Guidance Endodontics, LLC v. Dentsply International, Inc. (743 F. Supp. 2d 1235, 2010)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Dentsply/TDP’s Motion for a New Trial Due to Guidance’s Prejudicial Mid-Trial Switch in Position on Whether the V2 is a “New Product” and Error in Jury Instruction 21, filed February 10, 2010 (Doc. 502). The Court held a hearing on March 22, 2010 through March 24, 2010. The primary issues are: (i) whether Plaintiff Guidance Endodontics, LLC changed its litigation position mid-trial, to the prejudice of Defendants Dentsply International, Inc. (“Dentsply”) and Tulsa Dental Products, LLC (“TDP”); (ii) whether the doctrine of judicial estoppel prohibited Guidanee from changing its position regarding the correct interpretation of the parties’ Manufacturing and Supply Agreement; (iii) whether the Court erred in one of the jury instructions; (iv) whether the Defendants preserved the above errors for post-trial review; and (v) whether the Court’s errors, if any, warrant granting the Defendants a new trial on Guidance’s breach-of-contract claim. Because the Court finds that any surprise to the Defendants could not have been prejudicial, and because the Court determines that there was no error in Instruction 21, the Court denies the motion.

FACTUAL BACKGROUND

The suit is a contract dispute that Guidance, a small endodontic-equipment company, brought against the larger Defendants, who were both Guidance’s rivals and its suppliers. More background on the lawsuit is set forth in one of the Court’s earlier opinions. See Guidance Endodontics, LLC v. Dentsply Int’l, Inc., 633 F.Supp.2d 1257, 1260-67 (D.N.M.2008) (Browning, J.). The Defendants are manufacturers and suppliers of a variety of dental/endodontic products that compete with Guidance’s products, including endodontic obturators, files, and ovens. Guidance and the Defendants were parties to a Manufacturing and Supply Agreement, which arose out of a settlement of a separate intellectual-property dispute. The Supply Agreement required the Defendants to supply Guidance with endodontic files, obturators, and ovens, which Guidance would then sell to end-users.

Guidance began selling those endodontic products at low prices compared to the prices that the Defendants charged for the same or similar products. Allegedly as a dirty business tactic to keep Guidance from underselling them in the marketplace, the Defendants stopped supplying endodontic obturators to Guidance. The Defendants told Guidance that they were ceasing to supply obturators because they heard that Guidance was telling its customers and potential customers that the Defendants manufactured the products, which, they alleged, would be in violation of the Supply Agreement. In addition to ceasing to supply obturators, the Defendants refused to manufacture a new endodontic file — the V2 file — which Guidance was intending to sell. The Defendants contended that the Supply Agreement required Guidance to supply them with detailed engineering drawings before they were obligated to supply the V2 file. Guidance disputes that the Supply Agreement requires them to provide engineering drawings as a prerequisite to the Defendants producing the V2. Finally, the Defendants waged an organized marketing campaign to drive Guidance out of business, which included sales staff falsely representing to actual and potential Guidance customers that Guidance was no longer able to supply endodontic files. Based on these three categories of conduct, Guidance filed this suit.

Article 4.5 of the Supply Agreement governs new products: “New Products. If Guidance desires to have TDP manufacture endodontic files or obturators, which are improvements or successor products (of similar design) to the Guidance Files or Guidance Obturator, Guidance will present product specifications to TDP for such products.” Doc. 2.1 ¶ 4.5, at 6. Exhibit 1 to the Supply Agreement can be separated into and referenced by two distinct sections. The first part of Exhibit 1 — located at page 24 of 43 in the CWECF pagination — purports to be a list of the initial Guidance Products in development at the time that the parties executed the Supply Agreement. See Doc. 2-1, at 24. The first paragraph of the first part of Exhibit 1 states:

The following is a list of products/specifications for the Guidance Products. Guidance from time to time may make minor changes (not to exceed 3 minor changes per year utilizing stock materials and/or processes validated on existing production equipment and complete with engineering drawings detailing product specs and tolerances) to the .04 and .06 taper files by changing the tip, number of flutes, and color of stopper on the files, provided that in any event, TDP shall not be required to make any prototypes for any such changes and TDP would have 120 days from the request to implement the changes on prospectively produced products. Any dissatisfaction of Guidance with such changed files shall be at its risk and shall not constitute the basis for a claim of a non-conforming product.

Doc. 2-1, at 24 (bold in original). Like Article 4.5, the second part of Exhibit 1 to the Supply Agreement also addresses new products. The first paragraph of that second part states:

The following is a list of possible products that Guidance may desire for Dentsply Tulsa to manufacture. These products are subject to Paragraph 4.5 of the Agreement. In addition, Guidance agrees that none of the following additional products will be prototyped for a period of eighteen months after the Effective Date of the Agreement and, in the case of niti instruments, no more than two rounds of prototypes of any instrument will be provided by Dentsply. If additional prototypes are requested, Guidance will be charged a fee for each round of prototypes. All requests for prototypes under this agreement must be submitted with engineering drawing(s) complete with product specs and tolerances.

Doc. 2-1, at 25 (bold in original).

PROCEDURAL BACKGROUND

On November 21, 2008, Guidance filed a Complaint in federal district court asserting several causes of action against the Defendants, including breach of contract. See Complaint ¶¶ 158-187, at 30-33. At that time, Guidance referred to the V2 file as a “new Guidance product[.]” Complaint ¶ 171, at 31. Guidance also expressed a belief that Article 4.5 of the Supply Agreement applied to the production of the V2 file, as demonstrated by Guidance alleging that the Defendants breached Article 4.5 by demanding engineering drawings before they would produce the V2. See Complaint ¶¶ 169-179, at 31-32.

The position that Article 4.5 applied to the V2 was more clearly stated in Guidance’s Memorandum in Support of Application for Temporary Restraining Order, filed November 21, 2008 (Doc. 4)(“TRO App. Memo.”). In that memorandum, Guidance stated:

Pursuant to Article f.5 of the Supply Agreement, if Guidance desired to manufacture new products it was to submit “product specifications” to defendant TDP for such products. (Compl. ¶ 91). On or about September 2, 2008, Guidance submitted such “product specifications” and a prototype acceptable to Guidance was developed at the Plant. (Compl. ¶¶ 92,102).

TRO App. Memo, at 11 (emphasis added). Guidance filed a declaration by Goodis in support of the TRO application. See Declaration of Charles J. Goodis in Support of Plaintiffs Application for Temporary Restraining Order (executed Nov. 21, 2008), filed November 21, 2008 (Doc. 5)(“Goodis Decl.”). In his declaration, Goodis refers to the V2 as a “new File,” Goodis Decl. ¶ 8, at 2, and a “next-generation file[ ],” id. ¶ 27, at 6.

