
The district court did not err by denying Mercantile’s Rule 50 motion for judgment as a matter of law on the aiding and abetting claim.
B.
On the conspiracy claim, Mercantile contends that the district court should have granted its motion for judgment as a matter of law. Proof of a conspiracy requires a meeting of the minds between Pearlman and Mercantile to commit the fraud.
Bukowski v. Juranek,
Mercantile asserts that the only possible evidence of a meeting of the minds was the one-on-one conversation between Pearl-man and Cheney. Because Mercantile believes testimony about that conversation was inadmissible, it contends that it should have recеived judgment as a matter of law.
This court reviews evidentiary rulings for clear abuse of discretion, and reverses “only when an improper eviden-tiary ruling affected the defendant’s substantial rights or had more than a slight influence on the verdict.”
Chism v. CNH Am. LLC,
Mercantile argues that this testimony is unhelpful and prejudicial because Pearlman did not know Cheney’s thoughts. Testimony must be based on a witness’s рersonal knowledge. Fed.R.Evid. 602. Opinion testimony of a lay witness must be
*465
“rationally based on the witness’s perception” and “helpful to clearly understanding the witness’s testimony or to determining a fact in issue.” Fed.R.Evid. 701(a), (b);
In re Air Crash at Little Rock Ark, on June 1, 1999,
Pearlman’s testimony was rationally based on his perception of the conversation and the circumstances. He indicated that the bank was taking a more aggressive posture toward the relationship before the conversation. Afterwards, Mercantile was willing to enter a forbearance agreement. Pearlman’s testimony was based on his banking relationship with Cheney and Mercantile. Pearlman had both personal knowledge and experience with this relationship — a proper basis for the testimony.
United States v. Rea,
The testimony is also helpful to the jury because it provides context to the conversation and information about the parties’ relationship. The testimony in this case is different than the testimony excluded in the cases Mercantile cites.
See Hester v. BIC Corp.,
The testimony here is both rationally based on Pearlman’s perception and helpful to the jury.
See United States v. Stadtmauer,
Much of Mercantile’s belief of insufficient evidence is based on its misconception of the purpose for which this testimony is offered. The testimony helped also to establish knowledge — that Mercantile was aware of Pearlman’s frauds.
5
Contrary to Mercantile’s assertion, the conversation between Pearlman and Cheney is not the only evidence of an agreement between the parties. American offered additional circumstantial evidence to establish the conspiracy.
See Bowie,
The additional evidence of a conspiracy also renders harmless any error in admitting Pearlman’s statement that Cheney understood him. A verdict will not be reversed absent a showing that the ruling in question “had a substantial influence on the jury’s verdict.”
McPheeters v. Black & Veatch Corp.,
Any error is also harmless because similar testimony was not objected to by Mercantile. Pearlman testified “I understood and he understood,” referring to Cheney. Mercantile asserts it is not possible to tell what Cheney understood. The full colloquy establishes otherwise:
Q. Who did you tell that to?
A. Andy Cheney.
Q. And did you tell him that demand to have Trans Continental Airlines write the check open a can of worms as you put it?
A. Yeah.
Q. Did you explain to him why that would be a can of worms?
A. He didn’t want to know, which means he probably knew.
Q. When you say he didn’t want to know, did he — how did he express that to you?
A. He didn’t ask me any further questions on it.
Q. When you said having Trans Continental Airlines pay would open a can of worms?
*467 A. We had a one on one. I understood and he understood.
This testimony has the same import as the objected-to testimony. Because similar evidence came in without objection, the objected-to testimony did not have a “substantial influence on the jury’s verdict.”
McPheeters,
The district court did not err by denying Mercantile’s Rule 50 motion for judgment as a matter of law on the conspiracy claim.
III.
Mercantile asserts that the distriсt court erred by excluding evidence of the other participating banks’ reactions to Pearl-man’s fraud. Mercantile believes this evidence is relevant as it would allow the jury to compare Mercantile’s reaction to those of the other participating banks, and would demonstrate that Mercantile’s reaction was reasonable. The district court excluded the evidence, ruling that relevant evidence demonstrated the knowledge and actions of Mercantile at the time it became aware of the fraud. The later-discovered evidence and reactions, the court ruled, were irrelevant and would tеnd to confuse the jury.
“A district court’s exclusion of evidence is reviewed for an abuse of discretion.” Har
ris v. Chand,
“Irrelevant evidence is not admissible.” Fed.R.Evid. 402. The court correctly stated that the proper scope of this case was Mercantile’s response to learning of the fraud. Evidence of other banks’ responses to the same information is irrelevant. The evidence was properly focused on the allegations in the complaint.
