Full opinion text
MEMORANDUM OF DECISION MARGOLIS, United States Magistrate Judge. On November 2,1990, plaintiff Omega Engineering, Inc. [“Omega”] commenced this action against Eastman Kodak Company and Ultra Technologies, Inc. [collectively “Kodak”]. On April 13, 1995, Omega filed its Third Amended Complaint (Dkt.# 246), alleging breach of contract (Count One), breach of covenant of good faith and fair dealing (Count Two), promissory estoppel (Count Three), breach of warranty regarding shelf life (Count Four), breach of warranty regarding leakage (Count Five), fraud (Count Six), negligent misrepresentation (Count Seven), Lanham Act violations (Count Eight) and violation of Connecticut Unfair Trade Practices Act (Count Nine). On May 12,1995, Kodak filed its Answer to the Third Amended Complaint (Dkt.# 247), setting forth eight affirmative defenses and asserting counterclaims for breach of contract (First Counterclaim) and restitution or unjust enrichment (Second Counterclaim). On December 1, 1995, then Chief Judge Peter C. Dorsey granted summary judgment in favor of defendants on Counts One and Two. As to Count One alleging breach of contract for an alleged requirements contract, Judge Dorsey held that the Statute of Frauds was not satisfied insofar as “[n]o writing that might bind Kodak contains such a quantity term.” Omega Eng’g, Inc., v. Eastman Kodak Co., 908 F.Supp. 1084, 1090 (D.Conn.1995). As to. Count Two alleging breach of the duty of good faith and fair dealing, Judge Dorsey held that “[b]eeause [the requirements contract in Count One] is unenforceable, it is not a basis for applying the duty of good faith and fair dealing to the Ultralife transactions.” Id. at 1091. On December 21, 1995, the case was referred to this Magistrate Judge for trial and all pending motions. (Dkt. # 282. See also Dkt. # 297, Table 18 & 12/16/96 endorsement thereon). On September 9, 1996, a court trial was commenced and continued through thirteen court days, concluding on September 27, 1996. (Dkt.## 298-306, 310-28). On January 15, 1997, a briefing conference was held in which deadlines for post-trial submissions were agreed upon. (Dkt.# 329). On June 3, 1997, Omega filed its post-trial brief and proposed findings of fact and conclusions of law. (Dkt. ## 333 & 334). On August 8, 1997, Kodak filed its own post-trial brief and proposed findings of fact and conclusions of law. (Dkt. ## 336 & 337). In a letter to the Court dated September 4, 1997, Omega advised the Court that it “elected not to file a reply trial brief [insofar as] all issues and arguments raised by Kodak in its trial brief have been addressed by Omega in its previous submissions.” For the reasons stated below, judgment shall enter for defendant Kodak on Omega’s Complaint and for Kodak on its Counterclaim in the amount of $36,720. I. FINDINGS OF FACT The following constitutes the Court’s findings of fact, pursuant to Fed. R. Civ. P. 52(a): Omega is a seller of scientific measurement and control instruments located in Stamford, Connecticut; the company was founded in 1962 by Mrs. Betty Hollander. (9/20/96 Tr. at 93, 96). Today, Omega has 1,000 employees and sells more than 60,000 different products, primarily measurement and control instruments. (9/25/96 Tr. at 96). Omega markets a wide variety of hand-held meters and instruments that operate utilizing 9-volt batteries which Omega supplies to its customers at no additional charge. (9/17/96 Tr. at 8-10; Exh. 127). Kodak is a well-known manufacturer of photographic products employing thousands of people worldwide. (Dkt. # 297, Tab 5, ¶ 1). A DEVELOPMENT AND INITIAL PROMOTION OF ULTRALIFE BATTERY In 1984, Kodak authorized Venture Project Delta to develop a consumer 9-volt lithium battery [the “Ultralife” or “U9VL”]. Venture Project Delta eventually was renamed Ultra Technologies, Inc. and in its infancy its staff primarily consisted of the following people: James Moxley, president; Marty Adams, marketing; Paul Desborough, finance; Peter Clark and Hank Heirigs, technical support. (9/9/96 Tr. at 16-22, 37-39. See also Exhs. 2-3, 5-6, 637). Kodak’s facility in Newark, New York was comprised of 218 acres and several buildings which contained offices, research and development facilities and a storage and warehousing complex. (9/9/96 Tr. at 35-37; 9/10/96 Tr. at 42). On May 22, 1986, Kodak announced its entry into the consumer battery business at a press conference at New York’s World Trade Center. (9/9/96 Tr. at 59-60, 62; Exh. 8; see also Exhs. 9-11, 13-14, 737-38, 748, 751). In attendance at the press conference were Kodak Executive Officer William Prezzano, Kodak Corporate Communications Executive R.S. Bartlett; Ultra Technologies representatives Moxley, Clark, Adams, and Heirigs; and media representatives from print, radio and television. (9/9/96 Tr. at 60-62; Exh. 8, at 1). Besides the Ultralife 9-volt lithium battery, Kodak’s battery product line included alkaline batteries, known as the Supralife, which Kodak did not manufacture itself. (Exhs. 9-11 & 15). The press announcement script indicated that Kodak had “perfected an interconnect cover.” (Exh. 8, at 10 (emphasis in original); see also 9/9/96 Tr. at 63-64). The script also stated that “lithium cells provide better long-rest, intermittent usage.” (Exh. 8, at 8)(emphasis in original). At the time of the announcement, Kodak was “prepared to start selling batteries,” although it did not have the ability to actually produce the Ultralife at that time. (9/9/96 Tr. at 62-63). B. OMEGA’S INTEREST AND OEM BROCHURES Early press attention surrounding Kodak’s announcement was viewed by Mrs. Hollander’s husband, Dr. Milton Hollander, himself a co-owner, director, advisor and technical consultant for Omega. (9/25/96 Tr. at 128-29, 130-31). Dr. Hollander “pressured” the company to include the Ultralife in its products because he thought it “would absolutely be a positive thing for Omega to put with its instruments, because Omega has always been considered a state of the art company, and you would always get the latest technology. It seemed only natural that this battery would be ideal for Omega.” (9/25/96 Tr. at 131). Shortly after the announcement, Omega contacted Kodak for information. (9/25/96 Tr. at 131-32). The information initially forwarded to Omega included a brochure entitled “Announcing a Major Breakthrough in Power Cell Technology” [“First OEM Brochure” ], some sample batteries and an early Engineering Specification. (9/17/96 Tr. at 35; 9/25/96 Tr. at 131-32, 180-81; Exhs. 6 & 15-16). Significantly, John Linney, Omega’s purchasing vice president, testified that Omega committed to purchase the lithium batteries even before they received product literature about the batteries or any samples of batteries. (Exh. 741, at 122,206-07; see also 9/17/96 Tr. at 71). That commitment was consistent with the Hollanders’ high level of interest in the Ultralife. In this manner, the First OEM Brochure was not made a part of the basis of the bargain between Omega and Kodak. The First OEM Brochure was produced specifically for the industrial market to provide customers with technical data showing various characteristics of the battery. (9/11/96 Tr. at 160-62; Exh. 15). Adams and Paul Dickinson, head of Ultra Technologies’ OEM Sales, had responsibility for the accuracy of the content of the First OEM Brochure. (9/10/96 Tr. at 109; 9/11/96 Tr. at 147-18, 160-61). The arrayed data