IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ECEM EUROPEAN CHEMICAL :

MARKETING B.V., : CIVIL ACTION

:

Plaintiff, : NO. 05-3078

 :

v. :

:

THE PUROLITE COMPANY, :

:

:

Defendant. :

OPINION

Slomsky, J. January 29, 2010

Before the Court are two Motions in limine filed by Plaintiff ECEM European Chemical

Marketing B.V. (“ECEM”) and three Motions in limine filed by Defendant The Purolite Company

(“Purolite”). Plaintiff seeks in the Motions in limine to (1) preclude evidence of Defendant’s alleged

damage estimates (Doc. No. 65) and (2) preclude evidence that Plaintiff was obligated to supply

Defendant with styrene, a chemical product, through March 2005 (Doc. No. 64). Defendant filed

Responses to these Motions (Doc. Nos. 66 and 67), and Plaintiff submitted a supplemental brief in

support of its Motion in limine to preclude evidence that Plaintiff was obligated to supply styrene

through March 2005 (Doc. No. 78). Defendant also filed a supplemental brief in opposition to

Plaintiff’s two Motions in limine (Doc. No. 80). 

In Defendant’s three Motions in limine, Defendant seeks to (1) exclude evidence of

settlement negotiations (Doc. No. 59); (2) bar the use of a document entitled: “Terms and Conditions

1
of Sale” (Doc. No. 60); and (3) to exclude evidence of prior negotiations leading up to the 2004

contract between the parties, and evidence that the 2004 contract was not accepted and binding (Doc

No. 61). Plaintiff filed Responses to these Motions (Doc. Nos. 70, 72, and 69). Thereafter,

Defendant filed a Reply Brief on Parol Evidence Issues (Doc. No. 73) covered in the Motion to

exclude the “Terms and Conditions of Sale” document and the Motion to exclude prior negotiations. 

Plaintiff also filed a supplemental brief in opposition to the Motion in limine to exclude evidence

of settlement negotiations (Doc. No. 82) and a supplemental brief in opposition to the Motions in

limine to exclude evidence of prior negotiations leading up to the 2004 contract and to exclude

evidence of the “Terms and Conditions of Sale” document (Doc. No. 81). Finally, Defendant filed

a supplemental brief in support of its three Motions in limine (Doc. No. 80). 

The Court held oral argument on the five Motions in limine on October 20, 2009. For the

reasons that follow, Plaintiff’s Motions in limine will be granted in part and denied in part, and

Defendant’s Motions in limine also will be granted in part and denied in part. 

I. STATEMENT OF FACTS 

Defendant Purolite is an international company with its principal place of business in the

United States. Defendant manufactures ion exchange resins and polymers which are used to remove

impurities from water and other liquid and gas media. Styrene Monomer is an essential ingredient

used in the manufacture of resins and polymers. Plaintiff ECEM, with its principal place of business

in the Netherlands, is a buyer and seller of industrial products such as styrene. Plaintiff purchases

styrene directly from a manufacturer and then sells it to an end user such as Defendant. 

Plaintiff and Defendant engaged in a series of agreements beginning in 2002 through which

Plaintiff supplied Defendant with styrene for use in Defendant’s production of resins and polymers. 

2
During the relevant time period, Plaintiff supplied the styrene by delivery in rail tank cars (“RTC”)

from Plaintiff’s supplier in Rotterdam, the Netherlands, to Defendant’s plant in Victoria, Romania. 

In December 2003, the parties began negotiations on an agreement for the year 2004. On

December 16, 2003, Defendant submitted its Purchase Order for 2004, which was accepted by

Plaintiff (“2004 Contract”). The 2004 Contract provided for a yearly delivery of 1200 tons of

styrene, with deliveries of approximately 100 tons per month via two RTCs, for arrival at

Defendant’s plant in Victoria, Romania, during the third week of the month. In March 2004, the

parties modified the 2004 Contract to require Plaintiff to deliver three (3) shipments of styrene per

month via RTC. The parties agreed that Plaintiff would keep the third railcar in service for one year

until March 2005, but the parties dispute whether the contract modification extended the entire

contract by three (3) months to March 2005. Via email, the parties agreed that if Plaintiff committed

to leasing a third rail tank car in March 2004 for twelve (12) months, Defendant would commit to

purchase styrene from Plaintiff using at least one rail tank car for that same period. 

This case arises from Defendant’s failure to pay for five shipments of styrene received in the

last quarter of 2004 for which payment was apparently due in late 2004 or the first quarter of 2005. 

Plaintiff filed this action in June 2005 seeking payment of principal, interest, and fees and costs

stemming from the five unpaid deliveries (Invoice Numbers 44247,44656, 44817, 44818, and

45046). The 2004 Contract provided that the delivery terms were “DDU Victoria,” which stands for

“Delivery Duty Unpaid,” Victoria, Romania. Under the DDU agreement, Plaintiff was required to

bear the costs and risks involved in bringing the goods to Victoria, Romania from Rotterdam, the

Netherlands. The 2004 Contract required under the provision for “Payment Terms” that payments

were due ninety (90) days from the date of invoice. Pursuant to the agreement, two (2) invoices were

3
to be issued by Plaintiff, (1) a pro forma invoice, which is generated for customs purposes when the

material is set to be shipped, and (2) a commercial invoice, which is provided to the customer after

delivery is made to the place of destination. Plaintiff maintains that Defendant consistently failed

to pay invoices within ninety (90) days of issuance in late 2004. Due to Defendant’s tardiness in

remitting payment, Plaintiff did not accept Defendant’s purchase order in December 2004 for the

2005 calendar year and did not ship styrene to Defendant after December 2004. 

