Full opinion text
OPINION ON MOTION FOR REHEARING BROOKSHIRE, Justice. On Motion for Rehearing the Court withdraws its opinion filed June 30, 1994, and its concurring and dissenting opinion filed August 4, 1994, and this opinion is substituted therefor. Appeal from a jury verdict adverse to Minnesota Mining & Manufacturing Company (“3M”). The jury found that 3M had breached expressed warranties and implied warranties. The litigation arose pursuant to 3M’s sale of certain materials, emulsion, and backcoat sauce used to make and produce three-dimensional photographs and photographic prints. Skeletal Background Facts and Contentions The appellees, plaintiffs below, alleged that 3M’s materials and products were incompatible and unsuitable with a new type of photographic emulsion that 3M had sold to LenTec Corporation in December of 1989. Appellees contended that the new emulsion was not fit and not suitable to use with 3M’s other products. The incompatibility of the new emulsion was related to a certain backcoat sauce that 3M had sold to Nishika Ltd. (“Nishika”) and LenTec. Nishika and LenTec bought mainly two products from 3M, being a light sensitive photographic emulsion and backcoat sauce. The backcoat sauce was developed by 3M to use with the emulsion. The alleged destructive incompatibility caused the prints that Nishika had made with 3M’s materials to fade badly and quickly. The claim in the district court was that the faded prints and photos caused the distributors, selling the three-dimensional cameras marketed by American 3D Corporation (“American 3D”), to lose confidence. This loss .of confidence destroyed the plaintiffs’ multi-level direct-sale-camera-distribution business. This loss caused harm and damages to four companies, decimating their business enterprises. After a lengthy juried proceeding lasting about eight weeks, the jury found consistently in favor of the plaintiffs below on the warranty theories. The trial judge rendered judgment against 3M for $29,873,599 including pre-judgment interest and other relief. The plaintiffs below sought to recover damages including lost profits. The entities claiming lost profits were American 3D, Quantronics Manufacturing (H.K.) Ltd. (“Quantronics”), the manufacturer of the three-dimensional cameras, and its assignee, Nishika Manufacturing (H.K.) Ltd. (“Nishika H.K.”), LenTec Corporation and Nishika Ltd. resulting from lost business and lost and reduced camera sales. Quantronics assigned its rights and actions to Nishika (H.K.). The jury found that 3M had breached expressed warranties and implied warranties, both of which warranties concerned the suitability, fitness, and compatibility of the new emulsion that 3M had sold. The plaintiffs below have been referred to collectively by the parties as the Nishika Plaintiffs. These four plaintiffs (the named appellees) were a group of companies linked by common ownership. In about the mid-1980s, one James Bainbridge had successfully owned and conducted a variety of businesses since about 1978. Bainbridge became interested and, indeed, fascinated with three-dimensional photography. His deep interest was triggered by an article that he had read in a magazine known as “Business Week”. The article in “Business Week” was written about Nimslo Corporation. Nimslo, at that time, was the manufacturer of three-dimensional cameras. Later, Bainbridge and his partner, one Daniel Fingarette, established a company and by 1986 they had entered into a licensing agreement with Nimslo to allow and permit their own company to market 3-D cameras and also to market 3-D photo finishing. After the passage of time Bainbridge and Fingarette through their company acquired the world-wide patent rights to the 3-D photographic system from Nimslo. The Bainbridge .enterprise and business expanded. Various closely aligned companies came into existence. They assumed different but interrelated roles in the manufacturing, marketing, and sales of the 3-D photography system. These closely aligned companies were based on common ownership between and by Bainbridge and Fingarette. Jointly these companies had a common purpose in fostering the development and marketing of the 3-D photographic system. Quantronics, and later its successor-assignee, Nishika (H.K.) actually made, manufactured, and produced the cameras that were capable of taking and did take 3-D photographs. Later in about the fall of 1988, American 3D was established to promote the sales of these special cameras to the public through a mul-ti-level marketing system that included direct sales through certain, numerous individual distributors. This distribution system was described as being similar to the system used by Avon and the Fuller Brush Company. LenTec designed and engineered the printers and it produced a certáin plastic lenticu-lar material that was used in the 3-D photographs. Nishiká printed out the 3-D photographs. The record reflects that between 1986 and 1989 this family of four companies collectively made capital investments of approximately $40,000,000 in the 3-D business. Also the four companies working together substantially improved the older Nimslo 3-D photographic system through the expenditure of millions of dollars for advanced research in order to make the system more attractive and also more