At the TRO hearing, on November 25, 2008, Thomas Gulley, the Defendants’ attorney, stated the Defendants’ belief that the first part of Exhibit 1 governed the production of the V2:

MR. GULLEY: ... The first page of Exhibit 1 ... at the top in the bold print there is itemization there of what is required for products that have minor changes to them. My clients believe that this V2-Taper product is a change to the EndoTaper that my clients have been making, and the important part of this bolded print is that it begins in the fourth line there that these changes must come complete with engineering drawings, detailing product specs and tolerances.

Transcript of Hearing at 8:16-9:1 (taken Nov. 25, 2008), filed December 9, 2008 (Doe. 25)(“Nov. 25 Tr.”)(Gulley). At that same hearing, in response to cross-examination by Mr. Gulley, Goodis testified that the first part of Exhibit 1 applied to the V2 file:

Q. If you would, look at the first page of — -Well, take a look at Exhibit 1. In order to have Dentsply produce the V2 for you, where would that be covered on Exhibit 1?

A. Are you asking throughout the document, or does it state the V2?

Q. No. I’m just asking on Exhibit 1. Where does the V2 come in?

A. It was not specified by name as a V2.... It’s under the — under a size for the EndoTaper.... Where it says under number 3, “EndoTaper constant taper sizes.”

Q. So are you saying that number 3, the EndoTaper constant taper size, on that page is where the V2 falls?

A. That’s where the V2 would fall.

Transcript of Hearing at 132:10-134:20 (taken Nov. 26, 2008), filed December 9, 2008 (Doc. 26)(“Nov. 26 Tr.”)(Gulley, Goo-dis). Goodis testified similarly on December 5, 2008, under questioning by John Kelly, Guidance’s attorney:

Q. ... In the court most of the last four days we’ve been using two terms, EndoTaper file and V2 file.

A. Yes.

Q. Do those terms relate to what’s described on page — -first page of Exhibit 1 as an .04 taper file and a .06 taper file? A. Yes.

Q. Okay. Which is which?

A. The EndoTaper would be an .06 taper file, and the V2 would be an .04 taper file.

Transcript of Hearing at 342:15-25 (taken Dec. 5, 2008), filed December 9, 2008 (Doc. 28)(“Dec. 5 Tr.”)(Kelly, Goodis). In closing argument in the TRO hearing, Mr. Gulley again represented that it believed the V2 was covered by the first part, rather than the second part, of Exhibit 1. See Transcript of Hearing at 570:4-13, 570:21-571:7 (taken Dec. 8, 2008), filed December 14, 2008 (Doc. 29)(“Dec. 8 Tr.”)(Court, Gulley). Mr. Gulley disclaimed reliance on a sentence in the second part of Exhibit 1 that states that “[a]ll requests for prototypes under this agreement must be submitted with engineering drawing(s) complete with product specs and tolerances.” Dec. 8 Tr. at 570:4-17 (Court, Gulley).

During the preliminary-injunction hearing, Mr. Kelly stated that “it’s clear from the first page of Exhibit 1 ” that the Defendants are “obligated to manufacture the .... 04 constant-taper file.” Transcript of Hearing at 15:13-17 (taken Dec. 17, 2008), filed February 9, 2009 (Doc. 55)(“Dee. 17 Tr.”)(Kelly)(emphasis added). He clarified that the .04 constant-taper file is alternatively known as the V2 file. See Dec. 17 Tr. at 10:20-24, 11:17-21, 12:7-13 (Kelly). Mr. Kelly closed his argument on December 18, 2008 in part by stating:

[W]e all may be a little bit hung up on the fact that [the .04 constant-taper file is] called a V2 file, but the testimony by the people most knowledgeable ... [was] very clear that the Y2 file ... is a .04 constant-taper file and that that file is specifically listed on [the first part of Exhibit 1 to the Supply Agreement]. And, indeed, there is listed in the middle of the page a .04 taper file.

Transcript of Hearing at 140:4-18 (taken Dec. 18, 2008), filed February 17, 2009 (Doc. 57)(“Dec. 18 Tr.”)(Kelly).

Various witnesses’ deposition testimony likewise corroborated that the V2 was a product listed on the first part of Exhibit 1, and not a New Product subject to Article 4.5. James Mosch, Dentsply’s Senior Vice President, testified that he believed the .06 and .04 constant-taper files, were Guidance Products which the first part of Exhibit 1, rather than by Article 4.5, governed. See Guidance’s Opposition to Dentsply/TDP’s “Motion for a New Trial on Whether the V2 is a ‘New Product’ and Error in Jury Instruction 21” [Doe. 502] at Exhibit B, filed February 24, 2010 (Doc. 510) (“Response”)(May 21, 2009 deposition of Mosch). Bill Newell, TDP’s Vice President and General Manager, testified in deposition that he believed Guidance’s obligation to supply engineering drawings arose, at least in part, from the first part of Exhibit 1. See Response Exhibit C (May 14, 2009 deposition of Bill Newell).

Guidance filed a Motion to Amend Complaint, with a proposed amended complaint, on August 31, 2009. See Plaintiffs Motion to Amend Complaint and for Leave to File Exhibits in Excess of 50 Pages, filed August 31, 2009 (Doc. 286). The Court denied Guidance’s request to amend the Complaint, noting: “The Court is convinced ... that Guidance unduly delayed in moving to amend its Complaint and that the amendment would cause undue prejudice to the Defendants.” Memorandum Opinion and Order at 2, filed September 29, 2009, 2009 WL 3672505 (Doc. 384). Nevertheless, the proposed amended complaint, like the Complaint, stated that V2 was a new file and alleged that the Defendants violated Article 4.5 of the Supply Agreement by demanding engineering drawings before they would produce it. See Proposed First Amended Complaint and Demand for Jury Trial ¶¶ 225-235, at 41-42, filed August 31, 2009 (Doc. 286-l)(“Prop’d First Am. Compl.”).

In the proposed Pretrial Order, which the parties submitted to the Court on August 31, 2009, Guidance arguably maintained that the V2 file was a new product subject to Article 4.5 and that the Supply Agreement was unambiguous. See Exhibit A: Factual Contentions Underlying Claims/Defenses ¶¶ 66-90, at 14-17, filed October 9, 2009 (Doc. 434-l)(Attachment to the Pretrial Order). Guidance did not, however, state that it was subject to Article 4.5; rather, Guidance contended that:

66. In September 2008 Guidance was in the process of developing a new file, called the V2 file, an .04 constant taper file.

67. The V2 file was to replace Guidance’s older V-Taper file that was manufactured by Guidance’s previous manufacturer.* [sic]

69. Guidance also included “product specifications” as required by the Supply Agreement.* [sic]

Exhibit A: Factual Contentions Underlying Claims/Defenses ¶¶ 66-69, at 14 (emphasis added). As the Defendants point out, the statement that Guidance “included ‘product specifications’ as required by the Supply Agreement,” id. ¶ 69, at 14, appears to be an implicit reference to Article 4.5, which places upon Guidance an obligation to supply “product specifications” when it requests that the Defendants manufacture “new products” which are “improvements or successor products ... to the Guidance Files or Guidance Obturators,” Doc. 2-1, ¶ 4.5, at 6.