Defendant maintains that based on the DDU term of the 2004 Contract, title to the styrene

did not pass until the materials reached Defendant’s plant in Victoria, Romania. The ninety (90) day

period for payment could not start, therefore, until the goods reached Victoria. Plaintiff does not

agree to this start date and argues that the ninety (90) day period began from the date of the initial

pro forma invoice, rather than the date of delivery. Based on Plaintiff’s claim, Defendant became

delinquent on five unpaid deliveries in late 2004. As noted, Plaintiff ceased styrene deliveries to

Defendant after December 2004, which Defendant submits was a breach of the 2004 Contract

modification which obligated Plaintiff to continue deliveries until March 2005. 

In ¶12 of Defendant’s Answer, Defendant raised the affirmative defense that “[ECEM] has

breached the agreement and is not entitled to the sum it demands, if any.” Defendant maintains that

it is not obligated to pay for the five (5) deliveries because Plaintiff failed to deliver two (2) RTCs

of styrene in November 2004, as required by the March 2004 Contract modification. In November

2004, Plaintiff shipped three (3) rail tank cars of styrene to Defendant. One shipment was sent on

November 9 and received in Victoria, Romania, on November 19 (RTC 288.6). Two additional rail

tank cars of styrene (RTC 613.4 and RTC 616.7) were shipped on November 25 and were

accidentally routed by the common carrier to another location. As a result, Defendant only received

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one (1) rail tank car of styrene at the Victoria plant for November. The misdirected shipment

allegedly caused Defendant’s styrene supply to be depleted on December 14, 2004. Plaintiff asserts

that it offered to compensate Defendant with road truck deliveries of styrene after the error in the rail

tank car shipment became apparent, but Defendant rejected this offer. 

The two rail tank cars containing styrene shipped on November 25 were finally received by

Defendant on December 21, 2004. Defendant alleges that after these untimely deliveries, Plaintiff

terminated the 2004 Contract with Defendant. According to Defendant, the parties subsequently

entered into settlement negotiations in order to avoid litigation. These discussions were ultimately

unsuccessful. 

Defendant has filed a counterclaim in this matter, asserting that Plaintiff failed to deliver two

rail tank cars of styrene until approximately one week after Defendant’s styrene supply had been

depleted. Defendant alleges that during this week, it could not produce polymers and resins it had

planned to produce on two of its nine production lines and suffered damages. Plaintiff maintains that

Defendant did not mention the alleged shut-down in production nor any alleged loss until Defendant

filed the counterclaim on February 8, 2006. 

II. DISCUSSION 

A. Plaintiff’s Motion in Limine to Preclude Evidence 

Of Defendant’s Alleged Damage Estimates. 

Plaintiff contends that the evidence and methodology of calculating Defendant’s alleged

damage claim should be precluded from evidence at trial. In December 2004, Defendant planned

to produce polymers and resins with styrene delivered by Plaintiff. However, Plaintiff failed to

timely deliver two rail tank cars of styrene. The styrene eventually arrived approximately one week

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after Defendant’s supply of styrene had been depleted, causing Defendant to cease polymer and resin

production until the styrene arrived at Defendant’s plant in Victoria, Romania. 

Defendant submits that its factories run 24 hours a day, 7 days a week, and that as a direct

result of the late delivery of styrene, it was forced to pay normal recurring costs for overhead which

did not result in production of resins or polymers and suffered a loss. Defendant describes the

methodology of its damage calculation as follows: 

Quite simply, Purolite prepares a “recipe” for each product that it

plans to make in a given year, which identifies in detail the

components of time and materials to produce that product. Overhead

costs are determined in the aggregate for each line item of cost for the

year. The capacity of Purolite’s plant has a defined limit for each

production line. Overhead costs are then allocated to products based

on the time and materials needed to produce that product. The total

of overheads per unit times the volume to be produced equals total

overhead absorbed in production. 

Thus, Purolite calculates its damages byidentifying each polymer and

resin that was scheduled to have been produced, and the quantity of

each polymer and resin that would have been produced, and

identifying the overhead per metric ton for each polymer and resin to

be produced. 

(Defendant’s Memo of Law in Opposition to Plaintiff’s Motion in Limine to Exclude Evidence of

Damages, 5.) Defendant asserts that this data is compiled utilizing the “standard cost” method of

accounting in accordance with generally accepted accounting principles established by the Financial

Accounting Standards Board. Using these principles, Defendant calculates that it incurred and lost

$498,131 in overhead to maintain the plant during the week it was not able to produce the polymers

and resins due to Plaintiff’s untimely delivery of styrene. In opposing this method of calculating

damages, Plaintiff argues that it fails to accuratelymeasure costs incurred or profits lost, and that this

calculation provides no reasonable certainty of the amount of damages sustained. 

