OPINION
Davisco Foods International, Inc. (“Davisco”) here appeals from (1) the district court judgment that it breached express and implied warranties to Bill and Susie Millenkamp (the “Millenkamps”) and (2) the district court’s denial of post-trial motions that would relieve Davisco of the judgment. We conclude that the district court erred in admitting evidence and giving jury instructions concerning Idaho milk permeate labeling laws and also abused its discretion in admitting Exhibits 18 and 25. These acts prejudiced Davisco. The district judge should have granted Davisco’s motion for a new trial. Accordingly, we reverse the district court’s denial of Davisco’s motion for a new trial and *974 remand the case to the district court for proceedings consistent with this opinion. Because the district court must conduct a new trial, the parties’ arguments concerning offsets for damages, attorneys’ fees, and prejudgment interest are moot.
Facts and Procedural History
The Millenkamps raise bovine calves in Idaho. Davisco operates the “Jerome Cheese Company,” which produces milk permeate as a byproduct of its cheese-making operation. Because milk permeate is sometimes used as a source of dietary energy, protein, and minerals in livestock feeding programs, Davisco sells milk permeate to several dairies near Jerome, Idaho.
Given the use of milk permeate in other feeding programs, the Millenkamps decided to investigate using it as part of their calf feeding operation. They discussed its use in their operation with Davisco employee, Steven Ewing. Ewing admits that he provided the Millenkamps an analysis sheet that set forth the contents of Davis-co’s milk permeate and represented that it had a pH level of at least 6. The Millenkamps also assert that Ewing told them that (1) he “thought” the milk permeate “would be good to feed” the calves; and (2) it should be stored in plastic tanks similar to tanks Ewing observed while touring the Millenkamps’ facilities. The Millenkamps then consulted nutritionist Matt Schmitt of Cargill, Inc. After such investigation, the Millenkamps purchased milk permeate from Davisco, stored it in plastic tanks, and, beginning on May 25, 2002, incorporated it into the feed for their calves.
Within days, Bill Millenkamp noticed that several calves became sick, so he stopped feeding them milk permeate. Soon thereafter, many of the Millenkamps’ calves died or failed to gain weight at a desirable rate. On June 3 and 4, 2002, the Millenkamps’ veterinarian, Dr. Michael Mihlfried, conducted necropsies on three dead calves. He concluded that two of them died from rumen acidosis and the third died from a disease to which acidosis can predispose calves. Mihlfried posited that the Millenkamps stored the milk permeate at an improper temperature, which allowed lactose to ferment into a harmful lactic acid that caused the calves to fall prey to rumen acidosis.
In October 2004, the Millenkamps filed a Complaint against Davisco alleging breach of express warranties, breach of the implied warranty of fitness for a particular purpose, general negligence, and negligence per se. 1 The Millenkamps moved for summary judgment on the negligence per se claim; Davisco moved for summary judgment on all negligence claims. The district court granted summary judgment to Davisco, concluding that the Idaho economic loss rule barred recovery in negligence, even though Davisco may have been negligent per se.
The Millenkamps and Davisco proceeded to trial on the Millenkamps’ claims for breach of express warranty and breach of implied warranty of fitness for a particular purpose. The jury awarded damages to the Millenkamps, finding that Davisco breached those warranties. Davisco subsequently moved for judgment as a matter of law or, in the alternative, a new trial, renewing its in-trial objections to several evidentiary rulings, the jury instructions, and the sufficiency of the evidence. Davis-co also asserted that Idaho law required the district court to offset the jury’s damages award by the amount of the Cargill *975 settlement. The district court denied Davisco’s motions and the offset.