included continuous discharge charts at various voltage loads [ “Discharge Curves” ] which indicated that the Ultralife had superior service life in tests over a continuous discharge. (Exh. 15). Besides the Discharge Curves, the First OEM Brochure included a chart showing capacity retention over time which indicated that the Ultralife retained eighty percent of its capacity after ten years. Directly beneath the capacity retention chart was the following additional information: “Retained capacity based on estimated, data from accelerated storage tests.” (Id.). The brochure also stated that the Ultralife is “an excellent choice for long-rest, intermittent application.” (Id.). Kodak published a second brochure intended for the industrial market in May 1987 [ “Second OEM Brochure” ]. (Exh. 34. See also Exhs. 727-31). Like the First OEM Brochure, it was intended as promotional literature and was reviewed by Dickinson and Adams for accuracy prior to publication. (9/10/96 Tr. at 111-12; 9/11/96 Tr. at 186-87). Again, the Second OEM Brochure made claims of ten-year shelf life, benefits for intermittent use applications and impermeability. (Exh. 34). Of particular note was that the “estimated data” language was removed from the capacity retention chart. A third industrial brochure [ “Third OEM Brochure”] was issued in June 1988; this time, Heirigs was responsible for collecting and substantiating the data incorporated in it. (9/19/96 Tr. at 197-98; Exh. 63). A fourth brochure was issued toward the end of 1988 and Heirigs was similarly responsible for data and content. (9/19/96 Tr. at 198; Exh. 83). C. “SHELF LIFE” & TESTING THEREOF The “capacity retention” referred to in the First OEM Brochure relates to “shelf life” which has been described differently by several witnesses. For example, Moxley in his direct testimony described it as the time a battery sits on a shelf, including any periods that a battery is stored after being put into service. (9/9/96 Tr. at 24-26)(emphasis added). Later in his direct testimony, Moxley retreated a bit, describing shelf life as the time between when a person buys a battery and the time it is put into service, characterizing the intermittent use as a “service life issue.” (9/9/96 Tr. at 97-99). Dr. Boone Owens, Omega’s technical expert (Exh. 210), testified that “the shelf life definition ... doesn’t really consider sporadic use. It is really the maximum length of time the battery could sit and then be put into a use condition, and deliver 80 percent of what would have been delivered as a fresh battery.” (9/17/96 Tr. at 168). Dr. Sumner Wolsky, Kodak’s battery expert (Exh. 650), testified that once a battery has been put into use in a particular device such as a meter, “it becomes service life under whatever duty cycle you’re using.” (9/24/96 Tr. at 23). The Court finds that references to shelf life include only that period of time from manufacture up to the point when a battery is placed into use in a device, there being insufficient proof that it would include any time after that. Shelf life claims were based upon basic research, microealorimetry and accelerated aging testing done at Kodak laboratories; these procedures included “a considerable amount of testing of products that we would manufacture.” (9/26/96 Tr. at 227-28). Presumably that testing included Kodak’s incorporation of the “two-thirds A”-size lithium battery used in the Kodak disc camera. Although real-time testing would have been the most accurate method of testing shelf life of batteries because it was a method of direct analysis, the two other approaches used by Kodak (microealorimetry and Arrhenius testing) were acceptable to the scientific community. For example, plaintiffs technical expert, Dr. Owens, testified that he published articles concerning the use of microcalorime-try to test battery performance and felt that it “was a great technique to use to study batteries,” although he was critical of it because it was an “indirect” method of testing. (9/18/96 Tr. at 78, 88-89; 9/17/96 Tr. at 170-73). Dr. Wolsky, Kodak’s expert, agreed that microcalorimetry was “generally accepted in the battery industry as of the early ’80’s.” (9/24/96 Tr. at 26). He testified that Arrhenius testing was also generally accepted as a technique for estimating the long-term performance of the battery. (Id.) Again, Dr. Owens testified that Arrhenius plot analysis was a general technique used for extrapolating data from higher temperatures to lower temperatures. (9/18/96 Tr. at 134-35). Accordingly, the Court finds that it was reasonable for Kodak to rely on these generally accepted methods for estimating shelf life characteristics of the Ultralife. The experts disagreed as to whether the technical reports supported the claim for a ten-year shelf life. Dr. Owens strongly believed that the test data available at various points in time did not support the shelf life claims made as of those dates. (9/17/96 Tr. at 195-205). It was evident that Dr. Owens’ opinion was based upon review of selected research reports, especially Exhs. 2-3, which contained references to potential problems, rather than the entire panoply of technical data amassed by Kodak. (9/17/96 Tr. at 197; see also Exhs. 5, 20, 21, 35, 36, 39, 43, 44, 59). In addition, there were obvious limitations in the studies relied upon by Dr. Owens. (See Dkt. # 336, at 13-14). Moreover, while Exhs. 2-3 point out some potential weaknesses regarding the development of the U9VL, the exhibits also support Kodak’s claims. For example, Exh. 3 states: “The room temperature storage goal of [less than] 2% capacity loss per year can be attained with the Li/Mn02 chemistry. This has been demonstrated by real-time discharge testing of LiMn02 2/3A jelly roll cells.” (Exh. 3, at 17). In contrast to Dr. Owens’ testimony, Dr. Wolsky testified credibly, based on generally accepted scientific data, that the ten-year shelf life claims made in the spring of 1986 and in the First OEM Brochure were reasonable claims, (9/24/96 Tr. at 25-27). No credible evidence was presented to refute the reasonableness of the shelf life claims being made in 1986 through early 1987. Then, in 1987, Kodak undertook to study a significant number of U9VL batteries with “the intent of the study being reported herein to provide the baseline data which supports the [ten-year shelf life claim].” (Exh. 39, at Bates #020306). The study resulted in “an estimate for product shelf life of 17.6 years.” (Id. at Bates # 020314). This testing, which culminated in the Technical Reports admitted as Exhs. 35 & 39, happened to coincide with the first delivery of Ultralife batteries to Omega. Thus, while Omega claims it received a battery whose shelf life could not be substantiated by Kodak testing results, in reality, those results more than supported defendant’s claims. With respect to claims made before that time, the Court finds that they were reasonable claims made in the course of developing and marketing the Ultralife. At the time they were made, the estimates were based upon reasonable projections, previous experience and with the expectation that whatever “kinks” were encountered before actual product delivery would be worked out in the manufacturing process. As it turned out for Kodak, and as discussed in Section I.H. infra, Kodak was never able to work out the manufacturing process in an economically feasible manner. D. LEAKAGE Another important