022833P.pdf   03/23/2005  Marvin Lumber  v.  PPG Industries
   U.S. Court of Appeals Case No:  02-2833
                          and No:  02-2869
   District of Minnesota   
   Civil Case - diversity - breach of express warranty of future 
   performance. Award against (PPG), manufacturer of wood preservatives 
   and coatings, for breach of express warranty is affirmed in part and 
   reversed in part. District court's grant of judgment as a matter of law on 
   issue of notice is affirmed, as no reasonable jury could have found 
   (Marvin), millwork product manufacturer, knew or should have known 
   the problems were a result of PPG's product; Marvin notified PPG within 
   a reasonable time; and notice was adequate. Limitation of liability on 
   acknowledgment form was a material alteration that resulted in both 
   hardship and surprise and is not enforceable. Record does not support 
   damages awards for both lost goodwill and future lost profits; award of 
   goodwill damages are vacated. Damages for lost profits, past and future, 
   are supported by the record. District court did not abuse its discretion in 
   admitting expert statistician testimony to support breach and causation. 
   District court did not abuse its discretion in giving equitable estoppel 
   instruction. Declination of preverdict interest was error and Marvin is 
   entitled to preverdict interest on all pecuniary damages except future 
   profits from the inception of the litigation. J. Beam dissents in preverdict 
   interest issue. J. Bye dissents on lost goodwill damages issue. 
   [PUBLISHED] [Bowman, Author, with Bye and Beam, Circuit Judges]