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Neste Polyester10/5/2005
This appeal is from a jury verdict awarding appellees Frank Burnett and Dennis Joslin Company 2000, Inc., damages in the sum of $2,500,000 for breach of warranty on a defective product used to seal boats. Appellant Neste Polyester, Inc., raises four points concerning Viper's amendment of the complaint to conform to the proof, the trial court's striking of its affirmative defenses, the trial court's failure to submit the case to the jury on interrogatories, and the trial court's failure to award a new trial. Finding no error, we affirm.
Viper is a manufacturer of fiberglass recreational boats. Neste manufactures the clear coat Viper used to protect the finish of its boats. From June 1994 until April 1999, Viper purchased all of its clear coat from Neste. In April 1999, Neste informed Viper that all of its clear coat purchased since April 1998 was defective. Viper had manufactured 784 boats using the defective product and, by May 1999, had received twenty-seven complaints. Neste paid for the replacement of these twenty-seven boats. Viper thereafter determined that the only way to remedy the remaining defective boats was to replace them. Neste refused to pay for the replacement of the remaining boats.
On October 23, 2000, Viper filed suit against Neste alleging breach of express and implied warranties, negligence, breach of contract, and fraud. Viper alleged that Neste was liable for the replacement of all 784 boats and that its damages could exceed $10,000,000. In both the complaint and first amended complaint, Viper alleged that the problems with the clear coat threatened to destroy its business reputation and goodwill. Neste denied the allegations.
At a November 25, 2003, pre-trial conference, Viper's attorney disclosed its expert economist, Robert "Jay" Marsh, and announced that Viper was pursing a new approach to damages. That approach was to seek damages for its loss of business and loss of future profits. Neste's then-attorney, Alfred Angulo, recognized that this announcement changed Viper's theory of the case and placed Neste on notice that Viper was seeking damages for the loss of its entire business. Angulo did not object to this change in theories, nor did he move for a continuance.
Following the November conference, a scheduling order was entered providing that Viper was to amend its discovery responses so as to provide the substance of Marsh's opinion by February 5, 2004. Neste was to disclose its expert, together with the substance of its expert's testimony by March 8, 2004. Neste disclosed its expert, Richard Schwartz, after the deadline in the scheduling order and did not provide Schwartz's report. The scheduling order also provided that all exhibits and witness lists were to be exchanged by March 16, 2004. All motions, except for motions in limine, were to be filed by May 2, 2004, with all motions in limine filed by May 25, 2004.
Viper moved for partial summary judgment as to liability. After Neste failed to respond to the motion, an order was entered granting Viper summary judgment as to the issue of liability. The issue of damages was to be tried.
Later, Viper timely moved for summary judgment on the issue of damages, alleging that, as a result of the problems with Neste's clear coat, Viper's business declined until Viper ceased operations in 2003. The motion was supported by Marsh's affidavit and report, stating that he had calculated Viper's economic loss at $6,452,259. This motion was denied. After the motion for summary judgment as to damages was denied, Neste filed a timely motion in limine seeking to prevent Marsh from testifying at trial because Marsh had no personal knowledge of the matter and because he was addres
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