characteristic of the Ul-tralife battery was the design of the battery casing and cover to prevent leaking. This characteristic is somewhat related to “her-meticity,” “corrosion,” “impermeability” and “leakage.” Kodak represented at the press announcement that it had “designed and perfected an interconnect cover fitting the battery top. This provides a series connection of the three cells and hermetic sealing of contacts within the easing to prevent leaking.” (9/9/96 Tr. at 84; Exh. 8, at 10). The scripted material of the press announcement also pointed out that “we plan to test our power cells for any minute leaking off the [manufacturing] line ... store for two weeks ... and then re-test — a standard above most industry practices.” (Exh. 8, at 10)(emphasis in original). In another press release tailored for a more technically oriented audience, Kodak represented that “the tightly-sealed Ultralife lithium cells retain virtually all their power, even if stored 10 years or longer.” (Exh. 11, at 2). The various statements regarding “impermeability” do not mean that the Ultralife was “literally” impermeable. Rather, they offered a comparison for sophisticated buyers to judge the product differentiation of the lithium battery. E. ACCURACY OF KODAK STATEMENTS The Kodak witnesses all testified credibly that they believed the battery characteristic claims to be true when they were made. For example, Moxley testified that the scripted statement at the press announcement in May 1986 included the statement that the Ultral-ife has a “much longer shelf life, ... up to ten years compared to about three years for an alkaline battery.” (9/9/96 Tr. at 70; Exh. 8, at 9 (emphasis in original)). Moxley said he believed that the statement was true. (9/9/96 Tr. at 70-71). In addition, Moxley consulted with Clark regarding the accuracy of the statements made at the press announcement and “Clark assured me that the statements were correct.” (9/9/96 Tr. at 122). Adams stated that, as vice president of advertising, he never felt that he was put into a position where he had to misrepresent or mislead the characteristics of the battery to any customer. (9/11/96 Tr. at 22). Adams believed all the advertising issued to customers was accurate, based upon the best state of knowledge Kodak had at the time the statements were made; he testified that he never knowingly misrepresented a characteristic of the Ultralife. (9/11/96 Tr. at 49). Dickinson testified that he tried to be “straight forward and honest with [Omega],” did not try to knowingly mislead Omega about anything, was never instructed to hide information from Omega, and always tried to be fair, truthful and direct in dealing with Omega. (9/12/96 Tr. at 180,197). Indeed, as Adams testified, to misrepresent the Ultral-ife’s characteristics “could create all kinds of problems, customer dissatisfaction, disruption, discredit on the company, discredit on [Kodak’s] valuable brand name.” (9/11/96 Tr. at 49-50). Thus, the Court holds that Kodak representatives did not know that any statements regarding battery characteristics were untrue. Despite believing that the performance claims were true when made, Kodak representatives were aware that there were problems arising from manufacturing inconsistencies. For example, Moxley testified that the Ultralife “development was not sufficiently completed such that we could manufacture the products consistently in the high quantities to substantiate the kind of performance that we wanted to have, repeatable performance, battery after battery.” (9/9/96 Tr. at 109). As a new product, the Ultralife went through the normal array of development problems for batteries, including leaks and other deficiencies. (9/19/96 Tr. at 113, 191). Through a series of quality assurance cheeks on the manufacturing line, Kodak attempted to eliminate any deficient batteries. (9/19/96 Tr.‘ at 191-94). This led to low manufacturing yields and, in turn, made the manufacture of the Ultralife somewhat unprofitable. (9/27/96 Tr. at 21-22,129). In addition, Omega introduced into evidence several technical reports that were prepared before the May 1986 press announcement. In Exh. 2, Jake Voycheck, an Ultra Technologies technical support person, studied the Ultralife’s permeability and leakage in connection with the product’s development. He summarized: “Most of the studies conducted to date have to be questioned since it has been demonstrated that a major limiting factor is the hermeticity of the seal at the perimeter of the interconnect cover.” (Exh. 2, at Bates # K017353). In another report, Kodak Research Labs “strongly recommended that corrosion studies of the stainless steel cathode current collectors be initiated, since grid corrosion is a prime suspect of battery instability at room and elevated temperatures.” (Exh. 3, at Bates # K016270). Other technical reports were prepared at various times after the press announcement and introduced by Omega. For example, Exh. 17 is a report on the “9 Volt Lithium Stability Program,” dated July 22, 1986, which references a change in electrolyte and states: “In this author[’s] opinion, evidence collected to date points toward the salt as being the primary source of instability, although the exact mechanism is not clearly understood.” (Exh. 17, at Bates # K016815). In March 1987, Kamal Sarbadhikari, a manager in the technical support organization reporting to Clark, drafted a memorandum regarding “U9VL Advertising Claims, 2X alkaline, 10 year Shelf Life,” which references a change in electrolyte around the time of the press announcement “after determining that the original electrolyte was unacceptable for stability.” (Exh. 31, at Bates # UL5959). As stated above, although Exhs. 2-3 identified some potential limitations, they also tended to support Kodak’s performance claims. Moreover, they do not account for the development and improvements made in the batteries prior to shipment. Despite their awareness of problems related to manufacturing inconsistencies, Kodak managers felt that the performance claims were met with respect to the batteries released for sale. In this manner, the internal technical reports which raised questions with respect to battery performance were not “red flags” regarding the performance of batteries eventually shipped to customers. F. OMEGA’S PURCHASES Omega issued its first purchase order for the Ultralife on June 24, 1986. (9/17/96 Tr. at 36-37; Exh. 115). The purchase order was issued “to cover Omega’s four (4) months requirements” for the Ultralife. The “Delivery Schedule” called for deliveries of 5,136 units over a period of approximately four months beginning on October 2, 1986. (Exh. 115). Before any batteries were delivered however, Omega commenced “a major campaign” to promote the fact that it would be supplying, at no extra cost, Ultralife lithium batteries with each hand held instrument sold. (9/17/96 Tr. at 37). Kodak advised Omega that the Ultralife would not be available to Omega until March 1987. (9/12/96 Tr. at 130-31; 9/17/96 Tr. at 37; Exh. 26). In the interim period, Kodak supplied Omega with Supralife (alkaline) batteries, which were replaced with Ultralife batteries once they became available; when supplying instruments during this period, Omega provided customers with a postcard which explained the absence of the Ultralife and would entitle them to either a credit for the cost of one battery