622 F.Supp.2d 198 (D.N.J. 2009), Civ. 05-538 (JEI/JS), Viking Yacht Co. v. Composites One LLC

Docket Nº:Civ. 05-538 (JEI/JS).
Citation:622 F.Supp.2d 198
Opinion Judge:IRENAS, Senior District Judge:
Party Name:VIKING YACHT COMPANY, a New Jersey Corporation; and Post Marine Co., Inc., a New Jersey Corporation, Plaintiffs, v. COMPOSITES ONE LLC, a Foreign Limited Liability Company; Curran Composites, Inc., a Missouri Corporation; C Two LLC, a Foreign Limited Liability Company; and Total Composites, Inc., a Delaware Corporation joint d/b/a/ Cook Composites
Attorney:Henry J. Tyler, Esq., Mullica Hill, NJ, Berger Singerman by Michael O. Weisz, Esq., Miami, FL, for Plaintiffs. Buchanan Ingersoll PC by Steven E. Bizar, Esq., Landon Y. Jones, Esq., Philadelphia, PA by P. Kevin Bobson, Esq., Harrisburg, PA, of Defendant Cook Composites and Polymers.
Case Date:June 02, 2009
Court:United States District Courts, 3th Circuit, District of New Jersey

Page 198

622 F.Supp.2d 198 (D.N.J. 2009)

VIKING YACHT COMPANY, a New Jersey Corporation; and Post Marine Co., Inc., a New Jersey Corporation, Plaintiffs,

v.

COMPOSITES ONE LLC, a Foreign Limited Liability Company; Curran Composites, Inc., a Missouri Corporation; C Two LLC, a Foreign Limited Liability Company; and Total Composites, Inc., a Delaware Corporation joint d/b/a/ Cook Composites and Polymers, a fictitiously named Delaware Partnership, Defendants.

Civ. No. 05-538 (JEI/JS).

United States District Court, D. New Jersey.

June 2, 2009

Page 199

Henry J. Tyler, Esq., Mullica Hill, NJ, Berger Singerman by Michael O. Weisz, Esq., Miami, FL, for Plaintiffs.

Buchanan Ingersoll PC by Steven E. Bizar, Esq., Landon Y. Jones, Esq., Philadelphia, PA by P. Kevin Bobson, Esq., Harrisburg, PA, of Defendant Cook Composites and Polymers.

OPINION

IRENAS, Senior District Judge:

Presently before the Court are Defendant's Renewed Motion for Summary Judgment on Counts VII, IX, X, and XI (Docket No. 169) and Plaintiffs' Renewed Cross-Motion for Summary Judgment (Docket No. 192).1 The Court has reviewed the submissions of the parties, and for the reasons set forth below, Defendant's Motion will be granted in part and denied in part, and Plaintiffs' Cross-Motion will be denied.

I.

Viking Yacht Company (" Viking" ) and Post Marine Co., Inc. (" Post" ) (collectively, " Plaintiffs" ) are luxury yacht manufacturers. They brought suit against Defendant Cook Composites and Polymers, Co. (" CCP" ) to recover damages resulting from the cracking of gel coats on yachts Plaintiffs manufactured using CCP's 953 Series gel coat. The Court has extensively discussed the facts and history of this case in its previously issued opinions on cross-motions for summary judgment, motions for reconsideration, and a more recent motion to bifurcate the trial of liability and damages.2 As a result of this Court's previous holdings, Plaintiffs' surviving claims are: (1) breach of express warranty, (2) common law fraudulent misrepresentation, and (3) violation of the New Jersey Consumer

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Fraud Act, N.J. Stat. Ann. § 56:8-2.

In reaching it's holdings on the previous motions for summary judgment and subsequent motions for reconsideration, the Court performed a careful review of the record, and based its conclusions upon the evidence as it existed at the time. Following the resolution of the aforementioned motions, the parties conducted expert discovery, and subsequently filed motions in limine to exclude the experts' testimony; the Court has recently decided these motions as well. 3,4 As a result of those opinions, the Court has a clearer picture of what evidence the parties will be able to present at trial, particularly that having to do with the alleged flaws in the formulation of the 953 Series gel coat. The introduction of the expert testimony into the record is the most significant change to the record since the previous summary judgment motions.5

Plaintiffs will be offing Dr. James M. Caruthers, Ph.D., a professor of chemical engineering, to offer testimony pertaining to the laboratory testing and chemical composition of the 953 Series gel coat. Particularly, he opines that, " [n]one of the laboratory testing of the CCP resins addressed the critical use condition, which included long term UV exposure, long term exposure to air and subambient deformation of the gel coat." (Caruthers Rep. at 2.) Additionally, he opines that, " [t]he formulation of the 953 gel coat is flawed due to the presence of the adipic acid and the absence of the UV stabilizer, leading to degradation over time of the flexibility of the 953 gel coat." ( Id. )