6
 Under Pennsylvania law, evidence of damages may only be precluded from trial as

“speculative” if “the uncertainty concerns the fact of damages not the amount.” Carroll by Burbank

v. Phila. Hous. Auth., 650 A.2d 1097, 1100 (Pa. Cmmw. Ct. 1994) (emphasis added). “Damages

are considered remote or speculative only if there is uncertainty concerning the identification of the

existence of damages rather than the ability to precisely calculate the amount or value of damages.” 

Kituskie v. Corbman, 714 A.2d 1027, 1030 (Pa. 1998). Moreover, “overhead should be treated as

a part of gross profits and recoverable as damages.” Vitex Mfg. Corp. v. Caribtex Corp., 377 F.2d

795, 798 (3d Cir. 1967). 

Plaintiff argues that Defendant’s damage calculation is speculative because Defendant’s

method of calculating damages fails to accurately measure costs incurred or profits lost. Defendant

has stated, however, that it will produce at trial witnesses with personal knowledge of Purolite’s

business, expenses and accounting to explain its theory of damages. Based upon the methodology

offered by Defendant, there does not appear to be any uncertainty of the fact of damages. The

validity of Defendant’s damage calculation is a question of fact, and Plaintiff will be afforded the

opportunity to cross-examine Defendant’s witnesses on damages, to present its own witnesses, and

to assert arguments concerning alleged infirmities in Defendant’s damage calculation. Consequently,

Plaintiff’s Motion in limine (Doc. No. 65) will be denied. 

7
B. Plaintiff’s Motion in Limine to Preclude Evidence and/or 

Testimony That Plaintiff Was Obligated to Supply Defendant 

With Styrene Through March 2005. 

1. Defendant Has Raised This Claim and/or Defense Timely.

Plaintiff argues that the first time Defendant claimed that the 2004 Contract between the

parties was modified in March 2004 to extend the contract date by three (3) months was in the

Response to Plaintiff’s Motion for Partial Summary Judgment (Doc. No. 39). Plaintiff contends that

Defendant has never requested discovery regarding this claim or defense, nor has Plaintiff had the

opportunity to seek discovery regarding this claim or defense. As such, Plaintiff argues that

Defendant has waived this claim and seeks to preclude evidence on this alleged contract

modification, which would have required Plaintiff to supply Defendant with styrene through March

2005. 

Defendant maintains that the March 2004 contract modification and the alleged extension

were discussed during the deposition of Matthew Rigby, Plaintiff’s Managing Agent, which took

place during discovery in August 2007. Defendant submits that Mr. Rigby’s testimony confirmed

that the March 2004 contract modification placed a third rail tank car in service, and that the third

rail tank car would remain in service to supply monthly styrene deliveries to Defendant until March

2005. Mr. Rigby’s deposition testimony provides, in part, as follows: 

Q. Okay. And the modification was that ECEM would now

provide a third railcar, which would provide three railcars per

month, and in return Purolite would commit to an extra year

from March of 2004; isn’t that correct?

**[objection by counsel]**

A. I understand. It’s an extra year on this one railcar. For the

other two railcars, it was finished on 31 December, 2004. st

8
Rigby Dep., 163:24-164:20. Moreover, Defendant points out that Mr. Rigby explained on March

12, 2004, in an email to Brian Wareham, Defendant’s Materials Manager, the new contract

provisions. 

I can now formally confirm we have made arrangements to put a third

rail car into service for delivering styrene to you. Our guys will

manage this along with the other two and it will mean we should be

able to get up to three rail cars delivered every month (in other words

up to 174 mt per month). We expect the new rail car to be in service

the first week of April. 

As discussed we have to take a year contract on these rail-cars so

certainly for this one at least the volume will keep coming through to

the end of Q1 2005. 

Thank you for giving us the opportunity to extend our contract. I

believe the rail-cars have worked very well so far this year and can

only expect they will continue to do so.

Finally, Defendant contends that the Answer, filed February 8, 2006, specifically raised the

affirmative defense that “Plaintiff breached the agreement and is not entitled to the sum it demands,

if any.” (Defendant’s Answer, ¶12.) Although this defense is vague as to its specific claim, the

Court still finds that Plaintiff was adequately on notice of the claim or defense in question based on

a combination of Defendant’s Answer, Mr. Rigby’s deposition testimony and the email

correspondence between Mr. Rigbyand Mr. Wareham, and that it was timely asserted byDefendant. 

2. Evidence Of the Contract Extension Is Relevant But 

 Will Be Limited Under Federal Rule Of Evidence 403. 

Next, Plaintiff argues that admission of evidence that Plaintiff was obligated to provide

Styrene through March 2005 should be precluded pursuant to Federal Rule of Evidence 403. Before

a court determines if evidence should be precluded on the basis of Rule 403, the evidence must be

deemed relevant pursuant to Federal Rule of Evidence 401 and admissible under Rule 402. These

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rules apply even when a court finds that a claim, and evidence in support of it, has been timely raised

as occurred here. 

Under Rule 401, “relevant evidence” is defined as “evidence having any tendency to make

the existence of any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” Under Rule 402, all relevant evidence is

admissible, barring an exception to the rules. “The definition of relevant evidence is very broad,”

and “Rule 401 does not raise a high standard.” Gibson v. Mayor of Wilmington, 355 F.3d 215, 232

(3d Cir. 2004) (quotation omitted). 