or two free Ultralife batteries when they became available. (9/17/96 Tr. at 38-39; Exhs. 126A, 130, 143). Omega purchased all the batteries pursuant to the purchase orders. (Exhs. 115-24. See also Exh. 543). Omega ordered nearly 120,000 Ultralife batteries from 1987 through 1990. Purchase Order Date Number of Units Exhibit Number _60618352 6/24/86_5J36_115 _70212220 1/30/87_6,552 117 & 521 _70401001 3/30/87_11,600_119 __Cite as 30 F.Supp.2d 226 (P.Conn. 1998)_ Purchase Order Date Number of Units Exhibit Number _70624862 6/30/87_6*552_120_ _71026374 10/28/87_26,800_121_ _80414232 4/14/88_20,800_122_ _90404054 4/4/89_20,800_123 _91103092 1/3/89_20,800_124_ _Totals_119,040_ Omega’s material control manager, Scott Wakeman, agreed that Omega “wanted to keep [its] options open to be able to buy other batteries if [it] didn’t want to continue to buy [the Ultralife].” (9/17/96 Tr. at 127). Linney, Omega’s former vice president of instruments and controls, testified: “If I was going to make this a long term contract or relationship, it would be [in the form of] a sales agreement____ I would have made dates. It runs from here to here. I wouldn’t say a long term relationship — Hollander would have me out the door in a minute.” (Exh.. 741, at 261). Consistent with that stance, Kodak’s Dickinson testified he never had any intention to enter into any type of contractual or long term arrangement beyond the purchase orders. (9/12/96 Tr. at 168). Because there was no contractual long term relationship provided for by the parties, Omega undertook a certain amount of risk with respect to incorporation of the Ultralife into its products and promotional literature. By offering the Ultralife batteries in its own products, Omega wanted to leverage the Kodak brand name because Kodak had a reputation for high-quality, cutting edge technology. (9/25/96 Tr. at 141). It did so by featuring Kodak’s Ultralife batteries in Omega’s own promotional literature, including its handbooks, ads and postcard packs; this was the first time Omega had displayed the brand name of another company. (9/25/96 Tr. at 140; Exhs. 127-31). Omega’s handbooks are multivolume sets of hardbound books that are both promotional and technically informative to end users. (9/25/96 Tr. 142-43; Exhs. 127-29). There was testimony to the effect that the handbooks have a useful sales life of approximately five years, with new sets being produced every few years. (9/17/96 Tr. at 64-65; 9/25/96 Tr. at 142. See also Exhs. 647, 652) Beginning in 1989, Kodak gave Omega a five percent discount as an incentive to Omega to advertise the Ultralife batteries. (9/11/96 Tr. at 203-04). Kodak was certainly aware that Omega was utilizing the Ultralife and the Kodak image in Omega’s promotional literature. (9/11/96 Tr. at 204; Exh. 37). G. BLACK & DECKER’S PROBLEMS WITH ULTRALIFE BATTERY & EFFECT UPON OMEGA In late 1987, another OEM customer for the U9VL, Black & Decker, raised technical questions related to deficient batteiy performance. (Exhs. 45 & 50). In early 1988, Moxley met with representatives of Black & Decker in order to discuss the problems that the Ultralife was apparently causing to Black & Decker’s new flashlight program. (9/9/96 Tr. at 146-47). In a press release dated February 19, 1988, Kodak revealed that the Ultralife had a “storage-life deficiency” which “does not affect the use life of the 9-volt lithium cells in the vast majority of popular uses.” (Exh. 147, at 1; see also Exh. 146). The shortened storage life was “caused by an unexpected buildup of internal resistance in the batteries when stored unused over a period of time.- It is not related to the energy capacity of the batteries.” (Exh. 147, at 1). Kodak initially agreed to a recall of all its Ultralife batteries supplied to Black & Decker and eventually reached a settlement of all potential claims Black & Decker had with respect to the technical issues it raised. (9/9/96 Tr. at 147-49). The settlement agreement called for a payment of $5.9 million and the return to Kodak of all batteries and further specifically provided that nothing in the settlement agreement shall “constitute any admission of fault or liability by [Kodak].” (Exh. 71; see also Exhs. 50, 61-62, 66, 146-47, 149, 199, 754). The Black & Decker situation received attention in the Wall Street Journal in an article dated February 22, 1988. (Exh. 51). On that day, after reading this article, Wake-man contacted Dickinson for an explanation. (9/12/96 Tr. at 39-40, 159; 9/17/96 Tr. at 53; Exh. 55; Exh. 599, at Bates # K000315). According to Wakeman, Dickinson left him with the impression that the battery would still meet the “original” specifications, including the ten-year shelf life, for the specific applications to which Omega was putting the Ultralife. (9/17/96 Tr. at 53). Further, Wakeman claimed Dickinson said that within six to eight weeks Kodak would remedy the situation with respect to the ten-year shelf life specification for all applications, including the very high drain and very low drain applications. (9/17/96 Tr. at 55)(emphasis added); (Exhs. 561-62). He testified that Dickinson never said that the battery had less than a ten-year shelf life. (9/17/96 Tr. at 57). Dickinson, on the other hand, testified that Wakeman and Omega knew Kodak was withdrawing the ten-year shelf life claim, but that because it did not affect their low-to-medium drain applications, Omega would continue to purchase the Ultralife despite knowing the ten-year shelf life claim was withdrawn. (9/12/96 Tr. at 160). To support this contention, Kodak introduced three exhibits: (1) a letter, dated February 22,1988, from Dickinson to Wakeman with attachment stating that “the long term shelf life of our 9-volt lithium battery was less than predicted for a number of applications.” (Exh. 55, at 2); (2) contemporaneous notes of Dickinson regarding the phone call on February 22, 1988, indicating that Omega “will plan to go with current product.” (Exh. 599, at Bates # K000315); and (3) a memo, also dated February 22, 1988, from Wakeman to the Hollanders stating that “the 9Y Lithium battery which was supposed to have a 10 year shelf life does not.” (Exh. 561). In addition, commencing in April 1988, Kodak changed certain product data sheets sent to OEM’s to reflect a four-year shelf life and Dickinson testified credibly that he regularly dropped off data sheets and brochures whenever he visited OEM’s (ie., including those reflecting five year shelf life claims). (9/12/96 at 37-39, 57). Indeed, at no time after the Black & Decker incident did Kodak make a ten-year shelf life claim in its publicly available literature. (9/10/96 Tr. at 26; Exh. 56). The Court finds that Omega was informed of the ■withdrawal of the ten-year shelf life claims at least as early as February 1988. In any event, in early 1988, Kodak became aware that the ten-year shelf life claim was not accurate and that it could “no longer substantiate the fact that we had shelf life of ten years in all applications,” as Moxley conceded. (9/9/96 Tr. at 127). This was due to the fact that the accelerated testing used to support the shelf life claims was incapable of predicting the internal resistance phenomenon discovered in “real-life behavior in storage conditions.” (Exh. 147, at 1). In other words, the standard methodologies and techniques for predicting shelf life could not reliably predict the actual performance