At trial, many of the exhibits — most or all of which pre-dated the trial itself — also supported the assertion that the V2 and the .04 constant-taper file on the first part of Exhibit 1 were one and the same. See Response Exhibits E-H (electronic-mail transmissions, Plaintiffs Trial Exhibits 763, 437, 621, and 6). Moreover, testimony at both the beginning and end of the trial, either from Guidance’s witnesses or elicited by Guidance, also supported finding that the V2 and the .04 constant-taper file were the same. See Transcript of Trial at 745:11-747:2 (taken Sept. 23, 2009), filed December 14, 2009 (Doc. 485)(Gulley, Goo-dis)(Goodis testifying that the .04 constant-taper file listed on the first part of Exhibit 1 is the V2); Transcript of Hearing at 22:9-24:17 (taken Oct. 6, 2009), filed January 19, 2010 (Doc. 500)(“Oct. 6 Tr.”)(Kelly, Littleton)(Littleton testifying that the V2 is a .04 constant-taper file). In the end, neither side treated the Y2 as a new product under Article 4.5, and neither side argued that the “new product” paragraph at the bottom of the second part of Exhibit 1 applied to the V2.

1. Guidance’s Alleged Mid-Trial Reversal of Position.

Until October 2, 2009, neither party had specifically contended that the Supply Agreement was ambiguous or explicitly asked the Court to construe it. On October 2, 2009, the Court brought the issue up sua sponte, outside the jury’s presence. At that time, the Court noted:

Now, something that I have been interested in and not sure where the parties are going, is that nobody has argued this contract is ambiguous, so if everybody’s going to take the position that it’s unambiguous, then a lot of this course-of-dealing issue is not going to be relevant. ... [Bjoth sides have been rather adamant that it’s clear on the face.

Transcript of Trial at 2628:10-19 (taken October 2, 2009), filed May 10, 2010 (Doc. 561) (“Oct. 2 Tr.”)(Court). At that time, Kyle Bisceglie, Guidance’s attorney, responded that he believed the Supply Agreement was unambiguous, but Mr. Kelly stated for the first time that there was one issue that was arguably ambiguous. See Oct. 2 Tr. at 2629:11-16 (Court, Bisceglie)(“THE COURT: ... Everybody’s taken the position that it’s unambiguous. And, so ... MR. BISCEGLIE: Right. Yep.”); id. at 2632:7-17 (Court, Kelly)(“MR. KELLY: I think I may want- and, obviously, have to talk to Kyle — to identify at least one small issue that I think may be ambiguous in the contract that we haven’t ... explicitly brought”). Mr. Gulley also took the position that the Supply Agreement was unambiguous. See Oct. 2 Tr. at 2631:5-10 (Court, Gulley)(“MR. GULLEY: Our position is it’s not ambiguous.”). At the end of the day, however, Mr. Kelly stated that he believed Exhibit 1 was “arguably ambiguous.” Oct. 2 Tr. at 2768:6-2770:8 (Kelly).

When Mr. Kelly raised the fact that Exhibit 1 might be ambiguous, the Court and parties discussed what might be the proper roles of judge and jury in resolving the ultimate disputes between the parties. Some time into that discussion, Mr. Gulley raised the issue that Guidance had been relying on Article 4.5 for its contract claim and that Mr. Kelly’s asserted ambiguity might be inconsistent with that prior position. See Oct. 2 Tr. at 2778:17-2779:12 (Gulley). Mr. Kelly responded by noting that the Defendants had not filed a motion to dismiss or for summary judgment on the breach-of-contract claim and that nobody had expressly raised the issue of ambiguity in Exhibit 1. See Oct. 2 Tr. at 2779:16-21 (Kelly).

On October 4, 2009, Guidance filed a motion asking the Court to determine whether the Supply Agreement was ambiguous. See Motion to Determine Whether Contract Provision is Ambiguous and to Allow Consideration of Expert Testimony on Trade Usage, Custom and Practice to Interpret Ambiguous Provision, filed October 4, 2009 (Doc. 404)(“Ambiguity Motion”). The Defendants refer to this motion as the first time that Guidance had, on paper, eschewed its theory that the V2 file was a “New Product” which Article 4.5 governed. See Motion at 6. In that brief, Guidance first articulated a theory of the case that points to a disagreement whether the word “files” in the first part of Exhibit 1 refers to files in production or something else. Ambiguity Motion at 3. The other purpose of the motion was to advocate that the jury, not the Court, should resolve the contract’s ambiguities. See id. at 4-7.

On October 5, 2009, in discussing Guidance’s motion, the Court stated that it was inclined to instruct the jury that engineering drawings were required, thus narrowing the issue to whether the documents that Guidance provided were detailed engineering drawings. See, e.g., Transcript of Trial at 2914:20-23 (taken October 5, 2009), filed May 17, 2010 (Doc. 568)(“Oct. 5 Tr.”) (Court)(“THE COURT: ... I probably am inclined to do no more than say it does require detailed drawings and then ... leave it to the jury to determine whether detailed drawings were submitted.”). The following day, however, the Court concluded that there was ambiguity in the Supply Agreement whether it required Guidance to provide detailed engineering drawings for the V2. See, e.g., Oct. 6 Tr. 10:7-11 (Court)(“THE COURT: ... I think it’s a very close call whether the contract is ambiguous at all. [But] I have concluded that it is[.]”); id. at 11:4-7 (Court)(“THE COURT: ... So, I think in the end there is ambiguity, but I think that the evidence seems to rather strongly indicate that the proper construction is that detailed engineering drawings were required.”).

On the afternoon of October 6, 2009, after the Court’s comments earlier in the day, Guidance filed a letter with the Court stating that it believed the V2 file was “listed in the first part of Exhibit 1, # 3.” Letter from John Kelly to the Court at 1 (dated Oct. 6, 2009), filed October 6, 2009 (Doc. 411). In response, on October 7, 2009, the Defendants filed a letter arguing that Guidance was changing its long-held position that the V2 was governed by Article 4.5 of the Supply Agreement, which referred to New Products. See Letter from Thomas Gulley to the Court at 1-3 (dated Oct. 7, 2009), filed October 7, 2009 (Doc. 415). In that letter, Gulley relied on more-or-less the same doctrines and arguments presented in this motion.