The Millenkamps subsequently filed a motion requesting prejudgment interest, costs and attorneys’ fees. The district court denied the Millenkamps’ request for prejudgment interest, but awarded attorneys’ fees. Both parties timely appealed. Analysis
Davisco argues that the district court (A) mishandled the issue of Cargill’s involvement by failing to give the jury instructions regarding (1) Cargill’s comparative negligence and (2) the Millenkamps’ potential responsibility for Cargill’s acts under an agency theory. Davisco argues that the district court (B) should not have allowed evidence or instructed the jury concerning Idaho’s statutory requirement to label milk permeate for safe use. Davisco argues that (C) the district court (1) made several erroneous evidentiary rulings by improperly admitting (a) Dr. Alois Kertz’s expert testimony, (b) Exhibit 25, a letter from Davisco responding to the Millenkamps’ settlement request, and (c) Exhibit 18, a letter from Cargill’s nutritionist to the Millenkamps, and (2) erred by (a) rejecting Davisco’s proposed spoliation of evidence jury instruction and (b) failing to give the jury a “Time of Delivery” jury instruction regarding the Millenkamps’ breach of warranty theories. Davisco argues that (D) the district court erred by failing to offset the jury’s damages award by the amount of the Cargill settlement. Finally, Davisco challenges the district court’s award of attorneys’ fees to the Millenkamps. The Millenkamps cross appeal the district court’s decision not to award them prejudgment interest.
A
Davisco argues that the district court erred by (1) ruling that Idaho law did not require instructions regarding Cargill’s comparative negligence and (2) failing to instruct the jury that the Millenkamps were responsible for Cargill’s acts under Idaho agency theory, therefore allowing the jury to compare the Millenkamps’ actions to Davisco’s in determining whether Davisco breached the contract. We review these arguments de novo, because Davisco challenges the district court’s interpretation of Idaho law while instructing the jury.
See Fireman’s Fund Ins. Co. v. Alaskan Pride P’ship,
(1)
Based on the evidence that (a) Car-gill’s nutritionist designed the feed mixture that was fed to the calves, and (b) Bill Millenkamp blamed Cargill for at least some of the calves’ problems, Davisco argues that the district court (a) should have instructed the jury regarding Cargill’s comparative negligence, because Cargill was somewhat responsible for the Millenkamps’ losses and (b) should have allowed the jury to compare the fault of Cargill and Davisco. The district court declined a comparative negligence instruction. We affirm the district court’s decision.
Davisco was not entitled to a jury instruction regarding Cargill’s comparative negligence, because negligence is not a defense to liability for breach of warranty claims in Idaho. Idaho courts “allow the defenses of misuse of a product or assumption of the risk to reduce or deny a plaintiffs recovery for breach of warranty, but [they] otherwise
deny negligence as a defense.” Duff v. Bonner Bldg. Supply, Inc.,
Davisco’s argument that “Idaho law will develop to require the comparison of fault where a party seeks consequential damages” is also unpersuasive. Davisco supports its argument by citing cases from other jurisdictions and suggesting that Idaho law will develop similar law. We disagree. Idaho law does not provide for affirmative tort-based defenses in cases involving contractual liability.
See Empire Lumber Co.,
(2)
Davisco argues, in the alternative, that (a) the jury should have been instructed that Cargill was the Millenkamps’ agent, (b) the Millenkamps were responsible for Cargill’s acts under agency theory, and (c) the Millenkamps’ actions therefore should have been compared to Davisco’s actions in determining whether Davisco breached the agreement. We disagree with Davisco’s argument for giving the instruction. To the extent the instruction would assist the jury in determining Davisco’s liability for breach of contract, it would have been error to give it.
A principal is responsible for its agent’s tortious acts, so long as the agent has acted within the course and scope of authority delegated by the principal.
Bailey v. Ness,
B
Davisco challenges the district court’s (1) instruction to the jury that it must consider Idaho’s “legal requirement that the milk permeate contain a label” that includes “directions for use and precautionary statements” in determining whether Davisco breached its warranty to the Millenkamps, and (2) admission of Dr. Kertz’s testimony regarding the development of milk permeate labeling requirements. Because Davisco asserts that the district court misapplied the law of express and implied warranties
2
in instructing the jury, we review that instruction de novo.