characteristics of the Ultralife in storage. Moxley and Adams agreed that OEM’s would be contacted and informed of the “new test data” so long as “it was applicable to the applications for which they were buying the product” (i.e., certain high drain rate applications). (9/9/96 Tr. at 136-38). Kodak determined that Omega was not affected, and therefore it did not inform it of the recent changes. In a handwritten note from Adams, dated December 4,1987, Moxley was informed that “Paul is under tremendous pressure as a result of our lack of understanding of the affects of aging of IJ9VL. We’ve just opened up availability of product to him but now it’s questionable whether we should be selling OEM’s and building future disasters for us.” (Exh. 46; 9/9/96 Tr. at 139411). Moxley later understood that the comment reflected Adams’ frustration about the technical issue and that it was his way of putting some pressure on them to resolve it. (9/9/96 Tr. at 142). Therefore, the statement should not be taken as anything more than hyperbole, and does not constitute an “admission” that the Ultralife could not live up to performance expectations in the Omega applications at issue in this ease. H. KODAK’S EXIT FROM ULTRAL-IFE BUSINESS & FINAL NEGOTIATIONS WITH OMEGA By the end of 1989, Kodak had reached a decision to stop heavily investing in the battery business. (9/9/96 Tr. at 41412; 9/19/96 Tr. at 11, 16-17. See also Exhs. 104, 107, 111, 113-14, 159, 166, 169, . 180, 200). By March 1990, Kodak came to the conclusion that it could no longer afford to financially support the manufacture of Kthium batteries and Kodak moved “toward a downsizing exit strategy by the end of the year.” (9/19/96 Tr. at 26). This investment decision was made under pressure from outside financial analysts and the Kodak CEO who determined that the product line of batteries was not “inside the circle of core competencies” for the cash-poor company. (9/9/96 Tr. at 41-42). At the same time, Ultra Technologies, which had been a separate division within the photo products group, became a part of the consumer products division, itself a division of the photo products group. (9/9/96 Tr. at 46-48. See also Exhs. 196, 677, 682, 74546). This effectively inserted an additional layer of management into the battery business and perhaps signaled the eventual exit from the business. (9/9/96 Tr. at 4849). Kodak notified Omega that it would discontinue manufacture of the U9VL effective April 5, 1990; in a letter to Rick Frank, Omega’s purchasing agent (9/20/96 Tr. at 178), Clark indicated that the exit from the business was due to unacceptable economic performance and “[cjontinued efforts to correct this situation are just not consistent with [Kodak’s] financial objectives.” (Exh. 181). Further, Clark stated: “Limited quantities of batteries are available and will be used to fill existing orders until supplies are exhausted. Any new orders will be accepted on a bac-kordered basis only, "with no guarantee of delivery.” (Id.). Omega expressed surprise and concern at Kodak’s decision to exit the lithium battery business. .(9/20/96 Tr. at 191-92). On April 9, 1990, Frank called Clark to express displeasure at Kodak’s exit from the battery business and to tell Clark that Omega definitely wanted Kodak to fill the open order for 10,400 units. (9/27/96 Tr. at 66-67; Exhs. 636 & 124). On April 11, 1990, Charles Mangarella, who was in charge of materiabund production control for Omega (9/24/96 Tr. at 88), called Clark and informed him that Omega would need 200,000 units and “threatened” the use of lawyers if an accommodation could not be worked out. (9/27/96 Tr. at 71-73; Exh. 636, 647, 652, 662). On April 20, 1990, Omega issued Purchase Order No. 00416214 calling for 200,000 batteries to be delivered over the course of the next four years on a monthly basis at a'cost of $2.09. (Exhs. 124 & 184). Omega and other OEM customers convinced Kodak to continue production of the 9 volt lithium batteries, but Kodak management decided that it would not continue to produce batteries at the prices previously offered. (9/19/96 Tr. at 27-28). Rather, it decided to offer continued production as an accommodation at the “break even” price of at least $4.59. (9/19/96 Tr. at 28; 9/27/96 Tr. at 84-85; Exh. 667). In early May 1990, Frank discussed the possibility of a price increase with Clark; Frank informed him that Omega “would strongly be opposed to any price increase for a minimum of two years.” (Exh. 531). This opposition was consistent with Omega’s position that sales of product advertising the Ultralife would continue from the hardbound catalogues for a minimum of two years. (Id.). On June 15,1990, Clark acknowledged Omega’s latest purchase order for 200,000 batteries, indicating shipment of 4,000 units scheduled for June 5,1990 and another 4,000 units on July 15, 1990 at a price of $4.59. (Exh. 515. See also Exh. 678). On two subsequent occasions, batteries were shipped to Omega. On June 21, 1990, Frank wrote an internal memorandum regarding Clark’s acknowledgment, indicating awareness of the new invoice price and advising that he thought “we should have our strategy in order before we respond.” (Exh. 698. See also Exh. 693). On July 6, 1990, Dr. Hollander wrote to Adams regarding the price increase to $4.59 and insinuated that the price increase was “another way of saying the battery is not available.” (Exh. 570). On August 21, 1990, Frank wrote to Kodak’s supervisor of accounts payable regarding two invoices, dated 7/9/90 and 8/13/90, under which the 8,000 batteries were shipped. (Exh. 703). Omega claimed to be “shocked to see [Kodak] had invoiced [Omega] more than twice ($4.59 vs. $2.09) the current agreed upon purchase order price for these batteries.” (Id. at 1). Further, Frank wrote: “We have absolutely no intention of paying this exorbitant price of $4.59 for these batteries and are prepared to return the balance of this inventory if we can not agree on a price.” (Id.). In its Reply to Kodak’s Counterclaim, filed November 6, 1991, Omega admitted that it had not returned the batteries purchased on the last purchase order. (Dkt. #50, at 1-3). Although Frank admitted to receiving batteries on the new purchase order, he could not answer definitively whether Omega had paid nothing or $2.09 or $4.59, because “invoices [went] directly to the accounts payable department” and Frank, as purchasing manager, did not see them. (9/20/96 Tr. at 198-99, 200-01). I. FURTHER TESTING OF BATTERIES On July 31, 1990 and again in October 1990, an engineer at Omega conducted tests of the Ultralife in an Omega product called the OMEGASEZ, product number HHM1. (9/25/96 Tr. at 46-51). In these two tests, the Kodak batteries performed much better than the alkaline batteries against which they were tested. (Id. at 47). On November 2, 1990, Omega filed its original complaint in the instant action. On three subsequent occasions, Francis Jo-baggy, Omega’s manager of product development (9/25/96 Tr. at 7-8), tested selected batches of the approximately 17,000 batteries that were stored at Omega. (Id. at 11). On September 12, 1991, Jobaggy tested 1,000 batteries, measuring “open circuit voltage” as against the battery specification number 2.1 calling for open circuit voltage of between nine and ten volts. (Id. at 17-18; Exhs. 6 & 132). Jobaggy testified that 297 of the 1,000 batteries tested were “way below nine