Further, the district court noted that it did not “intend to try more than one fraud claim here,” aptly describing the potential for confusion. “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. Although the court did not specifically cite Rule 403, the record reflects that inquiry was present. See
Bair v. Callahan,
Excluding other banks’ reactions to Pearlman’s fraud was not error.
IV.
Mercantile attacks the aiding and abetting jury instructions and requests a new trial.
This court reviews for an abuse of discretion a district court’s jury instructions. Zebley v. Heartland Indus. of Dawson, Inc.,625 F.3d 449 , 455 (8th Cir.2010). “A district court possesses broad discretion in instructing the jury, and jury instructions do not need to be technically perfect or even a model of clarity.” Id. (quotation and citation omitted). We limit our review “to *468 whether the jury instructions, taken as a whole, fairly and adequately represent the evidence and applicable law in light of the issues presented to the jury in a particular case.” Id. (quotation and citation omitted). “[E]ven if we find that a district court erroneously instructed the jury, we will reverse only where the error affects the substantial rights of the parties.” Id. (quotation and citation omitted).
Der v. Connolly,
The first challenged instruction concerns “actual knowledge.” The district court instructed the jury that they must find that Mercantile “actually knew Louis Pearlman was committing fraud against American Bank....” Mercantile wanted an instruction that “red flags and mere suspicions are not enough,” and that what Mercantile “arguably should have known” was irrelevant. The court’s instruction accurately stated the law in a clear fashion. The рroposed instruction introduces additional confusion into words of common understanding. The court does not need to define terms of ordinary meaning.
United States v. Shyres,
Second, the district court denied an instruction Mercantile proposed. This court reviews for abuse of discretion.
Shaw Hofstra &
Assocs.
v. Ladeo Dev., Inc.,
Substantial assistance means something more than routine business services to a bank customer. Thus, the routine extension of a loan does not amount to substantial assistance.
The district court did not abuse its discretion by denying this instruction. The instruction assumes the very question to be decided by the jury — whether Merсantile’s actions were “routine.” This proposal could also confuse the jury on a myriad of additional issues (e.g., what are “routine business services,” what is a “routine extension,” is participation considered “routine”). The district court properly denied this instruction and left the correct determinations to the jury.
V.
In its cross-appeal, American contends that the district court improperly denied its motion to increase the judgment to the full amount of its loss. Through the use of a special verdict form, the jury awarded American exactly one-half of its requested damages. American moved under Rule 59(e) for additur — to increase the amount of the judgment. The district court denied the motion.
Mercantile argues that American waived this argument because it did not present it in a Rule 50 motion for judgment as a matter of law. According to Mercantile, American never argued that the issue of damages should be taken away from the jury, which would require a judgment as a matter of law. American’s theory, however, is that the jury instructions were proper but were misapplied by the jury and the court, resulting in an incorrect judgment. As they seek to amend that judgment, a Rule 59 motion is the appropriate vehicle. Fed.R.Civ.P..59(e).
This court reviews “the denial of an additur for abuse of discretion, bearing in mind that if the amount of damages was disputed, a grant of additur violates the losing party’s Seventh Amendment right to a jury trial.”
Trinity Prods., Inc. v. Burgess Steel, L.L.C.,
Here, the district court correctly ruled that the amount of damages was a factual question for the jury. American correctly notes that the parties did not dispute the amount of the lоan outstanding when Pearlman defaulted. Nevertheless, the amount of damages the banks suffered in reliance on Pearlman was a factual question for the jury.
7
American asserts that this is applying comparative fault, which is inappropriate for intentional torts.
Florenzano v. Olson,
... In deciding damages, decide the amount of money that will fairly and adequately compensate American Bank and/or each participating bank for the damages directly caused by relying on Louis Pearlman’s misrepresentation.
American did not object to this jury instruction. The plain language of this instruction charged the jury with determining the amount of damages caused by reliance. It further instructs the jury to do so “fairly” and “adequately.” American essentially asks this court to ignore this instruction — an instruction to which it did not object. “If ... the issue of damages was an issue of fact for the jury, as the parties and the court obviously thought it was when the case was submitted, the court was unquestionably without power to increase the judgment entered on the jury’s verdict.” Mil-print, Inc. v. Donaldson Chocolate Co., 222 F.2d 898, 901 (8th Cir.1955).
Additional jury instructions confirm the jury’s discretion. The end of Instruction 29 states:
Damages for fraud or misrepresentation are limited to: The difference between the participation interest paid for and repayment actually received from Pearlman.
(emphasis in original). American did not object to this statement. Instead, it now criticizes the district court and Mercantile for “seizing] on” the words
limited to.
Those words, however, are the correct focus.