2. The Jury Returns a Verdict for Guidance, and the Court Enters Judgment.

The jury trial in this case lasted three weeks, running from September 21, 2009 through October 9, 2009. See Clerk’s Minutes Before the Honorable James O. Browning at 1, filed September 21, 2009 (Doc. 439). On Wednesday, October 7, 2009, the Court read the instructions to the jury. See id. at 40. Those instructions included Guidance’s claims for breach of contract, breach of the implied covenant of good faith and fair dealing, violation of the New Mexico Unfair Practices Act, NMSA 1978, § 57-12-1 through § 57-12-26 (“NMUPA”), and violation of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), but made no direct reference to Article 4.5. See Court’s Final Jury Instructions (Given), Instruction No. 18, at 18, filed October 8, 2009 (Doc. 430). The Court had dismissed Guidance’s other claims before trial. Instruction No. 21, as given to the jury for its deliberations, stated:

INSTRUCTION NO. 21

The contract is ambiguous whether it required Guidance to provide Dentsply and/or Tulsa Dental with detailed engineering drawings before Dentsply and/or Tulsa Dental would produce the V2 file. You must determine whether the “.04 Taper” under the section titled “3. EndoTaper Constant Taper Sizes” on the first page of Exhibit 1 to the Manufacturing and Supply Agreement refers to the V2. If the “.04 Taper” under the section titled “3. EndoTaper Constant Taper Sizes” on the first page of Exhibit 1 of the Manufacturing and Supply Agreement does not refer to the V2, then Guidance was required to provide Dentsply and/or Tulsa Dental with such engineering drawings.

If you determine that the V2 and the .04 Taper are the same, there is a further ambiguity what the word “files” means in the bold paragraph at the top of page 1 on Exhibit 1 of the contract. If you find that the word “file” in the fifth sentence of the paragraph refers to frozen designs of files, and find that Guidance froze the design of the V2, then after that, engineering drawings for the V2 detailing product specs and tolerances were required for minor changes. If, on the other hand, you find that the word “file” refers only to files in production, the Manufacturing and Supply Agreement does not require Guidance to provide Dentsply and/or Tulsa Dental with engineering drawings detailing product specs and tolerances until it makes minor changes to the files in production.

Court’s Final Jury Instructions (Given), Instruction No. 21, at 21.

The jury deliberated for approximately two days. On October 9, 2009, the jury returned a verdict largely in favor of Guidance. The jury found that the Defendants breached the Supply Agreement with regard to its failure to supply obturators and its failure to produce the V2 file, and found that breach caused Guidance damages. See Verdict Form ¶¶ 2-4, at 2, filed October 9, 2009 (Doc. 441). The jury also found that the Defendants breached the implied covenant of good faith and fair dealing and violated the NMUPA, and found that both infractions caused damages to Guidance. See id. ¶¶ 5-12, at 2-8. The jury awarded Guidance $500,000.00 in compensatory damages for past harm caused by the breach of contract related to the V2, and $8,580,000.00 in future damages related to that breach. See Verdict Form ¶¶ 15-16, at 4. The jury also found that Guidance was entitled to nominal damages of $200,000.00 for the Defendants’ unlawful conduct. See Verdict Form ¶¶ 17-21, at 4-5. Finally, based on the breach of the implied covenant and violation of the NMUPA, the jury awarded Guidance punitive damages of $40,000,000.00. See Verdict Form ¶¶ 22-23, at 5-6.

The jury also found that Guidance breached the Supply Agreement and willfully engaged in false advertising in violation of the Lanham Act, 15 U.S.C. § 1125. See Verdict Form ¶¶ 24-27, at 6-7. The jury awarded the Defendants $93,000.00 in compensatory damages. See id. ¶ 35, at 8.

On October 22, 2009, Guidance filed a motion asking the Court to enter a final judgment in conformity with the jury’s verdict. See Motion for Entry of Final Judgment, filed October 22, 2009 (Doc. 450). The Court granted the motion in part, see Order, filed March 31, 2009 (Doc. 537) , and entered a judgment similar to the judgment that Guidance sought, see Final Judgment, filed March 31, 2010 (Doc. 538) . This motion is one of several that the Defendants have filed in an effort to avoid the award against it.

3. The Parties’Arguments.

The Defendants now move for a new trial pursuant to rule 59 of the Federal Rules of Civil Procedure. They present two primary arguments in support of this motion: (i) that Guidance switched theories mid-way through the trial and that the Court should grant the Defendants a new trial based on the prejudice that Guidance’s conduct caused; and (ii) that the Court erred in jury instruction 21, which warrants a new trial. See Motion at 2. With respect to the first argument — Guidance’s alleged mid-trial change in theory— the Defendants point primarily to Guidance’s theory that the Defendants’ demand for engineering drawings violated Article 4.5 of the Supply Agreement as proof that Guidance believed that the V2 file fell under the second portion of Exhibit 1, rather than the first. See Motion at 2-3 (citing Complaint ¶¶91, 171-74, at 19, 31-32). They also argue that Guidance and Guidance’s witnesses referred to the V2 as a “new product,” to which Article 4.5 applies. See Motion at 2-3 (citing Complaint ¶¶ 91, 171-74, at 19, 31-32). The Defendants insist that such references to the V2 being a “new product” governed by Article 4.5 began as early as the original Complaint, continued into the proposed Amended Complaint, and even made it to the Pretrial Order in this case. See Motion at 4. They argue that “[t]he first hint that Guidance might take a new position on the application of Article 4.5 to the V2 came nearly two weeks into the three-week trial.” Motion at 5. The Defendants recount their view of how the trial played out and accuse Guidance’s attorneys of changing their theory by stating, for the first time, on October 2, 2009, that the Supply Agreement might be ambiguous, and by asserting a second alleged ambiguity in the Supply Agreement by letter brief filed on October 6, 2009. See Motion at 5-8.

The Defendants insist that Guidance’s change in position surprised and prejudiced them. See Motion at 8. They assert first that it is clear that Guidance’s ending position was that the V2 was not a “new product” subject to Article 4.5, and that this position is clearly opposite Guidance’s initial position, which was that the Defendants violated Article 4.5 by requiring engineering drawings before producing the V2. See Motion at 9. They then argue that this surprise unfairly prejudiced them because, had they known of this new theory, they would have sought evidence — both in discovery and through cross-examination at trial — which would have proved that the V2 was, in fact, a new product governed by Article 4.5. See Motion at 9-11. Because Guidance made them believe that the applicability of Article 4.5 was uncontroverted, they argue, Guidance’s sudden change in position prejudiced them. See id. The Defendants argue that, absent Guidance’s change in tactics, the jury “would likely not have found for Guidance on the question whether Dentsply/TDP breached the Supply Agreement with respect to the V2 file.” Motion at 11. They assert that they were likely to win on the merits because, until Guidance proposed this ambiguity whether Article 4.5 governed the V2, the Court was inclined to instruct the jury that Guidance was required to supply engineering drawings and there was no evidence in the record that the documents that Guidance submitted were “engineering drawings complete with product specs and tolerances.” Motion at 11-12. The Defendants argue that they were prejudiced because they had no adequate opportunity to respond to Guidance’s change in position, as it occurred after they had rested their case-in-chief and, in part, after the Court had instructed the jury. See Motion at 12. Finally, while the Defendants concede that they must, to properly preserve the error for post-trial consideration, take steps to cure it at trial, they argue that they did everything they reasonably could by making timely, specific objections and arguing that the Court should exclude Guidance’s new theory. See Motion at 13.