volts.” (9/25/96 Tr. at 18-19). Jobaggy also visually inspected the 1,000 batteries and noted evidence of leakage in two instances. (Id, at 58-60; Exh. 132, at Bates e51-62). On September 30, 1991, Jobaggy took a different batch of 400 batteries and tested them for internal resistance as against the Kodak specification 2.2 calling for “internal resistance of a fresh battery shall be at 68 degrees Fahrenheit, six ohms maximum.” (9/25/96 Tr. at 22-24). Of the 400 batteries tested for internal resistance, Jobaggy testified that 397 failed to meet the specification in that they were greater than six ohms resistance and therefore “were not able to deliver the power that was inherent in the battery.” (Id. at 25). Finally, sometime in the May to July 1992 time period, Jobaggy tested additional batteries, this time to determine “the ability of the battery to deliver current over a period of time” and at different load conditions. (Id. at 26-29). Under light load conditions of 300 ohms, twelve of twelve batteries delivered the “expected life expectancy of 41 hours.” (Id. at 28). At 180 ohms, twelve of fifteen passed; at the higher loads of ninety and thirty-six ohms, all the thirty-six batteries tested “failed.” (Id at 29). Omega was not alone in conducting battery tests after the litigation was filed. In rather dramatic courtroom testimony, Clark, the inventor of the Ultralife, explained how he had conducted tests on battery samples he had retained after retiring from Kodak. In one instance, just before the original trial date in December 1995, a battery contained in the original packaging from the product announcement in May 1986 was found to produce a voltage reading of 9.6 volts. (9/27/96 Tr. at 93-94; Exh. 738). In another instance shortly before this trial, Clark again tested another Ultralife battery from the May 1986 product announcement kit and found it produced a 9.6 volt reading. (9/27/96 Tr. at 95-97, 98-100; Exh. 751). One of these batteries also powered an AM-FM portable radio. (Id at 99-100). A third battery which was manufactured in January 1990 was tested by Clark as against the Discharge Curves contained in the First OEM Brochure (Exh. 15, at 3). In this test, the six and one-half year old battery powered a portable radio for at least 47 hours, “provid[ing] not only the der-ated life [accounting for the age of the battery], but more than the initial full rated life of a new battery, and it was still performing at the time [Clark] discontinued the test.” (9/27/96 Tr. at 100,101-02). On cross-examination, Clark admitted that by these tests he was not trying to prove that all the Ultralife batteries had a ten-year shelf life. (Id at 134-36). Rather, Clark was merely showing that “it was possible to make a battery that had a ten-year shelf life.” (Id at 136). II. CONCLUSIONS OF LAW The following constitutes the Court’s conclusions of law pursuant to FED. R. CIV. P. 52(a): A. PROMISSORY ESTOPPEL In Count Three of its Third Amended Complaint, Omega alleges that “[f]rom 1986 through the early months of 1990, Kodak made express and numerous representations both in writing and orally that it would supply Omega’s 9-volt lithium battery requirements for an extended period of time.” (Dkt. # 246, ¶ 45). Omega further alleges that it invested time and money in connection with Kodak’s representations, and it has suffered substantial damages under the theory of promissory estoppel. (Id. ¶¶ 46-48). Significantly, Omega did not submit arguments of law or findings of fact with respect to the claim for promissory estoppel in its post-trial briefs. (See Dkt. ## 333-34). Kodak contends that “[n]one of the statements or communications Kodak made to Omega constituted the type of clear and definite promise on which it would have been reasonable for Omega to rely. Both parties intended their relationship to be governed by the purchase orders and not by their letters of statements.” (Dkt. #337, at 11, ¶¶4-5). The Court agrees. “In Connecticut, an implied employment contract may arise under the doctrine of promissory estoppel, where injustice to a promisee who has acted in reliance can be avoided only by enforcement of ‘a clear and definite promise which a promisor could reasonably have expected to induce reliance.’ ” Manning v. Cigna Corp., 807 F.Supp. 889, 895 (D.Conn.1991)(quoting D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987); Eadie v. McMahon, No. 5:91 CV 423(WWE), 1997 WL 289679, at *11 (D.Conn. Mar. 12, 1997)(same)). The determination of whether certain statements were promissory, whether a contract was created, and what the parties intended to encompass in their contract are questions for the trier of fact. Coelho v. Posi-Seal Int’l., Inc., 208 Conn. 106, 113, 544 A.2d 170 (1988); Torosyan v. Boehringer Ingelheim Pharm., Inc., 234 Conn. 1, 17 n. 6, 662 A.2d 89 (1995); see also Manning, 807 F.Supp. at 895. Neither Kodak nor Omega intended that Kodak would be bound to provide Ultralife batteries for a given term or at a given price other than that set forth in the purchase orders, or to create a reliance interest by Omega on Kodak providing batteries on a long term basis. As set forth in Section I.F supra, Wakeman testified that Omega “wanted to keep [its] options open to be able to buy other batteries if [it] didn’t want to continue to buy [the Ultralife].” (9/17/96 Tr. at 127). And Linney testified that if he had entered into a long term relationship with Kodak for the Ultralife, “Hollander would have me out the door in a minute.” (Exh. 741, at 261). This indicates that any actions taken by Omega with respect to advertising or product development were undertaken at Omega’s own risk and regardless of Kodak’s long term plans to remain in the business. Furthermore, while Kodak officials had expressed an aspiration for such long range plans in the battery business, their statements were not so clear as to encourage reliance by Omega. For example, Wakeman testified that he “had discussed Kodak’s entry into the battery business, which was a departure for them, and [Dickinson] told us that they had invested millions of dollars in developing these products, and that they had built a factory and that they were in it for the long haul.” (9/17/96 Tr. at 66). The Court finds that Kodak’s statements were not statements of a clear and definite promise sufficient to support a claim for promissory estoppel. In addition, the evidence presented indicated that Omega was not induced to rely on any long term commitments by Kodak to supply Omega’s Ultralife requirements indefinitely. The evidence was quite the contrary. Moreover, each purchase order contained the following language: “Entire Agreement. This purchase order and the documents referred to on the face hereof constitute the entire agreement between the parties.” (9/17/96 Tr. 32-35; Exhs. 115-24, 521). Given that the parties intended the purchase orders to control their contractual relationship, the Court would be hard pressed to overturn that clear expression even if Omega had presented sufficient evidence of a clear and definite promise. “[A] promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all.” D’Ulisse-Cupo, 202 Conn. at 213, 520 A.2d 217 (citation omitted). B. BREACH OF WARRANTIES Count Four of Omega’s Third Amended Complaint is entitled “Breach of Warranty Shelf Life” and Count Five is entitled “Breach of Warranty Leakage.” In the parties’ post-trial submissions, these claims have evolved into separate claims for breach of express warranty, breach of implied warranty of merchantability and breach of warranty of fitness for a particular purpose. The Court will address these claims in the same manner as the parties’ post-trial submissions. 