In this case, Plaintiff seeks recovery from Defendant based on the alleged breach of the 2004

Contract consisting of failure to make timely payments on five (5) shipments of styrene. Defendant

asserts in the counterclaim and as an affirmative defense that Plaintiff’s termination of the 2004

Contract and subsequent failure to deliver styrene through March 2005 constitute breaches for which

Defendant may recover. That the contract was allegedly modified and extended in March 2004 is

relevant to the claims of both parties. 

Despite being relevant, however, evidence may be excluded under Rule 403. Rule 403

provides: “Although relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” 

“Rule 403 recognizes that a cost/benefit analysis must be employed to determine whether or not to

admit the evidence.” Coleman v. Home Depot, Inc., 306 F.3d 1333, 1343 (3d Cir. 2002). “In

balancing, ‘the proper equation places on one side the maximum reasonable probative force for the

10
offered evidence,’ while ‘the other side of the equation should include the likely prejudicial impact

of the evidence.’” Id. at 1344 (citation omitted). As such, “evidence may be excluded if its probative

value is not worth the problems that its admission may cause.” Id. at 1343. 

Relevant evidence should only be precluded under Rule 403 if it is unfairly prejudicial to a

party, not merely because it is harmful to a party. As the Third Circuit has noted: “Evidence should

be excluded under Rule 403 only sparingly since the evidence excluded is concededly probative. 

The balance under the rule should be struck in favor of admissibility.” Blancha v. Raymark Indus.,

972 F.2d 507, 516 (3d Cir. 1992) (citation omitted). 

As noted at the hearing on the Motions in limine, evidence that Plaintiff breached the 2004

Contract because it failed to deliver styrene to Defendant through March 2005 will not be allowed

at trial under the balancing test of Rule 403. Plaintiff’s failure to actually supply styrene through

March 2005 is not a central issue in this case. Instead, the crux of Defendant’s claim involves the

failure of Plaintiff to timely deliver two (2) RTCs of styrene in November 2004. The crux of

Plaintiff’s claim is the failure of Defendant to timely pay for shipments of styrene sent in the last

quarter of 2004. The probative value of evidence that Plaintiff stopped making a rail shipment of

styrene after December 2004 under the agreement extended to March 2005 is substantially

outweighed by the fact that it will confuse the issues, unduly delay testimony on critical issues in the

case, and cause undue prejudice. 

However, proof that the contract was extended to March 2005, without any reference to

Plaintiff breaching the 2004 Contract by failing to deliver styrene through March 2005, is admissible

for two reasons. First, it supports Plaintiff’s argument as to whyPlaintiff used the third rail tank car. 

11
Second, it supports Defendant’s claim that it was not in breach of the 2004 Contract in January 2005

for failure to pay the invoices because Plaintiff’s invoicing procedures were not in accord with the

terms of the 2004 Contract. (See Trans. Oct. 20, 2009 Oral Arg. at 57:2-59:14.) Evidence of the

contract extension to March 2005 is relevant only for these reasons and, as such, does not violate

Rule 403. Accordingly, Plaintiff’s Motion in limine (Doc. No. 64) will be granted in part and denied

in part. 

C. Defendant’s Motion in Limine to Exclude 

Evidence Of Settlement Negotiations. 

As noted, Plaintiff filed this lawsuit against Defendant for failure to pay several invoices in

2004. Defendant raised a counterclaim against Plaintiff for failure to timely deliver two (2)

shipments of styrene in November 2004. In this Motion in limine, Defendant asserts that after

Plaintiffterminated the 2004 Contract in January2005, the parties engaged in settlement negotiations

to resolve their disputes. Defendant submits that Plaintiff should be precluded from offering

evidence that during these settlement negotiations, Defendant “acknowledged its debt and

represented its intention to pay all of the invoices in full.” (Pl. Pre-Trial Memorandum, 4.) The

evidence of settlement negotiations consists almost entirely of email correspondence from January

2005 to June 2005 between the parties and internal emails within Purolite. Defendant seeks to

exclude the emails under Federal Rule of Evidence 408. Plaintiff contends, however, that the 1

content of these emails does not constitute “settlement negotiations” but rather business negotiations

“regarding when and how the amount due would be paid by [Defendant].” (Id. at 6.) 

These exhibits have been marked as P-11, P-12, P-13, P-14, P-16, P-17, P-66, P-69, P1

70, P-72, P-73, P-74, P-77, and P-87. 

12
Federal Rule of Evidence 408, entitled “Compromise and Offers to Compromise,” provides

as follows: 

(a) Prohibited Uses. Evidence of the following is not admissible on

behalf of any party, when offered to prove liability for, invalidity of,

or amount of a claim that was disputed as to validity or amount, or to

impeach through a prior inconsistent statement or contradiction: 

(1) furnishing or offering or promising to furnish - or accepting or

offering or promising to accept - a valuable consideration in

compromising or attempting to compromise the claim; and 

(2) conduct or statements made in compromise negotiations regarding

the claim, except when offered in a criminal case and the negotiations

related to a claim by a public office or agency in the exercise of

regulatory, investigative, or enforcement authority.

Rule 408 applies to “evidence concerning settlement or compromise of a claim, where the

evidence is offered to establish liability, or the validity or amount of the claim.” Affiliated Mfrs.,

Inc. v. Aluminum Co. of Am., 56 F.3d 521, 526 (3d Cir. 1995). There must exist “at least an

apparent difference of view between the parties concerning the validity or amount of a claim.” Id. 