*977
See Fireman’s Fund Ins. Co.,
(1)
Title 6 of the Idaho Administrative Procedures Act (“IDAPA”) provides for “Rules Pertaining to the Idaho Commercial Feed Law.” Section 02.06.02.250 of the IDAPA, titled “Directions for Use and Precautionary Statements,” requires, inter alia, that all commercial feeds must be labeled with “[ajdequate directions for use and precautionary statements for safe and effective use.” IDAPA § 02.06.02.250.03 (“Idaho’s Milk Permeate Labeling Requirement”). Violations of Idaho’s regulatory scheme may result in a “withdrawal from sale” order, IDAPA § 02.06.02.600 (Detained Commercial Feeds), and civil penalties not to exceed $10,000 per violation, IDAPA § 02.06.02.900 (Civil Penalties).
The district court instructed the jury regarding Idaho’s Milk Permeate Labeling Requirement and its relationship to the Millenkamps’ breach of warranty claims. In effect, the district court told the jury that a violation of Idaho’s Milk Permeate Labeling Requirement is a basis to find breach of an express warranty and/or the implied warranty of fitness for a particular purpose. Davisco argues that the district court erred by instructing the jury that a violation of Idaho’s Milk Permeate Labeling Requirement is a breach of these warranties. Davisco is correct.
Idaho law recognizes that a state statute may, under certain circumstances, create the basis for
tort
liability and a private cause of action.
See Obendorf v. Terra Hug Spray Co., Inc.,
In
Duffin v. Idaho Crop Imp. Ass’n,
*978 As to the implied warranty of fitness claim, the Millenkamps argued that Davis-co was aware of their intended purpose to feed permeate to calves after storing it in unrefrigerated tanks. They also argue it was unfit for that purpose as furnished to them. Idaho Code Section 28-2-315 creates an implied warranty of fitness for a particular purpose and a cause of action against a seller who fails to furnish goods suitable for the intended purpose. However, it does not create a cause of action against a seller who fails to comply with all applicable statutory labeling requirements. Evidence of labeling practices may be relevant to the extent that a label could render a product suitable for a particular purpose by instructing an otherwise uninformed buyer as to the product’s proper use. The legal requirement to label, however, was irrelevant in these circumstances, because it did not affect Davisco’s knowledge of the intended use or the fitness of the milk permeate as delivered. Accordingly, compliance with Idaho’s Milk Permeate Labeling Requirement does not address whether Davisco breached an implied warranty of fitness for a particular purpose.
By instructing the jury that Davisco’s failure to label the milk permeate would cause the breach of an express warranty or the implied warranty of fitness for a particular purpose, the district court erroneously applied Idaho law. Because this instruction allowed the jury to improperly find Davisco liable for breach of warranties here, Davisco was unfairly prejudiced by such instructions.
See Cancellier,
(2)
In addition to instructing the jury regarding Idaho’s Milk Permeate Labeling Requirement, the district court admitted testimony concerning this same issue from the Millenkamps’ expert, Dr. Kertz. He testified that the American Feed Control Officials’ model feed law required sellers to label milk permeate. Davisco argues that this was an error. Because this testimony, like the jury instruction regarding Idaho’s Milk Permeate Labeling Requirement, is (1) not relevant to determine whether Davisco breached the warranties alleged here and (2) prejudicial to Davisco, we hold that the district court abused its discretion in admitting it.
See Tritchler,
C
Davisco also argues that the district court (1) made several erroneous evidentiary rulings by improperly admitting (a) Dr. Kertz’s expert opinion that the milk permeate likely caused the calves’ illness; (b) Exhibit 25, a letter from Davisco responding to the Millenkamps’ settlement request; and (c) Exhibit 18, a letter from Cargill’s nutritionist to Millenkamp; and (2) erred by (a) rejecting Davisco’s proposed spoliation of evidence jury instruction and (b) failing to give the jury a “Time of Delivery” jury instruction regarding the Millenkamps’ breach of warranty theories. We affirm the district court with respect to its decisions to allow Dr. Kertz’s testimony and reject Davisco’s spoliation of evidence and “Time of Delivery” jury instructions. We reverse the district court with respect to its admissions of Exhibits 25 and 18.