The Defendants’ second argument is that the Court should have prohibited Guidance’s new theory under the doctrine of judicial estoppel. See Motion at 14-16. They assert that Guidance consistently argued that the V2 was a new product and that Article 4.5 of the Supply Agreement governed its production, and that the Court adopted that legal position. See Motion at 14-15. Because the Court adopted Guidance’s prior position, the Defendants assert, Guidance is prohibited from adopting a legal position contrary to the one that the Court adopted. See id. at 14-16.

The Defendants’ next basis for requesting a new trial is that the Court allegedly erred in giving Instruction 21 of the Final Jury Instructions. See Motion at 16-27; Court’s Final Jury Instructions (Given), Instruction No. 21, at 21, filed October 8, 2009 (Doc. 430). The Defendants argue, however, that the Supply Agreement unambiguously requires engineering drawings for production of the V2 file, regardless whether the V2 falls under the first or second part of Exhibit 1. See Motion at 16-21. The Defendants bolster their argument by stating that the indemnity agreement of Article 6.2 supplies further support for the idea that Guidance was required to supply engineering drawings, because the contract puts liability for designs that infringe other parties’ patents on Guidance. See Motion at 20.

The Defendants then make several other arguments why Instruction 21 was erroneous. First, the Defendants argue that it was error to ask the jury if the .04 constant taper file referred to on the first page of Exhibit 1 was the V2, because there is reference to a .04 constant taper file in both the first and second parts of Exhibit 1. See Motion at 23-24. They argue that the correct instruction would have told the jury to determine whether the V2 was the .04 constant-taper file in the first part of Exhibit 1, or was a “new product” subject to Article 4.5 and the second part of Exhibit 1. See Motion at 24-25.

Second, the Defendants assert, Instruction 21 should not have asked the jury to determine whether the word “files” in the first part of Exhibit 1 referred to frozen designs of files or files in production, both because the issue was not raised to the Court until after the Court had instructed the jury, and because there was “nothing in the Supply Agreement to suggest that ... the parties intended the word ‘files’ to mean only ‘files in production.’ ” Motion at 25-26. They also argue that the meaning of the word “files” in the first paragraph of Exhibit 1 is unambiguous, and argue that interpreting it to mean “files in production” would illogieally allow Guidance to make infinite changes to a file design without providing engineering drawings until it is both frozen and produced. Motion at 25-26. Another illogical result of concluding that “files” means “files in production,” the Defendants assert, is that it would mean that the V2 was in the first part of Exhibit 1 for the purposes of avoiding the requirement of engineering drawings, and yet not in the first part of Exhibit 1 for the purpose of limiting the number and permissible kinds of changes. See Motion at 26.

Finally, the Defendants insist that Instruction 21 erroneously allowed the jury to conclude that engineering drawings were required for more-than-minor changes after the file design was frozen. See Motion at 27. They assert that the changes that Goodis sought to make after freezing the design of the V2 file the first time were not minor changes and thus that Guidance was required to supply TDP with engineering drawings before making those changes. See Motion at 27.

Guidance’s response brief focuses primarily on the allegation that it changed its theory midway through the trial. It argues that the Defendants have been aware since very early in the litigation process that Guidance believed that the V2 was the .04 constant-taper file identified in the first part of Exhibit 1, See Response at 1-2, and that their arguments to the contrary are “as untenable as [they] are disingenuous,” Response at 2. Guidance asserts that neither party treated the V2 as a “new product” subject to Article 4.5. Guidance cites to statements in the TRO hearing, the Preliminary Injunction hearing, depositions, and at trial that indicated that both parties believed that the first part of Exhibit 1 governed the production of the V2. See Response at 5-10. If either party had believed that the V2 was a new product, Guidance asserts, there would have been no lawsuit because the express terms of the second part of Exhibit 1 dictates that any “new product” covered by that part “will [not] be prototyped for a period of eighteen months after the Effective Date of the Agreement,” Doc. 2-1, at 25, and therefore Guidance would not have been entitled to have the V2 produced until January 29, 2010, See Response at 3, 12. Rather, Guidance contends that the Defendants were indisputably aware that it believed the V2 was the same as the .04 constant-taper file listed in the first part of Exhibit 1 and that it did not believe the V2 was a “new product” subject to Article 4.5. Response at 12-13.

Guidance next argues that the Defendants’ authority does not stand for the proposition that alleged “surprise and prejudice” warrants a new trial. Response at 13-15. Instead, Guidance argues, the principles in the cases that the Defendants cite are limited to cases in which a party presents expert testimony that was not properly disclosed as rule 26(a)(2) requires. See Response at 13-14. It also asserts that the Defendants have not fully satisfied the tests set forth in the case law, as they have failed to “show ‘an attempt to cure the prejudice such as a motion for a continuance,’ ” Response at 14 (quoting Hynes v. Energy W., Inc., 211 F.3d 1193, 1203 (10th Cir.2000)), and did not show that Guidance acted with “bad faith or willfulness,” Response at 14 (citing Nalder v. W. Park Hosp., 254 F.3d 1168, 1177 (10th Cir.2001)). Guidance also argues that, to the extent it referred to Article 4.5 of the Supply Agreement, the Court properly overlooked that as an error, and correctly allowed it to go forward on its other theory because the Defendants were put adequately on notice of the claim. See Response at 15. Moreover, Guidance asserts, the Defendants did not allege surprise or prejudice until the Court announced that it might construe Exhibit 1 as not requiring engineering drawings if the V2 was the .04 constant-taper file on page 1. See Response at 16-17. Guidance accuses the Defendants of being the ones who changed their position on interpretation of the Supply Agreement in the midst of trial. See Response at 17.

Guidance next opposes the Defendants’ judicial estoppel argument. It asserts first that it did not change its position with respect to whether the first or second part of Exhibit 1 governed the V2. See Response at 18-19. It next argues that judicial estoppel applies only where the party who is changing its position has secured a judgment based on the prior position, and that Guidance did not secure a judgment in this case under any prior theory. See id. Finally, it asserts, judicial estoppel applies only where a party is “playing fast and loose with the courts” by changing its position, and there is no evidence that Guidance was engaging in any such “fast and loose” behavior. Id. at 19-20. Rather, Guidance calls its reference to Article 4.5 in the Complaint and TRO application a “good faith mistake” and a “factually incorrect proposition.” Id. at 20.