Plaintiffs will also be offering David E. Jones, III, " naval architect and marine engineer," with a specialty in " structural composites," to testify regarding the " unique" global nature of the cracking in the Tortora yacht 6, and his elimination of certain manufacturing causes that he specifically looked for and eliminated.7

CCP will be offering Dr. A Brent Strong, who hold a Ph.D. in chemistry and

Page 201

is a professor of mechanical engineering technology. Dr. Strong repeated CCP's PE-210 test, and concluded with " a confidence level of 95%" that the 953 Series gel coat was more flexible than the 952 Series gel coat. (Strong Rep. ¶ ¶ 64-65.) Furthermore, his results " confirm that the data reported by CCP in 1998 stating that the 953 Series gel coat had improved elongation over the 952 Series gel coat .... [and] also established that the PE-210 test is reliable for determination of elongations." ( Id. at 567.) With regard to the chemical formulation of the 953 Series gel coat, Dr. Strong concluded:

The formulation of the 953 Series gel coat is appropriate. The performance of boats made by other boat manufacturers, such as Anthony Smith at Performance Cruising, shows that the 953 Series gel coat performs well. This excellent performance suggest that the cracking difficulties encountered in boats made by Viking and Post are not in the gel coat, but, rather, in some other factor beyond or outside CCP's control (such as design, manufacturing, use, environment, etc.). The performance of the gel coat, especially in light of the many good cases of 953 Series gel coat usage, is chiefly a function of the design and manufacturing of the boat or the environment in which it is used. Therefore, the cause of the cracking problem lies with Post or Viking, or possibly, with the ultimate consumer who has not used the boat properly, or it could also be the result of environmental factors.

( Id. at ¶ 91.)

II.

" [S]ummary judgment is proper ‘ if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ " Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir.1986).

" ‘ With respect to an issue on which the non-moving party bears the burden of proof, the burden on the moving party may be discharged by ‘ showing’ -that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.' " Conoshenti v. Public Serv. Elec. & Gas, 364 F.3d 135, 145-46 (3d Cir.2004) (quoting Celotex ). The role of the Court is not " to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III.

CCP has previously moved, and Plaintiffs cross-moved for summary judgment on the breach of warranty claims, Counts IX and X. After discussing the applicable law and the warranty language at some length, the Court " held that CCP's representations in the PB-58 created an express warranty that was not disclaimed." Viking, 496 F.Supp.2d at 470. However, the Court could not

decide as a matter of law whether this warranty was breached. The warranty for " improved flexibility" is vague. A reasonable jury could find that a warranty for improved flexibility does not include a warranty against cracking after use and/or storage in cold climates by the end purchaser of the yachts.

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Id. Accordingly, summary judgement was denied as to both parties. While CCP maintains that it would be able to prove at trial that there was no warranty for future performance of the gel coat, CCP argues that even if the jury were to conclude that the warranty did include " cracking after use and/or storage in cold climates by the end purchaser of the yachts," Plaintiffs have still failed to present sufficient evidence to prevail.

CCP argues that expert testimony is required to prove to the jury that 953 Series gel coat degrades over time and that this degradation caused the cracking at issue, but that Plaintiffs have failed to offer any admissible expert testimony on this issue. In fact, the entirety of CCP's argument in favor of summary judgment is based on the premise that Dr. Caruthers's testimony is inadmissible under Federal Rule of Evidence 702.8 However, the Court has held that the majority of Dr. Caruthers's testimony is admissible, particularly the testimony dealing with the formulation of the 953 Series gel coat, and the effects that the addition of adipic acid and the removal of a UV stabilizer would have on the long-term flexibility of the gel coat.9 See Viking, at 646, 2009 WL 1312867, at *7. In light of this testimony, a reasonable jury could certainly conclude that the cracking was caused by a breach of CCP's warranty.

By the same token, Plaintiffs argue that they are entitled to summary judgment because " [t]here is no evidence that the cracking was caused by anything other than the change in formula." 10 (Pl. Br. at 40.) They criticize the conclusions that Dr. Strong reached because he did not conduct any testing to determine the actual cause of the cracking. However, as with Dr. Caruthers's testimony, the Court has already determined the admissibility of Dr. Strong's testimony in a separate opinion. See Viking, 613 F.Supp.2d 637. Dr. Strong is being permitted to testify that he believes that " adipic acid is a logical choice of constituent monomer to increase the elongation of a polymer." (Strong Rep. at ¶ 89.) Additionally, Dr. Strong is being permitted to opine that " the cracking difficulties encountered in boats made by Viking and Post are not in the gel coat but, rather, in some factor beyond CCP's control." (Strong Rep. ¶ 91.) See Viking, at 641-45, 2009 WL 1323826, at *3-6 (permitting Dr. Strong to testify that the cause of the cracking was...

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