(1)
Pursuant to the standards set forth by
Daubert v. Merrell Dow Pharmaceuticals,
*979
Inc.,
(a)
Daviseo argues that the district court erred by failing to hold a
Daubert
hearing before admitting Dr. Kertz’s testimony and that the testimony lacked foundation. We disagree. “District courts are not required to hold a
Daubert
hearing before ruling on the admissibility of scientific evidence.”
In re Hanford Nuclear Reservation Lit.,
Moreover, Dr. Kertz’s scientific testimony was admissible, because it was supported by a sufficient foundation. He arrived at his conclusions using scientific methods and procedures. Those conclusions were not mere subjective beliefs or unsupported speculation.
See Claar v. Burlington N. R.R. Co.,
(b)
Exhibit 25 is a letter from Daviseo responding to the Millenkamps’ request
*980
for a $500,000 settlement prior to suit. We must determine whether the district court’s decision to admit the letter was an abuse of discretion.
See Tritchler,
Rule 408 bars the admission of settlement negotiations offered to prove liability. However, it does not require exclusion when the evidence is offered for another purpose. Fed.R.Evid. 408(b).
See also Brocklesby v. United States,
Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. We conclude that Exhibit 25 has no tendency to make any fact that is of consequence to the determination of the Millenkamps’ breach of warranty claims any more or less probable than it would be without the letter. Additionally, even if Exhibit 25 were of limited relevance, it should be “excluded if its probative value is substantially outweighed by the danger of unfair prejudice .... ” Fed.R.Evid. 403. Davisco wrote the letter after the Millenkamps informed it of the problems they had with the milk permeate. Thus, the Millenkamps argue that it has probative value as to Davisco’s knowledge of the Millenkamps’ intended use of the milk permeate at the time of sale. However, the prejudicial effect of the threat in Exhibit 25 to “aggressively pursue remedies” against the Millenkamps (should they file suit against Davisco) substantially outweighed any potential limited relevance. Accordingly, Exhibit 25 should not have been admitted, and on remand should not be admitted in the course of a new trial.
(c)
Exhibit 18 is a letter from Cargill’s nutritionist, Matt Schmitt, to Bill Millenkamp, discussing the cause of the Millenkamps’ calves’ illnesses. The district court admitted Exhibit 18 over Davisco’s objection that it was hearsay. The court held that the letter was a Rule 803(6) business record hearsay exception.
See
Fed. R.Evid. 803(6). We conclude that this evidentiary ruling was an abuse of discretion.
See Tritchler,
In order to be admissible under Rule 803(6), a document must have been “made at or near the time” of the events it records or describes, “by, or from information transmitted by, a person with knowledge” of those events, “kept in the course of a regularly conducted business activity,” and part of a business’s “regular practice.” Fed R. Evid. 803(6). Exhibit 18 fails to meet the requirements of Rule 803(6) for admission. It was not generated in the ordinary course of Davisco’s business, nor kept in the course of the regularly conducted business activity. Instead, Exhibit 18 appears to have been generated in anticipation of litigation, rather than as part of a regular business practice. It places the blame for the calves’ illness on Davis-co. Moreover, there is no testimony from the letter’s author nor other evidence that Exhibit 18 would have been generated, but for the Millenkamps’ request.
See, e.g., Latman v. Burdette,
(2)
Davisco also argues that the district court erred by (a) rejecting Daviseo’s proposed spoliation of evidence jury instruction and (b) failing to give the jury a “Time of Delivery” jury instruction. We review the district court’s decision not to provide a spoliation instruction for an abuse of discretion,
see Transue v. Aesthetech Corp.,
(a)
At the trial’s conclusion, Davisco sought a jury instruction that would have allowed the jury to draw adverse inferences from the Millenkamps’ alleged failure to retain evidence. Davisco argues that the Millenkamps failed to preserve (1) evidence of tissue samples collected as part of necropsies, (2) the feed provided to the Millenkamps’ calves, (3) the milk permeate as of the time of the incidents, and (4) other relevant evidence. Davisco argues further that, had the district court instructed the jury regarding spoliation, it “may well have provided different responses to the liability interrogatories.” We disagree.