Finally, Guidance opposes the Defendants arguments that Instruction No. 21 was in any way erroneous. It first cites rule 51 as the proper standard for determining whether error in a jury instruction has been preserved and asserts that the Defendants did not properly preserve any of their arguments at trial. See Response at 20-21. Guidance then opposes the Defendants’ arguments on their merits. It opposes Defendants’ argument that the Court erred in asking the jury to decide if the .04 constant-taper file on page 1 of Exhibit 1 was the V2, because the Defendants’ counsel conceded at trial that the Instruction should ask the jury to “determine whether the first part of Exhibit 1 ... refers to the V2,” Response at 21-22, and because the term “V2” is nowhere to be found in the Supply Agreement or Exhibit 1, Response at 22 n. 11. Guidance opposes the Defendants’ objection to asking the jury to interpret the meaning of the word “files” because, it contends, the allegedly meaning of the word files that the Defendants propose — i.e., frozen designs of files — is “incorrect as a matter of basic contract interpretation [and] inconsistent with the statements of counsel for Defendants in open court.” Response at 23-25.

In their reply brief, the Defendants first attack Guidance’s response for failing to address the Defendants’ argument that the Supply Agreement unambiguously always requires engineering drawings, and their argument that the Pretrial Order, much like the Complaint and TRO application, contends that the Defendants violated Article 4.5 of the Supply Agreement by requiring engineering drawings rather than “product specifications.” Dentsply/TDP’s Reply in Support of Their Motion for a New Trial Due to Guidance’s Prejudicial Mid-Trial Switch in Position on Whether the Y2 is a “New Product” and Error in Jury Instruction 21 at 1, 12-13, filed March 15, 2010 (Doc. 521) (“Reply”). The Defendants then reiterate their arguments that the Court should grant a new trial because Guidance changed horses mid-trial, and because the mid-trial change in theories both surprised and prejudiced the Defendants. See Reply at 2-5. They call Guidance’s change in approach a “tactical decision,” and not an error, as Guidance now contends, and argue that Guidance cannot rely on a legal theory that was not disclosed in the Pretrial Order. See Reply at 5-10. They attempt to discredit or distinguish the evidence to which Guidance refers in its motion, and to demonstrate for the Court how and when they preserved their objections for post-trial review. See id. at 8-11.

4. The Court Held an Extensive, Two-Day Hearing.

The hearing on this motion spanned almost two full days, and both sides gave extensive argument and answered numerous questions that the Court posed. Howard Radzely, the Defendants’ attorney, touched on four primary points: (i) the Defendants’ surprise argument; (ii) their judicial estoppel argument; (iii) their argument that, under Delaware contract law, the Supply Agreement unambiguously required Guidance to provide engineering drawings; and (iv) that Instruction 21 was erroneous as a matter of law. He conceded that the Court would likely find, if it went through the entire record, that the Defendants’ position on the meaning and effect of Exhibit 1 has not been consistent over the course of the litigation. See Transcript of Hearing at 317:16-318:4 (taken March 23, 2010), filed May 4, 2010 (Doc. 559)(“Mar. 23 Tr.”)(Court, Radzely). He spent much of his time, however, arguing that the Supply Agreement unambiguously always required Guidance to provide engineering drawings before the Defendants produced the V2 file, no matter in what section of the Agreement or Exhibit 1 the Court finds the V2. See, e.g., Mar. 23 Tr. at 322:22-326:7 (Radzely).

Mr. Kelly conceded that his position changed near the end of the trial from a belief that the contract was unambiguous in his favor to conceding that the contract was ambiguous in some respects. See Mar. 23 Tr. at 357:5-8 (Kelly). He also conceded that Guidance referenced Article 4.5 in the Complaint and in the TRO application, but asserted that those references could not possibly have caused the surprise and prejudice that the Defendants now allege. See Mar. 23 Tr. at 358:1-11 (Kelly). He asserted that this motion for new trial is really a disguised post-trial motion for directed verdict on a basis that has never before been asserted in such a motion. See id. at 357:17-25 (Kelly). Mr. Kelly stated that, in preparing to file its Complaint and TRO application, Guidance’s attorneys were in a hurry to construe the contract as best it could and make whatever plausible allegations that it could based on those provision — “we read [Article 4.5] at the beginning of the case, ... and we thought that might apply, too, and we included it in the Complaint.” Mar. 23 Tr. at 368:21-369:4 (Kelly). Mr. Kelly then summarized that the real issue regarding the V2, from the very beginning, has been simple — does Guidance have to provide engineering drawings to the Defendants before the Defendants are required to supply the V2 file? — it just took Guidance’s counsel a while to figure out that the answer to that question would not be found in Article 4.5. See Mar. 23 Tr. at 370:1-6 (Kelly). Mr. Kelly also conceded he did not remove all reference to Article 4.5 in the Proposed Amended Complaint, but contended that he did not do so because he wanted to change the Complaint as little as possible, and thereby maximize the likelihood that the Court would grant his motion to amend. See Mar. 23 Tr. at 401:5-402:9 (Kelly).

On the second day of the hearing, Mr. Kelly wrapped up his argument with a brief review of the case law, and attacking the Defendants’ argument that the Supply Agreement unambiguously requires Guidance to provide engineering drawings. See Transcript of Hearing at 440:14-449:19 (taken March 24, 2010), filed May 4, 2010 (Doc. 560)(“Mar. 24 Tr.”)(Kelly). Mr. Radzely argued that, until the first week of October, 2009, the Defendants had not taken a position whether the first or second part of Exhibit 1 covered the Y2. See Mar. 24 Tr. at 461:18-24. He raised the new argument that, if Guidance were to make a major change to one of the Guidance Products, it would cease to be a Guidance Product and be, instead, covered by the second part of Exhibit 1. See Mar. 24 Tr. at 462:5-20 (Court, Radzely). He also conceded that there are categories of products that do not require engineering drawings before production, and that those products were Guidance Products which had a frozen design or for which no additional prototype was necessary. See Mar. 24 Tr. at 462:21-466:18 (Court, Radzely). He argued the Supply Agreement was unambiguous in that regard. See Mar. 24 Tr. at 462:21-466:18 (Court, Radzely).

Mr. Radzely also narrowed the dispute in this case regarding Instruction No. 21. He conceded that he had no problem with last sentence of the first paragraph of the Instruction. See Mar. 24 Tr. at 468:9-23 (Court, Radzely). He likewise conceded that he had no problem with the second sentence in the second paragraph of the instruction. See id. at 474:19-475:6 (Court, Radzely). He essentially conceded that the only problem that the Defendants have is with the final sentence of Instruction 21, which states: “If, on the other hand, you find the word ‘file’ refers only to files in production, the Manufacturing and Supply Agreement does not require Guidance to provide Dentsply and/or Tulsa Dental with engineering drawings detailing product specs and tolerances until it makes minor changes to the files in production.” Court’s Final Jury Instructions, Instruction No. 21, at 21. See Mar. 24 Tr. at 475:7-11 (Court, Radzely). The Defendants’ contention in that regard is that there is no way to construe the Supply Agreement to give the word “file” the meaning “file in production.” See Mar. 24 Tr. at 475:7-476:19 (Court, Radzely). Finally, as argument was coming to a close, Mr. Radzely conceded that the Defendants have never argued that the V2 file is subject to the second part of Exhibit 1, and therefore that Guidance could not request prototypes of it before January 29, 2010, as the second part of Exhibit 1 would mandate. See Mar. 24 Tr. at 507:2-22 (Court, Radzely).