user-friendly. Likewise, the family of companies through research and investment developed to a higher degree the printers that were faster and produced better pictures and photographs. The companies expanded to a total personnel force in excess of 250 employees. Forty full-time engineers were hired. Many technicians were employed to improve and to maintain the high quality of the 3-D photographic system. By the end of 1989, the family of four companies had implemented a highly successful marketing strategy and had on board sixty thousand distributors. At this point in time, the 3-D camera sales and the business attendant thereto were booming. American 3D had sold about 130,000 cameras, including 14,566 cameras sold within the month of December of 1989 alone. The record clearly shows that 3M’s products were absolutely crucial to the ongoing of the 3-D business. Actually 3M had originally supplied photographic emulsions to Nim-slo. In the very early part of 1988, pursuant to and subsequent to his companies’ acquisition of certain world-wide rights from Nim-slo, Bainbridge and others met with Mr. Roger Lorenzini, a 3M vice-president. This group also met with other important 3M officials. At this meeting, Bainbridge told and informed the 3M officials in an unequivocal manner that the Nishika Plaintiffs were investing millions of dollars and were also in the process of and committed to investing tens of millions of dollars more to bring their 3-D cameras and 3-D photographs to market. Bainbridge gave a full explanation to the 3M officials as to how the entire program would be planned, executed, and rolled out. Bainbridge explained about Nishika’s functions. Then in 1988 and also 1989, Lorenzini engaged in several discussions with Tom Steimer. Tom Steimer was a vice-president with LenTec. Lorenzini then had detailed, personal knowledge of the plans of the four companies and their officials to use and to build a multi-level marketing system to sell the unique, attractive 3-D cameras. Loren-zini was very enthusiastic upon hearing about the companies’ plans; he had been tracking 3M’s sales to Nishika. He was delighted to project sales of between 1.2 to 1.3 million dollars. 3M received more than one million dollars from sales to Nishika and LenTec. LenTec and Nishika had purchased two critical materials or products from 3M: a light-sensitive photographic emulsion, and also a backeoat sauce developed by 3M for use with the emulsion. The backeoat sauce and the emulsion supplied and sold by 3M were always intended by 3M to work together and 3M fully understood that it was essential that these print materials be suitable for the proper processing of 3-D photographs. Bainbridge had carefully and specifically told and advised 3M and its officials that if he did not have proper print materials, then he would not have a 3-D business. In mid-1989, 3M announced an alleged and claimed breakthrough to the Nishika Plaintiffs. 3M had, it professed, developed a “new”, “improved” emulsion that would work very well in the Nishika Plaintiffs’ system. The four companies were joined in a common purpose, being the development, improvement, manufacturing, marketing, retailing, and sale of the entire 3-D photographic system. But 3M did not share or communicate and has never shared or communicated with the Nishika Plaintiffs the chemical composition of the “new”, “improved” emulsion or the chemical make-up of 3M’s products. Even so, 3M sold the “new” product to certain Nishika Plaintiffs. 3M expressly characterized the new product as a “new”, “improved” emulsion. But 3M failed to inform Nishika and LenTec that the “new” and “improved” emulsion was experimental. Also 3M did not inform Nishika and LenTec that the “new” and “improved” emulsion had not been tested for compatibility with 3M’s own backeoat sauce. But as the record reflects 3M’s “new”, “improved” emulsion, which was supposed to work well and efficiently with 3M’s backeoat sauce, was actually indisputably incompatible with its backeoat sauce and thus caused the photographs to fade within a very short time of their delivery. At the very time these crucial problems arose, Lorenzini admitted, according to the plaintiffs’ evidence, that the fading problem was 3M’s problem and Lor-enzini said that 3M would stand behind its products and solve the problem. The fading of the photographs took place at an extremely crucial time and at a disastrous time for the Nishika Plaintiffs. The fading photographs were caused by the incompatibility of the emulsion and the back-coat sauce. These crucial times occurred in December of 1989 when sales had been booming. For example, about 15,000 cameras had been sold on a monthly basis and the number of distributors for these 3-D cameras had risen to 60,000, being an all-time high. The problem of fading was exasperating and enhanced because the Nishika Plaintiffs simply did not know what was causing the fading of the photographs. Thus, they reprinted the faded pictures and then sent them back to the customers. But because of the fact that the pictures were being printed with the same “new”, “improved” emulsion and backcoat sauce, the reprinted photos also faded. The record contains evidence that experts, former distributors, and others testified that the faded photographs destroyed