Rule 408 only applies to an “actual” dispute, which includes both threats of litigation and less formal

stages of contention. Onal v. PB Amoco Corp., 134 Fed. App’x 515, 518 (3d Cir. 2005) (denying

the Motion in limine because no actual dispute between the parties existed during the relevant

period). 

To trigger the Rule 408 prohibition, there must be an actual “dispute regarding the validity

or amount of the claim and some form of compromise as to that dispute.” Tsudis Chocolate Co. v.

FGH Consulting USA, Inc., No. 07-1574, 2008 WL 4272651, *1 (W.D. Pa. Sept. 11, 2008) In

Tsudis, the District Court held that the party seeking to preclude evidence of alleged settlement

negotiations under Rule 408 failed to prove that the documents reflected a dispute as to the validity

13
or amount of the claim. The court found that the evidence merely reflected the moving party’s

admission of the amount due and owing, and an attempt to renegotiate the payment deal. Id. 

Here, Plaintiff similarly argues that there was neither a dispute at the time of the parties’

discussions nor some form of compromise. Instead, the email correspondence of early 2005 (the

documents sought to be precluded by Defendant) merely shows Defendant’s intention to pay all

unpaid invoices in full and contains discussions of when the invoices will be paid, rather than a true

claim for damages or a compromise regarding a dispute. As in Tsudis, Plaintiff asserts that

Defendant does not dispute the amounts due, and the documents sought to be precluded merely

reflect an attempt to renegotiate the deal between the parties. 

Plaintiff supports its argument byciting the Rule 408 AdvisoryCommittee note,which states,

“The policy considerations which underlie the rule do not come into playwhen the effort is to induce

a creditor to settle an admittedly due amount for a lesser sum.” Moreover, “an admission of liability

made during negotiations concerning the time of payment and involving neither the validity nor

amount of the claim is not within [Rule 408's] exclusionary protection.” 2 Jack Weinstein &

Margaret Berger, Weinstein’s Evidence § 408.06, 408-25 (2009). 

Here, contrary to Plaintiff’s contentions, an actual dispute existed in late 2004 and early 2005

beyond mere business discussions over the payment timetable. Actual disputes between the parties

included, inter alia, Defendant’s failure to pay several invoices, Defendant’s contention regarding

improper invoicing by Plaintiff, Plaintiff’s failure to provide Defendant with three (3) rail tank cars

of styrene in November 2004, Plaintiff’s rejection of Defendant’s contract proposal in December

2005, and Plaintiff’s alleged premature termination of the 2004 Contract. While threats of litigation

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need not be present for Rule 408 to apply, the dispute at issue here even broached the subject of

litigation, as seen in Brian Wareham’s December 10, 2004 email. 

This is unacceptable, we know that these RTC’s have been in Ploesti

since December 2 . To put it politely, Schenker need [sic] to pull nd

their finger out and make things happen. We have maximum one

weeks’ [sic] styrene left. If, in the circumstances, we run out of

material a considerable compensation claim will be lodged with

whoever is responsible for the delay in sorting out this situation.

As further evidence of a material dispute between the parties, Defendant produced a January

7, 2005 email from Matthew Rigby to Brian Wareham: 

You are aware that there are quite a few invoices outstanding now

and though I did try to contact you before Christmas to discuss these

you had already left. Some of these invoices are very overdue and we

consider the situation to be very serious. 

I confirm that I have put a block on any further styrene deliveries to

your plant until we are up to date with payments. 

We really mustn’t let the payment issue spoil this deal. We are set up

to supply your styrene requirements this year as per our agreement but

you have to have to [sic] keep your side of the bargain and pay on

time. 

Additionally, Defendant offers testimony from Brian Wareham’s deposition: 

Q. . . . I’m asking the witness, who says that this was his area of

responsibility, as to whether he has a recollection that there

were unpaid invoices. 

A. When you say “unpaid,” you mean overdue?

Q. Yes. 

A. Well, there were invoices which [Rigby] claimed were

overdue, yes. 

Q. Did you disagree with him?

A. On some of them, yes. 

15
Q. But not all of them?

A. I don’t remember specifics, but not on all of them, no. 

Q. And did you ever tell [Rigby] that you disagreed that they

were overdue?

A. I believe so. . . . I believe I did point out to him, yes, that

some of [the invoices] were not overdue. 

(Wareham Dep., 50:6-51:5.) 

It is clear that a dispute existed in and after January 2005, as evidenced by the emails and

deposition testimony, and the exchange of emails during this period reflect attempts to resolve the

dispute. Moreover, when viewed in the totality, the emails do not suggest that Defendant was simply

attempting to renegotiate its deal or payment terms with ECEM for a debt with an agreed upon

amount. Consequently, the provisions of Rule 408 apply here, not the holding in Tsudis. 

Rule 408 is to be construed to effectuate its purpose of encouraging freedom of discussion

with regard to compromise. Further, as the Tenth Circuit noted, “when the issue is doubtful, the

better practice is to exclude evidence of compromises or compromise offers.” Bradbury v. Phillips

Petroleum Co., 815 F.2d 1356, 1364 (10th Cir. 1987). Accordingly, Defendant’s Motion in limine

(Doc. No. 59) will be granted. Exhibits P-11, P-12, P-13, P-14, P-16, P-17, P-66, P-69, P-70, P-72,

P-73, P-74, P-77, and P-87 are inadmissible under Rule 408 because the email correspondence

reflects concessions made by Defendant during settlement negotiations of an ongoing actual dispute

between the parties. 

