This section contains the nature of the case and procedural background.

P is a family-owned company that manufactures wooden doors and windows. D sells wood preservatives and coatings. From 1985 to 1988, P used D's wood treatment PILT (preservative in-line treatment) on P's doors and windows. PILT replaced the industry standard in wood preservatives, products containing pentachlorophenol (Penta). P had used Penta products successfully for years until environmental concerns were raised about the active ingredient. P sued D claiming that PILT had failed to prevent premature rot and decay. The district court dismissed or granted summary judgment to D on all counts. On appeal, the court remanded for trial P's claim for breach of an express warranty of future performance, having concluded that there remained genuine issues of material fact on the claim. P claimed that D represented that wood products treated with PILT would last as long or longer than Penta-treated products. The jury found that D had given P a warranty of future performance and that such warranty formed part of the basis of the bargain between the parties and was incorporated into their agreement. The jury found the warranty was breached and awarded $53.6 million for out-of-pocket costs, $25.2 million for past lost profits, $27 million for future lost profits; and $30 million for loss of goodwill. Both parties appealed. D claims in part that the Court erred when it declined to enforce a term that purports to limit damages to the price P paid for PILT, $1.6 million.

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