The opinion of the court was delivered by: Irenas, Senior District Judge
HONORABLE JOSEPH E. IRENAS
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).*fn1 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.
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.*fn2 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 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.*fn3*fn4 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.*fn5
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*fn6 , and his elimination of certain manufacturing causes that he specifically looked for and eliminated.*fn7
CCP will be offering Dr. A Brent Strong, who hold a Ph.D. in chemistry and 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 ¶ 67.) 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.)
"[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 ...