1. BREACH OF EXPRESS WARRANTIES In Count Four of its Third Amended Complaint, Omega contends that Kodak expressly warranted a ten-year shelf life for the Ultral-ife battery, but that the batteries actually purchased had a “practical shelf life [of] no more than two years and cannot be furnished by Omega as an original power source with its instruments if the battery is more than two years old.” (Dkt.# 246, ¶¶50, 52, 55). Omega further contends that “[t]he Ultralife batteries purchased from Kodak failed to conform to the express warranties made by Kodak.” (Id, ¶ 56). In Count Five, Omega claims that the “electrolyte inserted within the casing of the batteries has leaked either externally or internally or both rendering the batteries useless.” (Id. ¶ 61). In two cases, Omega alleged that the leaking electrolyte damaged Omega’s products and that Omega replaced the units at a total cost of $1,400. (Id. ¶ 62). Omega further alleges that “[a]s a result of the defect in the Ultralife battery which causes leakage of the lithium [sic], the Ultralife batteries purchased from Kodak fail to conform to the express warranties made by Kodak.” (Id. ¶ 64). Omega contends that it seasonably notified Kodak of its breach of warranty. (Id. ¶ 66). In its post-trial submission, Omega claimed that Kodak created express warranties with respect to three battery attributes: (1) shelf life; (2) impermeability; and (3) that the U9VL was perfect for use in long-term intermittent rest applications. (Dkt. # 334, at 42). In its answer, Kodak denies that any product material furnished to Omega constituted “express warranties,” denies that at any time after February 1988 that Dickinson claimed a ten-year shelf life, and denies that Dickinson “assured Omega that the ten-year shelf life was true with respect to Omega products” as of February 22,1988, or at any time thereafter. (Dkt.# 247, ¶¶ 50, 52). In addition, Kodak claims that its statements about the shelf life of the Ul-tralife batteries and other technical characteristics were reasonable engineering projections and descriptions, but were not fully definite to constitute express representations of quality or performance. Even if Kodak’s representations were definite enough to create express warranties, Omega has not established that any such warranty was breached. There is no evidence that any specific Ultralife battery delivered to Omega failed to conform with such warranties. (Dkt. # 337, at 13, ¶¶ 12-13). Finally, Kodak argues that “Omega did not prove that it suffered any direct damages caused by Kodak’s representations” as to shelf life or impermeability, and that even if it had, Omega’s damages “would be limited to its cost for a replacement battery or, at most, the instrument the non-conforming battery damaged if it could be shown that the battery caused the damage.” (Dkt. # 336, at 64, 65). The elements for a claim for breach of warranty are: (1) existence of the warranty; (2) breach of the warranty; and, (3) damages proximately caused by the breach. ’ Conn. Gen. Stat. § 42a-2-314, cmt. 13; Acme Pump Co., Inc. v. National Cash Register Co., 32 Conn.Supp. 69, 71-72, 337 A.2d 672 (Com.Pl.Ct.1974); see also Dkt. # 334, at 40 & Dkt. # 336, at 11, ¶ 6. Any affirmation of fact or promise made by the seller of goods to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise. CONN. GEN STAT. § 42a-2-313(l)(a); Moldex, Inc. v. Ogden Eng’g Corp., 652 F.Supp. 584, 589 (D.Conn.1987). “A description need not be by words. Technical specifications, blueprints and the like can afford more exact description than mere language and if made part of the basis of the bargain goods must conform with them.” CONN. GEN STAT. § 42a-2-313, Comment 5. Buyers bear the burden of proving the existence of an express warranty. Vezina v. Nautilus Pools, Inc., 27 Conn.App. 810, 816, 610 A.2d 1312 (App.Ct.1992). While advertisements can be part of the basis of the bargain, the plaintiff must show, at a minimum that he or his agent knew of and relied on the statement. 1 J. White & R. Summers, Uniform Commercial Code § 9-5, at 494-95 (1995) [“White & Summers”]. The threshold issue is to identify what statements, if any, constituted an express warranty by Kodak. Clearly, the shelf life specifications promulgated by Kodak could constitute an express warranty with respect to the characteristics listed, provided, however, that the parties made such specification a basis of the bargain. As stated in Section I.F supra, Omega committed to purchase the batteries before receiving the product literature or any samples; therefore, the early written materials sent to Omega cannot be said to form the basis of the bargain. In addition, there was credible evidence to conclude that shelf life was not the most important attribute that attracted Omega to the Kodak battery. In that regard, if any battery attribute could be said to serve as the “basis of the bargain,” the parties understood it to be service life, which appears to be a valid claim for the Ultralife and one attribute upon which Omega does not continue to make a claim. (See Complaint, filed Nov. 2, 1990 (Dkt.# 1), Count IV, ¶¶ 40-48). In addition, there is an issue as to which of the several specifications provided to Omega were “in effect” at the time batteries were ordered. The evidence was that the specifications changed over time. There was conflicting testimony regarding whether Omega had received the revised specification with lowered performance expectations and whether Kodak sufficiently highlighted any significant changes to Omega. (Compare Exh. 6 (dated 3/19/86), Exh. 196, at Tab 24 (dated 10/24/88 with revisions on 1/11/89, 5/2/89, 6/21/89 and 9/18/89), with Exh. 64 (dated effective 6/1/88)). While Omega claimed they never received the later specifications, Dickinson testified he had a habit of dropping them off at each visit, a claim supported by contemporaneous notes. In Section I.G supra, the Court found that Omega was informed of the revised shelf life claims at least as early as February 1988. Therefore, Omega cannot claim the existence of an express warranty for ten-year shelf life for any batteries delivered at any time after that. In any event, once any warranty language is established, a plaintiff must prove that such warranty was breached. In this case, Omega presented no rehable evidence of any defective batteries. The two Omega products referenced in Count Five (which supposedly leaked electrolyte and which Omega allegedly replaced at a cost of $1,400) were not offered into evidence. Omega offered one allegedly damaged instrument at trial (Exh. 214), but could not eliminate the possibility of customer misuse or state with sufficient certainty the circumstances under which that battery appears to have failed. (9/27/96 Tr. at 219-24). As to the batteries that Jobaggy tested from the inventory in 1991, ultimately, the Court is confronted with an incomplete, slightly unorthodox testing of batteries by a non-expert after the litigation had been filed. No defective batteries were offered as evidence. No expert testimony was offered with respect to particular batteries that Omega felt were