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D. Defendant’s Motion in Limine to Bar Evidence 

Of ECEM’s “Terms and Conditions of Sale.”

Defendant seeks to prevent Plaintiff from offering at trial a document entitled “General

Terms and Conditions of Sale” (“GTCS”) on the basis that it is extrinsic parol evidence not part of

the 2004 Contract. The document contains fourteen (14) Articles and bears at the top the following

language:

General Terms and conditions of Sale at ECEM EUROPEAN

CHEMICAL MARKETING B.V. (a private company with limited

liability, with its registered office in Amsterdam) As deposited with

the District Court at Amsterdam under No. 105 on May 1 , 1981 st

As filed with the Chamber of Commerce and Industry in Amsterdam. 

The GTCS, inter alia, provides Plaintiff with the right to recover statutory interest plus an

additional 4% upon Defendant’s failure to pay an invoice, and the GTCS provides recovery of all

fees and costs incurred by Plaintiff in pursuing payment. Plaintiff claims that the invoices for 2

payment sent to Defendant made reference to the GTCS. Plaintiff also claims that the goods

delivered contained the same reference. (Pl. Resp. to Def. Mot. in Limine to Preclude Evidence of

the Terms and Conditions of Sale, 2.) Although an invoice does not appear in the record, the Court

will accept the accuracy of this allegation for the purposes of this argument. 

As noted, the 2004 Contract contained the following provisions, inter alia: (1) all 2

deliveries were to take place “for arrival in Victoria during the 3rd week of the month” and (2) all

shipments were designated as “DDU Victoria.” Defendant argues that the GTCS contains terms

that contradict these two provisions of the 2004 Contract. The GTCS provides that Plaintiff will

not be liable for a delayed delivery except for “intent or gross error,” and that “goods shall in all

cases be transported at buyer’s risk,” which contrasts with the general DDU principle that the

seller retains the risk of loss until delivery is completed. 

17
1. Parol Evidence Issues.

Defendant contends that the 2004 Contract represents the entire agreement between the

parties, and the GTCS is inadmissible to vary, alter or modify the terms of the 2004 Contract. 

Defendant claims that Plaintiff never advised Defendant that the GTCS could modify the terms of

the 2004 Contract, nor was the GTCS attached to the 2004 Contract. Instead, according to

Defendant, Plaintiff’s Complaint establishes that the 2004 Contract was a complete and final 

expression of the parties’ intent: 

On or about December 16, 2003 Purolite placed on ECEM Purchase

Order V07/103 for the delivery of approximately 100 metric tons per

month, or 1200 metric tons per year, of styrene monomer at an

agreed-upon price. On or about the same date, in writing and through

its actions of sale and delivery, ECEM confirmed the order, thus

creating a binding and enforceable contract. 

(Plaintiff Complaint, ¶5.) Plaintiff maintains, however, that the GTCS is a portion of the contract

between the two parties. Each shipment of styrene sent to Defendant, beginning in 2002, contained

an invoice for payment which expressly incorporated the GTCS. Plaintiff submits that Defendant’s

practice was to approve each invoice in writing, and during the three-year relationship between the

parties, Defendant consistentlyaccepted the goods and invoices, each of which contained a reference

to the GTCS. 

The United Nations Convention on Contracts for the International Sale of Goods (“CISG”)

controls this case. The CISG governs all contracts for the sale of goods between parties whose

principal places of business are in different nations if those nations are signatories to the treaty. B.P.

Oil Int’l, Ltd. v. Empresa Estatal Petroleos de Ecuador, 332 F.3d 333, 336 (5th Cir. 2003); CISG,

18
art. 1. Here, both the United States, where Defendant maintains its principal place of business, and 3

the Netherlands, where Plaintiff maintains its principal place of business, are signatories to CISG. 

The central dispute in this Motion in limine is whether CISG adopts the American parol

evidence rule which prohibits the introduction of extrinsic evidence that varies, alters or modifies

the terms and conditions of a subsequent or contemporaneous written document. Hershey Foods

Corp. v. Ralph Chapek, Inc., 828 F.2d 989, 994 (3d Cir. 1987) (describing the parol evidence rule);

Martin v. Monumental Life Ins. Co., 240 F.3d 223, 233 (3d Cir. 2001) (“If parties have integrated

their agreement into a single written memorial, all prior negotiations and agreements in regard to the

same subject matter, whether oral or written, are excluded from consideration.”). CISG itself

contains no express statement on the role of the parol evidence rule. Plaintiff suggests that the few 4

courts that have addressed this issue have found that CISG requires all relevant evidence of the

parties’ intent to be admitted to interpret the terms of the agreement even if the evidence contradicts

a written document. Defendant argues, to the contrary, that the 2004 Contract is the only permissible

evidence concerning the parties’ intent and that parol evidence is barred. 