RELEVANT LAW REGARDING RULE 51

Rule 51 governs the procedures that a party must follow when requesting particular jury instructions, objecting to certain jury instructions, and preserving any alleged error in the jury instructions for post-trial review. Under rule 51(d)(1)(A), “a party may assign as error in an instruction actually given, if that party properly objected.” Rule 51 also explains how one makes a proper objection. “A party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds for the objection.” Fed.R.Civ.P. 51(c)(1). In post-trial motions and on appeal, therefore, claims of error are waived if there was not a proper objection made at trial. See Royal Maccabees Life Ins. Co. v. Choren, 393 F.3d 1175, 1179 (10th Cir.2005) (“To preserve the objection, a party must proffer the same grounds raised on appeal, with sufficient clarity to render the grounds ‘obvious, plain, or unmistakable.’ ”)(quoting Comcoa, Inc. v. NEC Tels., Inc., 931 F.2d 655, 660 (10th Cir.1991)) (internal citation omitted); Medlock v. Ortho Biotech, 164 F.3d 545, 553 (10th Cir.1999) (“Because the purpose of the objection is to give the court an opportunity to correct any mistake before the jury enters deliberations, an excessively vague or general objection to the propriety of a given instruction is insufficient to preserve the issue for appeal.”) (citation omitted). In determining whether a party made a proper objection, of course, it is important that the Court not rewrite the case’s history.

There are, however, some errors that may be raised post-trial, even though there was no timely, specific objection made about them at trial. See Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1094 (10th Cir.2007) (“[W]hen a party does not object to an instruction before the district court ..., we can review the district court’s decision to administer the instruction only for plain error.”). Rule 51 refers to these as “plain” errors. The rule states: “A court may consider a plain error in the instructions that has not been preserved as required by Rule 51(d)(1) if the error affects substantial rights.” Fed. R.Civ.P. 51(c). The language of the rule, however, is not very helpful in determining what constitutes a plain error.

The Tenth Circuit has said that a court need not consider a jury-instruction error to be “plain error” unless the error was “patently, plainly erroneous and prejudicial.” Williams v. W.D. Sports, N.M., Inc., 497 F.3d at 1094 (quoting Johnson ex rel. Estate of Cano v. Holmes, 455 F.3d 1133, 1141 (10th Cir.2006)). The Tenth Circuit will not reverse a district court for failure to address an unpreserved error in the jury instructions under the plain-error rule except “in an exceptional circumstance, where the error was patently erroneous and prejudicial and where fundamental injustice would otherwise occur.” Abuan v. Level 3 Commc’ns, Inc., 353 F.3d 1158, 1173 (10th Cir.2003). The Rules Advisory Committee commented, in response to the 2003 amendments to rule 51, on the factors that should influence a court’s plain-error analysis. The committee stated:

The court’s duty to give correct jury instructions in a civil action is shaped by at least four factors.

The factor most directly implied by a “plain” error rule is the obviousness of the mistake. The importance of the error is a second major factor. The costs of correcting an error reflect a third factor that is affected by a variety of circumstances. In a case that seems close to the fundamental error line, account also may be taken of the impact a verdict may have on nonparties.

Fed.R.Civ.P. 51 advisory committee’s note (2003).

RELEVANT LAW REGARDING JUDICIAL ESTOPPEL

In a diversity action, the state substantive law that controls the cause of action also controls the doctrine of judicial estoppel. See Okland Oil Co. v. Conoco, Inc., 144 F.3d 1308, 1325 (10th Cir.1998) (discussing a district court’s failure to apply judicial estoppel and stating that, “[i]n a diversity case, we look to state law to determine whether and how to apply these doctrines”); In re Osborn, 24 F.3d 1199, 1207 n. 11 (10th Cir.1994) (“In a federal question case, we rejected the doctrine of judicial estoppel. However, where state law substantively controls, as here, we have applied the law of the state in question.”)(internal citations omitted); Tri-State Generation & Transmission Ass’n, Inc. v. Shoshone River Power, Inc., 874 F.2d 1346, 1363 (10th Cir.1989) (“Inasmuch as the application of judicial estoppel in this diversity action goes to the adequacy of [a plaintiffs] legal remedy, we look to the appropriate state law to determine whether judicial estoppel is recognized.”); Ellis v. Ark. La. Gas Co., 609 F.2d 436, 440-41 (10th Cir.1979) (holding, in response to an assertion of judicial estoppel, that, “[a]pplying the governing principles of Oklahoma law, we hold Arkla’s claim is not barred.”); Bayview Loan Serv. v. Boland, No. 08-CV-566, 2009 WL 3234270, at *7 (D.Colo. Sept. 30, 2009). But see Sain v. EOG Res., Inc., 204 Fed.Appx. 739, 741 n. 2 (10th Cir.2006) (assuming without deciding that federal law governed application of judicial estoppel to a jurisdictional issue, because neither party raised the choice-of-law issue and because “the parties’ and the district court’s assumption that federal law governed the judicial estoppel issue was reasonable.”). The claim at issue in this opinion is Guidance’s claim for breach of contract, which the parties and Court have agreed that Delaware law governs. See Guidance Endodontics, LLC v. Dentsply Int'l, Inc., 708 F.Supp.2d 1209, 1222-24 (D.N.M.2010) (Browning, J.); Guidance Endodontics, LLC v. Dentsply Int’l, Inc., No. CIV 08-1101 JB/RLP, 2009 WL 3672452, at **5-6 (D.N.M. Oct. 2, 2009) (Browning, J.). The Court thus discusses the law of judicial estoppel as it exists under Delaware law.

Judicial estoppel under Delaware law is a equitable doctrine that is primarily concerned with protecting the integrity of the judicial process. See Banther v. State, 977 A.2d 870, 884-85 (Del.2009) (“The primary concern of the doctrine of judicial estoppel is to protect the integrity of the judicial process.”); Motorola Inc. v. Amkor Tech., Inc., 958 A.2d 852, 859 (Del.2008) (“The doctrine is meant to protect the integrity of the judicial proceedings.”). The doctrine “prevents a litigant from advancing an argument that contradicts a position previously taken that the court was persuaded to accept as the basis for its ruling.” Motorola Inc. v. Amkor Tech., Inc., 958 A.2d at 859; Lynch v. Thompson, No. C.M. 2488-K, 2009 WL 1900464, at *4 (Del.Ch. June 29, 2009) (“Judicial estoppel is an equitable doctrine designed to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment.”)(quoting Julian v. E. States Constr. Serv., Inc., No. CIV 1892-VCP, 2009 WL 1211642, at *6 (Del.Ch. May 5, 2009)). The latter requirement is important — “parties raise many issues throughout a lengthy litigation such as this, and only those arguments that persuade the court can form the basis for judicial estoppel.” Motorola Inc. v. Amkor Tech., Inc., 958 A.2d at 859.