the credibility and business of the Nishika Plaintiffs’ front-line distributors and caused the collapse of the entire multi-marketing system. Sales plummeted disastrously by about 600 percent during January of 1990. An example was that in December of 1989, 14,566 3-D cameras were sold. In the month immediately following, the sale of the cameras dropped to the number of about 2,000. This disastrous period occurred right after the introduction of 3M’s defective print materials, the emulsion and the backcoat sauce. There is evidence of probative value that in the companies’ history until January, 1990, the sales had never dipped more than 10 percent from any prior month. Despite vigorous efforts to save the business, the Nishi-ka Plaintiffs’ 3-D photographic business was totally destroyed. Admittedly the above narration is the version of the evidence advocated by the Nishika Plaintiffs. But this evidence ivas before the jury and the jury acted as the fact finders in the litigation. The jury was empowered to decide where the preponderance of the evidence lay. A witness who qualified as an expert was a certified public accountant. The witness, Herb Warner, was a partner in an accounting firm known as Peat, Marwick. This certified public accountant testified that the Nishika Plaintiffs could have reaped soundly expected profits in the reasonable amount in excess of $97,000,000 by the end of 1994 but for 3M’s breaches of warranties. This expert based his expert opinion, inter alia, upon and after examination of the Nishika Plaintiffs’ financial statements and financial data, the actual records of the sales of the 3-D cameras that had occurred, as well as the upper trend in the volume of sales of the cameras and the expenses attributable to those sales. Warner’s opinions and evaluations were reinforced by one William Randall. Randall had earned a MBA degree with special expertise in multi-level marketing. Randall concluded that American 3D would have continued as a successful multi-level marketing company but for the faded photographs. These 3-D cameras were unique and their manufacturer gave meaningful support and help to the distributors. Randall, a highly qualified expert, projected sales of cameras for the years of 1990-1994. Randall gave expert evidence about the projected sales of the 3-D cameras. His projections were consistent with Warner’s. Bainbridge, although an interested witness, corroborated Warner and Randall. He gave testimony as to what the businesses would have earned but for the fading of the photos. It is Hornbook law in Texas that the jury is the exclusive judge of the facts proven, the credibility of the witnesses, and the weight to be given their testimony. The Texas jury has special prerogatives and exceptional powers in evaluating and weighing the testimony of experts and the jury can believe and find that a preponderance of the evidence lies in the testimony of interested witnesses and experts. The Texas jury is so empowered by the State Constitution and a legion of Supreme Court precedents. It was a long trial. After hearing all of the evidence as well as the argument of counsel, the jury, in summary, found that: A) 3M had breached its express warranty that the new emulsion would be better than the old emulsion for the making of 3-D photographs; B) that 3M breached its implied warranty of merchantability; C) 3M breached its implied warranty of fitness for a particular purpose or use; D j 3M’s various breaches of warranty were a “direct cause of the harm” suffered by Nishika, American 3D, Nishika Manufacturing (H.K.) Ltd. and LenTec; E) Nishika and LenTec failed to exercise reasonable care in evaluating and using the new emulsion; F) that Nishika’s and LenTec’s failure was also a direct cause of harm suffered by the Nishika Plaintiffs; G) that 3D was 51 percent at fault and that Nishika and LenTec were 49 percent at fault; H) and that Nishi-ka Plaintiffs’ damages were $50,000,000. Parts of the Charge to the Jury The judge charged the jury: “You are the sole judges of the credibility of the witnesses and the weight to be given then’ testimo-ny_” The judge also set out certain definitions for “Preponderance of the Evidence” and “Direct Cause”: 1. By the term “preponderance of the evidence” as used in this Charge, is meant the greater weight and degree of credible evidence before you. 2. By the term “direct cause” as used in this Charge, is meant a cause which had a substantial part in bringing about the harm, either immediately or through happenings which follow one after another, incurred by any person or entity who may reasonably be expected to use, consume or be affected by the 3M photographic materials. There may be more than one direct cause of harm. When the effects of fault of each of two or more persons actively work at substantially the same time to cause the harm, each may be a direct cause of the harm. 3. However, a cause is not a direct cause when there is a superseding cause. For a cause to be a superseding cause it: A. Must come between the original cause and the injury in point of time. B. Must not have been brought about by the original fault. C. Must turn aside the natural sequence of events and produce a result which would not otherwise have followed from the original fault. D. Must not have been foreseeable by the original wrongdoer. 