Article 8 of CISG governs the interpretation of international contracts for the sale of goods,

and the dispute over the application of this provision is critical to a decision on this Motion. Article

8 provides as follows: 

Article 1 of CISG states in relevant part: 3

(1) This Convention applies to contracts of sale of goods between parties whose places of

business are in different States: 

(a) when the States are Contracting States...

Article 7(2) of CISG states as follows: “Questions concerning matters governed by this 4

Convention which are not expressly settled in it are to be settled in conformity with the general

principles on which it is based or, in the absence of such principles, in conformity with the law

applicable by virtue of the rules of private international law.” 

19
(1) Forthe purposes of this Convention statements made by and other

conduct of a party are to be interpreted according to his intent where

the other party knew or could not have been unaware what that intent

was. 

(2) If the preceding paragraph is not applicable, statements made by

and other conduct of a party are to be interpreted according to the

understanding that a reasonable person of the same kind as the other

party would have had in the same circumstances.

(3) In determining the intent of a party or the understanding a

reasonable person would have had, due consideration is to be given

to all relevant circumstances of the case including the negotiations,

any practices which the parties have established between themselves,

usages and any subsequent conduct of the parties. 

Plaintiff contends that Article 8 of CISG requires consideration of the communications and

negotiations of the parties when determining their intent and the terms of the agreement. Plaintiff

relies heavily on MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D’Agostino, S.P.A., an

Eleventh Circuit case involving a contract dispute governed by CISG, for the proposition that the

parol evidence rule does not apply in actions involving CISG. 144 F.3d 1384 (11th Cir. 1998). In

that case, the purchaser and seller reached an oral agreement on the terms of price, quality, quantity,

delivery and payment. Subsequently, the parties memorialized these terms on one of seller’s

standard, pre-printed forms. After the buyer initiated a breach of contract claim stemming from the 

seller’s failure to satisfy orders, seller argued that it had no obligation to fill purchaser’s orders

pursuant to the default payment provision listed on the back of the pre-printed form. The buyer

asserted that the parties never intended for the terms and conditions printed on the reverse side of

the order form to apply to their agreements. The buyer provided affidavits explaining that it had no

subjective intent to be bound by the terms even though a provision directly below the signature line

expressly incorporated those terms. 

20
The court held in MCC that the district court erroneously disregarded the affidavits showing

the parties’ subjective intent not to be bound by certain terms and conditions of the contract. The

court found that “CISG appears to permit a substantial inquiry into the parties’ subjective intent,

even if the parties did not engage in any objectively ascertainable means of registering this intent.” 

Id. at 1387. This finding was based on the court’s interpretation of Article 8(1) of CISG, which

requires an inquiry into a party’s subjective intent “where the other party knew or could not have

been unaware what that intent was.” Art. 8(1). Further, Article 8(3) explains that all relevant

circumstances must be considered when determining the intent of the parties. Consequently, the

interplaybetween Articles 8(1) and 8(3) suggests that parol evidence that would reveal the subjective

intent of the parties must be admitted. 

Here, Defendant argues that Article 8(1) is not the applicable CISG provision because

Defendant was objectively unaware of Plaintiff’s intent to incorporate the GTCS into the 2004

Contract. For this reason, Defendant claims that MCC is factually distinguishable from the present

matter. Instead, Defendant asserts that this case is governed by the interplay of Articles 8(2) and 8(3)

of CISG, which requires the Court to base its decision on objective, rather than subjective, evidence

of the conduct of the parties. 

5

Defendant relies predominantly on Beijing Metals & Minerals Import/Export Corp. v. 5

American Business Center, Inc. for the proposition that the parol evidence rule prohibits a buyer

from introducing evidence of alleged oral agreements to alter the terms of the written agreement. 

993 F.2d 1178, 1183-84 (5th Cir. 1993). In Beijing Metals, the court ruled in a footnote that the

parol evidence rule applies regardless of whether Texas law or CISG governed the dispute. Id. at

1184 n.9. The court did not employ any analysis of CISG jurisprudence and the relation of the

parol evidence rule. Accordingly, the Court does not consider Beijing Metals particularly

persuasive on this point.

21
Regardless of whether Article 8(1) or 8(2) is applicable to this matter, the Court is persuaded

that CISG allows all evidence of the parties’ intent to be admitted to interpret the terms of the

agreement. In other words, Article 8(3) requires due consideration to be given to all relevant

circumstances regardless of whether Article 8(1) or 8(2) applies. See Miami Valley Paper, LLC v.

Lebbing Eng’g & Consulting GmbH, No. 05-702, 2009 U.S. Dist. LEXIS 25201, *12 (S.D. Ohio 

Mar. 26, 2009) (citing Article 8(2) for the proposition that “CISG contains no parol evidence rule,

but allows the Court to consider statements or conduct of a contracting party to establish, modify,

or alter the terms of a contract”); Calzaturificio Claudia s.n.c. v. Olivieri Footwear Ltd., No. 96-

8058, 1998 U.S. Dist. LEXIS 4586, *18 (S.D.N.Y. Apr. 6, 1998) (“[C]ontracts governed by the

CISG are freed from the limits of the parol evidence rule and there is a wider spectrum of admissible

evidence to consider in construing the terms of the parties’ agreement.”); TeeVee Toons, Inc. v.

Gerhard Schubert GmbH, No. 00-5189, 2006 U.S. Dist. LEXIS 59455, *22 (S.D.N.Y. Aug. 22,

2006) (finding that unlike American law, the CISG has no parol evidence rule). 