Notwithstanding the well-delineated requirements, however, it is always in the court’s discretion whether to apply the judicial-estoppel doctrine in a given case. See id. (“Judicial estoppel ‘is an equitable doctrine invoked by a court at its discretion.’ ”)(quoting New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)). Some of the factors that Delaware courts use to inform their decisions whether to apply the doctrine of judicial estoppel in a particular case are: (i) whether the party’s later position is “clearly inconsistent” with its earlier position; (ii) whether the party succeeded in persuading the court to accept the party’s earlier position, so that accepting the inconsistent position in a later proceeding would make it appear that the court had been misled; (iii) whether the party seeking to assert the inconsistent position would derive an unfair advantage from the new position; and (iv) whether the party asserting judicial estoppel would suffer an unfair detriment if the opposing party is not estopped. Julian v. E. States Constr. Serv., Inc., 2009 WL 1211642, at *6.

RELEVANT DELAWARE LAW REGARDING CONTRACT CONSTRUCTION

Under Delaware law, when construing a contract, a court is to determine the meaning of the contract solely from its face. See Paul v. Deloitte & Touche, LLP, 974 A.2d 140, 145 (Del.2009) (“In analyzing disputes over the language of a contract, we give priority to the intention of the parties [and] start by looking to the four corners of the contract to conclude whether the intent of the parties can be determined from its express language.”); Del. Bay Surgical Servs., P.C. v. Swier, 900 A.2d 646, 650 (Del.2006) (“[W]e review de novo a question of contract interpretation as a question of law.”); OSI Sys., Inc. v. Instrumentarium Corp., 892 A.2d 1086, 1090 (Del.Ch.2006) (“[T]he proper interpretation of language in a contract, while analytically a question of fact, is treated as a question of law both in the trial court and on appeal.”)(internal quotes omitted)(eiting Pellaton v. Bank of N. Y., 592 A.2d 473, 478 (Del.1991)); Del. P.J.I. Civ. § 19.15 Comment (2000). “[A] court must construe the agreement as a whole, giving effect to all provisions therein. Moreover, the meaning which arises from a particular portion of an agreement cannot control the meaning of the entire agreement where such inference runs counter to the agreement’s overall scheme or plan.” E.I. du Pont de Nemours & Co. v. Shell Oil Co., 498 A.2d at 1113 (citations omitted). In analyzing the parties’ apparent intent, Delaware courts use an objective standard: “The true test is not what the parties to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought it meant.” Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1196 (Del.1992).

When the parties’ intent, as expressed in the contract language, is clear and unambiguous, a court is not to consider any extrinsic evidence in determining the parties’ intent; when there is no ambiguity, such extrinsic evidence could only be used either to create ambiguity or to reinforce an already clearly correct interpretation. See Halliburton Co. v. Highlands Ins. Grp., Inc., 811 A.2d 277, 280 n. 9 (Del.2002) (quoting Eagle Indus., Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228, 1232 (Del.1997)). On the other hand, where the contract language is ambiguous — i.e., subject to two or more reasonable interpretations, see Eagle Industries, Inc. v. DeVilbiss Health Care, Inc., 702 A.2d at 1232; Northwestern National Insurance Co. v. Esmark, Inc., 672 A.2d 41, 43 (Del.1996); Addy v. Piedmonte, No. Civ. A. 3571-VCP, 2009 WL 707641, at *8 (Del.Ch. Mar. 18, 2009) — the court may consider things outside the text of the contract to determine its meaning, see Pellaton v. Bank of N.Y., 592 A.2d at 478 (“When there is uncertainty in the meaning and application of the terms of the contract, ... the trial eourt[ ] will consider testimony pertaining to antecedent agreements, communications and other factors which bear on the proper interpretation of the contract.”). Ultimately, whether a contract is ambiguous is a question of law that the court must decide. See HIFN, Inc. v. Intel Corp., No. Civ. A. 1835-VCS, 2007 WL 1309376, at *9 (Del.Ch. May 2, 2007) (“A determination of whether a contract is ambiguous is a question for the court to resolve as a matter of law.”). One must be wary, though, because “[a] contract is not rendered ambiguous simply because the parties do not agree upon its proper construction.” Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d at 1196. In the face of an ambiguity, however, the Court is permitted to consider any extrinsic evidence that might shed light on the meaning of the ambiguous provisions. See Eagle Indus., Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228 (De.Supr.1997) (stating that, when there is an ambiguity, “the interpreting court must look beyond the language of the contract to ascertain the parties’ intentions.”); Nw. Nat’l Ins. Co. v. Esmark, Inc., 672 A.2d at 43 (“Courts consider extrinsic evidence to interpret the agreement only if there is an ambiguity in the contract.”); Pellaton v. Bank of N.Y., 592 A.2d at 478.

To state a breach of contract claim under Delaware law, one must establish three elements. “[FJirst, the existence of the contract, whether express or implied; second, the breach of an obligation imposed by that contract; and third, the resultant damage to the plaintiff.” VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d 606, 612 (Del.2003). A plaintiff cannot bring a breach-of-contract claim seeking only nominal damages. The Supreme Court of Delaware appears to require a breach-of-contract plaintiff to show “resultant damage to the plaintiff’ to survive a motion to dismiss. VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d at 612 (explaining that, to survive a motion to dismiss on a breach of contract claim, the plaintiff must demonstrate “the existence of the contract, whether express or implied; ... the breach of an obligation imposed by that contract; and ... the resultant damage to the plaintiff.”). On the other hand, it appears that, when there is evidence of damages, but those damages cannot be calculated with the necessary certainty, the law of Delaware allows the court to award nominal damages. See Ivize of Milwaukee v. Compex Litig., Support, LLC, Nos. 3158-VCL, 3406-VCL, 2009 WL 1111179, at *11 (Del.Ch. Apr. 27, 2009) (holding nominal damages could be awarded when existence of damages was clear but quantity could not be proved with the required certainty); LaPoint v. AmerisourceBergen Corp., No. Civ. A. 327-CC, 2007 WL 2565709, at *9 (Del.Ch. Sept. 4, 2007) (“To be entitled to compensatory damages, plaintiffs must show that the injuries suffered are not speculative or uncertain, and that the Court may make a reasonable estimate as to an amount of damages.”).

ANALYSIS

The Defendants ask the Court to grant them a new trial on two general grounds. First, the Defendants assert that Guidance changed its litigation theory mid-way through trial, and that mid-trial switch surprised and prejudiced them. Second, they argue that Jury Instruction No. 21 was erroneous and that the error was harmful. Guidance disagrees with both propositions, arguing that it has been consistent in its arguments