defective. The tests were conducted against the original specification and not the updated specifications in effect for the bateh of batteries tested. The results of the test were analyzed by Jobaggy incorrectly. The batteries were tested against drain rates that were atypical for Omega applications. In sum, as a matter of proof, the Jobaggy tests were insufficient to prove damages for breach of warranty for shelf life claims. The remaining statements claiming “impermeability” and that the batteries were “perfect for long term intermittent rest applications” are too general to create an express warranty. The Uniform Commercial Code recognizes that some statements of sellers are merely “puffing” and do not create express warranties. Section 42a-2-813(2), for example, provides that “an affirmation merely of the value of goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.” Drawing the line between puffing and the creation of a warranty is often difficult, but several factors have been identified as helpful in making that determination. One such factor is the specificity of the statement made. A statement such as “this truck will give not less than 15.1 miles to the gallon when it is driven at a steady 60 miles per hour” is more likely to be found to create an express warranty than a statement such as “this is a top-notch car.” Statements to the effect that a truck was in “good condition” and that the motor was in “perfect running order” have been held not to create express warranties. Another factor to be considered in determining whether a statement creates an express warranty is whether it was written or oral, the latter being more likely to be considered puffing. Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 351-52, 525 A.2d 57 (1987) (citations omitted). While several of the statements regarding impermeability were in writing, many were not. In addition, some of the statements were tempered with language that would alert a prudent buyer to the possibility of puffing. For example, if a battery were literally impermeable, the seller would not admit to testing power- cells for “minute leaking” or alternatively refer to the battery as “tightly sealed.” (See Section I.D supra). Moreover, Omega presented no evidence that leaking batteries caused any damage to its products. Similarly, statements that a product is “perfect” for a particular application amount to puffery under the circumstances of this case. First, a claim of “perfection” should be viewed skeptically as it is usually an abstract statement that a particular product meets an ideal standard, and is usually made by a sophisticated seller targeting an equally sophisticated buyer. Here, the claim of perfection is more akin to a claim that the Ultralife satisfies the requirements for a particular application. Second, and more fundamentally, there was no evidence that the Ultralife did not meet the requirements of “long term intermittent rest applications” such as being used in a digital volt ohm meter. Third, under the circumstances of this case, the statement is more akin to a mere “opinion or commendation of the goods” so as not to create a warranty. Web Press, 203 Conn, at 351-52, 525 A.2d 57. Finally, Omega presented no evidence that it was damaged in any way by the Ultralife’s “failure” to live up to the statement that the battery was perfect for long term intermittent rest applications. Omega failed to meet its burden of proof with respect to its claims for breach of express warranty. The statements relied upon by Omega were not of the type to create an express warranty for the various reasons set forth above and Omega failed to prove damages for breach of express warranty. To the extent Omega claims damages for defective batteries, customer returns, lost profits and lithium battery acquisition, the failure to meet its burden with respect to these types of damages is set forth in greater detail in Section II.H infra. 2. BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY In Count Four, Omega contends generally that with respect to shelf life claims, the Ultralife batteries purchased from Kodak “fail to conform to the promises and affirmations of fact contained in Kodak’s marketing brochures describing the product.” (Dkt.# 246, ¶ 56). In addition, Omega contends that with respect to electrolyte leakage claims, the Ultralife batteries “fail to conform to the implied warranty of merchantability ... and fail to conform to the promises and affirmations of fact contained in Kodak’s marketing brochures describing the product.” (Id. ¶ 64). Omega contends that it seasonably notified Kodak of the breach of warranty. (Id. ¶ 66). Kodak specifically denies Omega’s allegations in the complaint with respect to breach of implied warranty of merchantability. (See Dkt. #247, ¶¶ 49-67). In addition, Kodak argues that Omega has not shown that any Ultralife batteries delivered to it were not merchantable or fit for their ordinary purpose. On the contrary, the evidence is clear that the Ultralife batteries that were delivered to customers performed well, and there is no conflicting evidence except the tests performed by Jobaggy. There is insufficient evidence, however, that the batteries tested by Jobaggy were stored properly or that they were tested to appropriate standards. (Dkt. # 337, at 14-15, ¶ 20). Conn. Gen. Stat. § 42a-2-314 sets forth the implied warranty of merchantability, which is implied in any sale of goods by a merchant seller. Standard Structural Steel v. Bethlehem Steel Corp., 597 F.Supp. 164, 187 (D.Conn.1984). In contrast to the warranty of fitness for a particular purpose, the implied warranty of merchantability is the broadest and most important warranty in the Uniform Commercial Code. Id. (citing Schenck v. Pelkey, 176 Conn. 245, 253-54, 405 A.2d 665 (1978)). To recover under this section, “a plaintiff must prove (1) that a merchant sold goods, (2) which were not ‘merchantable’ at the time of the sale, and (3) injury and damages to the plaintiff or his property, (4) [were] caused approximately and in fact by the defective nature of the goods, and (5) [that] notice [was given] to the seller of the injury.” Standard Structural Steel, 597 F.Supp. at 187 (quoting White & Summers). “The implied warranty of merchantability holds merchants liable to the extent their goods fail to conform to the ordinary purpose for which they are supposed to be used.” Moldex, 652 F.Supp. at 590. Goods to be merchantable must be at least such as (a) pass without objection in the trade under the contract description; and (b) in the case of fungible goods, are of fair average quality within the description; and, (c) are fit for the ordinary purpose for which such goods are used; and (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and (e) are adequately contained, packaged, and labeled as the agreement may require; and, (f) conform to the promises or affirmations of fact made on the container or label if any. Conn. Gen. Stat. § 42a-2-314(2). Omega did not prove at trial that any Ultralife batteries delivered to it were not merchantable or fit for the ordinary purpose for which they were to be used. No defective batteries were introduced into evidence. No customers testified regarding defective batteries. The Black & Decker situation raised technical issues only with regard to particular Black & Decker products such as the high-drain flashlight program, whic