 “Consequently, the standard UCC inquiry regarding whether a writing is fully or partially

integrated has little meaning under the CISG and courts are therefore less constrained by the ‘four

corners’ of the instrument in construing the terms of the contract.” Calzaturificio, 1998 U.S. Dist.

LEXIS 4586, at *19. Accordingly, the Court will not preclude extratextual evidence of negotiations

or agreements, such as the GTCS and email communications, made prior to the 2004 Contract

pertaining to the scope of the parties’ rights and obligations under it. Another pertinent provision 6

Plaintiff also cites to Article 11 of CISG to support the argument that CISG rejects the 6

parol evidence rule outright. Article 11 states as follows: “A contract of sale need not be

concluded in or evidenced by writing and is not subject to any other requirement as to form. It

may be proved by any means, including witnesses.” See Larry A. Dimatteo, An International

22
of CISG is Article 9, which states: “The parties are bound by any usage to which they have agreed

and by any practices which they have established between themselves.” Art. 9(1). Consequently,

Defendant’s Motion in limine to preclude parol evidence of the GTCS will be denied.

2. Judicial Admission and Judicial Estoppel.

Next, Defendant argues that under the doctrines of judicial estoppel and judicial admission,

Plaintiff is barred from introducing any evidence to prove that the 2004 Contract was not accepted

in its entirety, or that the 2004 Contract is subject to the GTCS. “Judicial estoppel requires (1) a

clear inconsistency and (2) that the party estopped obtain an unfair advantage from that

inconsistency.” Teleglobe Commc’ns Corp. v. BCE, Inc., 493 F.3d 345, 377 (3d Cir. 2007). Under

judicial estoppel, a party is barred from adopting conflicting positions in a legal proceeding. 

Likewise, under the doctrine of judicial admission, statements of fact made by one party in pleadings

and stipulations are binding on that party. Nasim v. Shamrock Welding SupplyCo., 563 A.2d 1266,

1267 (Pa. Super. Ct. 1989).

Here, Defendant maintains that Plaintiff stated in the Complaint that the 2004 Contract was

accepted by Plaintiff and that it constitutes a “binding and enforceable contract.” (Pl. Compl. ¶5.)7

Contract Law Formula: The Informality of International Business Transactions Plus the

Internationalization Of Contract Law Equals Unexpected Contractual Liability, 23 Syracuse J.

Int’l L & Com. 67, at 109 (1997) (“The CISG’s lack of a writing requirement allows all relevant

information into evidence even if it contradicts the written documentation.”) 

¶5 of Plaintiff’s Complaint states in its entirety:

7

On or about December 16, 2003 Purolite placed on ECEM Purchase Order

V07/103 for the delivery of approximately 100 metric tons per month, or 1200

metric tons per year, of styrene monomer at an agreed-upon price. On or about

the same date, in writing and through its actions of sale and delivery, ECEM

confirmed that order, thus creating a binding and enforceable contract. 

23
Consequently, Defendant argues that Plaintiff should be barred from introducing any evidence that

the 2004 Contract did not represent the entire agreement because Plaintiff is bound by its pleading. 

Plaintiff contends that the Complaint does not conflict with the proposition that extrinsic

evidence, including negotiations, communications, and the GTCS as discussed above, must be used

to interpret the terms of the contract. The Court agrees and is persuaded that Plaintiff is not offering

conflicting arguments that should be precluded under judicial estoppel or judicial admission. In the

Complaint, Plaintiff did not express that the 2004 Contract was the full and complete Contract. 

Rather, Plaintiff contends that the 2004 Contract, coupled with “its actions of sale and delivery,”

constitutes the Contract in full. Because there is no clear inconsistency in Plaintiff’s argument,

Defendant’s Motion in limine (Doc. No. 60) to preclude evidence of the GTCS under judicial

estoppel or judicial admission will be denied. 

E. Defendant’s Motion in Limine to Bar Evidence Of Prior 

Negotiations Leading Up To the 2004 Contract, and to Bar 

Evidence That the 2004 Contract Was Not Accepted and Binding.

Similar to the previous Motion in limine, Defendant seeks to preclude Plaintiff from

introducing parol evidence consisting of negotiations prior to the execution of the 2004 Contract,

including, inter alia, (1) there was no requirement of styrene deliveryon the third week of the month;

(2) there was no requirement to deliver three RTCs per month; and (3) Plaintiff is absolved of

liability through the offer to provide road-truck delivery of styrene after two shipments were

erroneously sent to a different purchaser in late 2004. Defendant also argues that Plaintiff may not

introduce evidence that the 2004 Contract was not accepted or that it is not binding and enforceable. 

Defendant rests on the same arguments offered in the Motion in limine to preclude evidence of the

GTCS. For the foregoing reasons, as described in Section II, D of this Opinion, the Court is not

24
persuaded that the evidence noted above by Defendant of prior negotiations leading up to the 2004

Contract should be barred, and Defendant’s Motion in limine (Doc. No. 61) will be denied. 

III. CONCLUSION

For the foregoing reasons, the Court will grant in part and deny in part Plaintiff ECEM’s

Motions in limine and grant in part and deny in part Defendant Purolite’s Motions in limine. A

separate Order for each Motion follows. 

25