Limited
is defined as “confined within limits: restricted in extent, number, or duration.”
Webster’s Third New International Dictionary
1312 (1981). American argues that
limited to
limits only the “cat
*470
egory” of damages that can be awarded, not the amount. American asserts that the language limits damages to “out-of-pocket” damages as opposed to “benefit-of-the-bargain” damages. Minnesota does prefer out-of-pocket damages in fraud and misrepresentation cases.
B.F. Goodrich Co. v. Mesabi Tire Co.,
Deciding damages for fraud and misrepresentation
In deciding damages, decide the amount of money that will fairly and adequately compensate (plaintiff) for the damages directly caused by relying on (defendant’s) misrepresentation.
Damages for fraud or misrepresentation are limited to:
1 The difference between the actual value of the property received and the price paid for it, and
2 Any other damages that were directly caused by relying on the fraud or misrepresentation.
4 Minnesota Practice, Jury Instruction Guides — Civil 57.25 (5th ed. 2010) (emphasis in original). The plain text of the model instruction, and the instruction given here, indicates that the jury can award less that the full amount. If the law required the full amount of the damages to be awarded, it would omit the words limited to. The instruction would then read “Damages for fraud or misrepresentation are: The difference between the participation interest paid for and repayment actually received from Pearlman” — exactly what American wishes this court to hold. This court refuses to read out limited to, especially in an instruction given without objection.
Question 11 of the special verdict form (included in full as the Appendix to this opinion) is also telling. American did not object to the special verdict form. The question states: “[Wjhat amount of compensatory damages, if any, are each of the banks entitled to received] ... The maximum amount of damages allowable for each bank is identified in parentheses.” The jury identified the plaintiffs selected to recover — all of them — and wrote in the amount of damages for each particular bank.
Yet again, the plain language of the special verdict form confirms that the jury could award less than the full unpaid balance. Otherwise, the words “maximum” arid “allowable” are unnecessary. American claims that the maximum amounts only provide an upper limit — that one bank could not receive more than its unpaid balance — but that the options for damages are either the full amount or zero. If this were true, there would be no reason fоr the jury to identify the amount of damages; the court would have simply asked the jury to identify the banks entitled to receive damages, then entered either judgment in full or zero damages.
American explains its failure to object by claiming that the instructions accurately stated the law, but the court failed to apply it correctly. The plain language of the instructions refutes American’s argument. A reasonable jury could not read these instructions and conclude that the only possible outcomes for each participant bank were either full damages or zero damages. If American believed that to be the law, an objection was warranted.
Additur is not appropriate in this case because the question of damages was properly left to the jury. This is confirmed by several, unobjectéd-to, jury instructions *471 and the form. The district court did not abuse its discretion by denying American’s Rule 59(e) motion to amend the judgment.
Because damages were a jury issue, the court’s prejudgment interest calculation was also correct. The damages were not “readily ascertainable” when Pearlman defaulted on December 1, 2009.
See Matthew v. Unum Life Ins. Co. of Am.,
‡ ‡ ‡ ‡
The judgment of the district court is affirmed.
*472 Appendix
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*473 [[Image here]]
Notes
. After the events in this case, TD Bank, N.A. purchased Mercantile Bank. Although TD Bank is the defendant here, this court will refer to the defendant as "Mercantile.”
. The district court accordingly instructed the jury to "not consider for any purpose whether Mercantile Bank should have disclosed any information it may have had about Louis Pearlman to American Bank or the Participant Banks.”
. American claims that
In re Sharp
is easily distinguishable, because it applies New York law. This distinction is weak. New York and Minnesota both follow the Second Restatement approach to aiding and abetting.
Witz-man,
. On appeal, Mercantile concedes that sufficient evidence existed for a reasonable jury to find it had actual knowledge of Pearlman’s fraud. Because American argues that Pearl-man's testimony is relevant only to knowledge, and not to a meeting of the minds, Mercantile says that the conspiracy charge must fail. But, as explained below, sufficient additional proof of a conspiracy existed.
. As the Suprеme Court explained: "[WJhere the verdict is too small, an increase by the court is a bald addition of something which in no sense can be said to be included in the verdict. When, therefore, the trial court here found that the damages awarded by the jury were so inadequate as to entitle plaintiff to a new trial, how can it be held, with any semblance of reason, that that court, with the consent of the defendant only, may, by assessing an additional amount of damages, bring the constitutional right of the plaintiff to a jury trial to an end in respect of a matter of fact which no jury has ever passed upon either explicitly or by implication?”
Dimick v. Schiedt,
. Under the conspiracy theory, Mercantile is held liable for reliance on Pearlman’s representations.
Witzman,