The adverse inference a jury may draw from the destruction of evidence is “based on two rationales, one evidentiary and one not.”
Akiona v. United States,
Both rationales presume that the evidence-destroying party knew of impending litigation that would render the evidence relevant. Yet there is no evidence in the record to indicate that the Millenkamps knew that litigation would be forthcoming when they allowed the evidence to spoil. The Millenkamps’ attorney apparently wrote Davisco a letter contemplating litigation on October 29, 2002, but Mihlfried conducted the necropsies on June 3 and 4, 2002 — nearly five months prior to the letter. The evidence had likely deteriorated or been discarded by the time that the Millenkamps determined legal action was appropriate. Accordingly, the benefits of allowing the jury to draw negative inferences from the spoliation of evidence — that the destroyed evidence was likely damaging to the party’s case — would not be realized by Davisco’s proposed instruction. Id.
Similarly, providing the jury a spoliation instruction would not serve the deterrence rationale in these circumstances. Under this rationale, “[a] party should only be penalized for destroying documents if it was wrong to do so, and that requires, at a minimum, some notice that the documents are potentially relevant.” Id. Because it was not “wrong” to allow the evidence to spoil nearly five months before Davisco could show that the Millenkamps contemplated any litigious intent, we conclude that the district court did not abuse its *982 discretion in rejecting Davisco’s proposed instruction.
(b)
Davisco challenges the district court’s failure to instruct the jury that “the express warranty could only apply to future performance if explicitly stated.” Because Davisco asserts that the district court misapplied the law in instructing the jury, we review that instruction de novo.
See Fireman’s Fund Ins. Co.,
Davisco’s argument with regard to breach of express warranty is waived under the Ninth Circuit’s strict interpretation of Federal Rule of Civil Procedure 51.
See Voohries-Larson v. Cessna Aircraft Co.,
Further, the district court should not have given a “Time of Delivery” instruction as to these breach of express or implied warranty claims. Under Idaho law, an implied warranty may be breached by a latent defect that could not have been discovered during an inspection at delivery.
Whitehouse v. Lange,
D
Davisco challenges the district court’s denial of its request for an offset of the jury’s damages award by the amount of Cargill’s settlement under Idaho Code § 6-1606 and the district court’s award of attorneys’ fees to the Millenkamps. The Millenkamps cross-appeal, arguing that the district court should have awarded them pre-judgment interest. Because (1) we conclude that the district court erred in instructing the jury regarding Idaho’s Milk Permeate Labeling Law and in admitting Exhibits 25 and 18, and (2) we conclude that these errors unfairly prejudiced Davisco, we reverse the district court and remand this case for a new trial. Accordingly, all issues on appeal that relate to the damages award, fees, and prejudgment interest are moot, because they are predicated upon the jury’s conclusions that Davisco was liable for the Millenkamps’ damages.
AFFIRMED in part, REVERSED in part, and REMANDED. Each party shall bear its own costs on appeal.
Notes
. The Millenkamps also asserted a general negligence claim against Cargill, Inc., which Cargill settled. Accordingly, Cargill is not a party to this appeal.
. We only resolve this issue with respect to allegations that Davisco breached an express warranty and/or an implied warranty of fitness for a particular purpose. Our analysis does not extend to breach of the implied warranty of merchantability, because the Millenkamps did not allege that Davisco breached this warranty.
. The implied warranty of merchantability requires a merchant to properly label the items it sells. Idaho Code § 282 — 314(2)(e). A failure to label under Idaho’s Milk Permeate Labeling Requirement may result in a breach of the implied warranty of merchantability, but the Millenkamps did not allege a breach of this warranty.