4. By the term “Nishika/LenTee” as used in this Charge, is meant Nishika Ltd., LenTec Corp., American 3D Ltd., and Nishika Manufacturing (H.K.) Ltd. 5. You are the sole judges of whether a witness is to be believed and of the weight to be given to the testimony of each. There are no hard and fast rules to guide you in this respect. In determining believability and weight you should take into consideration as to the witness the following: A. Their interest or lack of interest in the outcome of the case. B. Their relationship to the parties. C. Their ability and opportunity to know, remember, and relate the facts. D. Their manner and appearance. E. Their age and experience. F. Them frankness and sincerity, or lack thereof. G. The reasonableness or unreasonableness of them testimony in the light of all the other evidence in the case. H. Any impeachment of them testimony. I. Any other factors that bear on believability and weight. You should in the last analysis rely upon your own experience, good judgment and common sense. 6. Testimony has been presented to you by way of deposition. The testimony of a witness who for some reason cannot be present to testify in person may be presented in this form. Such testimony is under oath and is entitled to neither more nor less consideration by you because it was so presented. You are to judge its believability and weight in the same manner as you would had the witness been present in court except, of course, you should disregard the manner or appearance of the person reading the deposition in court in evaluating the evidence. 7. A witness who has special training, education or experience in a particular science, profession or calling is allowed to express an opinion. In determining the believability and the weight to be given such opinion evidence, you may consider, among other things: A. The education, training, experience, knowledge and ability of the witness. B. The reasons given for the witness’ opinion. C. The sources of the witness’ information. D. Factors already given you for evaluating the testimony of a witness. Such opinion evidence is entitled to neither more nor less consideration by you than the other fact evidence presented. 8. In deciding the believability and weight to be given the testimony of a witness, you may consider evidence of a statement by or conduct of the witness on some prior occasion which is inconsistent with the witness’ present testimony. This evidence may be considered by you only for the purpose of testing the believability and weight of the witness’ testimony and for no other purpose. If, however, the statement was given under oath or the witness is a party or an agent of a party in the case, the evidence of the prior inconsistent statement or the conduct of a party or an agent of a party may be considered as evidence bearing on the issues in this case as well as for testing believability and weight. No objections or exceptions were made against the above parts of the charge. The critical elements of the charge follow: QUESTION NO. 1 Do you find that 3M expressly warranted that the new photographic emulsion would be suitable for making three-dimensional photographs or that the new photographic emulsion would be better than the old emulsion for making three-dimensional photographs? Answer “Yes” or “No.” ANSWER: YES _X_ NO _ (Instructions Omitted.) QUESTION NO. 2 Did 3M breach the express warranty, if any, as to the characteristics of the new photographic emulsion? Answer “Yes” or “No.” ANSWER: YES JX_ NO _ QUESTION NO. 3 Was 3M’s breach, if any, a direct cause of the harm, if any, suffered by the plaintiffs? Answer ‘Tes” or “No” as to each plaintiff. ANSWER: A. Nishika Yes B. LenTec Yes C. American 3D Yes D. Nishika Manufacturing (H.K.) Yes E. Ron Harris Yes F. Samantha York Yes G. Marleone Gunderson Yes QUESTION NO. 4 Did 3M impliedly warrant the merchantability of the new photographic emulsion and Generation I backcoat? Answer “Yes” or “No.” ANSWER: YES _X_ NO _ (Instructions Omitted.) QUESTION NO. 5 Did 3M breach the implied warranty, if any, that the new photographic emulsion and Generation I backcoat were merchantable? Answer “Yes” or “No.” ANSWER: YES _X_ NO _ QUESTION NO. 6 Was 3M’s breach of its implied warranty, if any, of merchantability a direct cause of the harm, if any, suffered by the plaintiffs? Answer “Yes” or “No” as to each plaintiff. ANSWER: A. Nishika Yes B. LenTec Yes . C. American 3D Yes D. Nishika Manufacturing (H.K.) Yes E. Ron Harris Yes F. Samantha York Yes G. Marleone Gunderson Yes QUESTION NO. 7 Did 3M impliedly warrant that the new photographic emulsion and Generation I backcoat would be fit for a particular purpose? Answer “Yes” or “No.” ANSWER: YES X NO . (Instructions Omitted.) QUESTION NO. 8 Did 3M breach an implied warranty, if any, made to Nishika/LenTec that the new photographic emulsion and Generation I backcoat would be fit for a particular purpose? ANSWER: YES X NO QUESTION NO. 9 Was 3M’s breach of an implied warranty, if any, to be fit for a particular purpose a direct cause of the harm, if any, suffered by the plaintiffs? Answer “Yes” or “No” as to each plaintiff. ANSWER: A. Nishika Yes B. LenTec Yes C. American 3D Yes D. Nishika Manufacturing (H.K.) Yes E. Ron Harris Yes F. Samantha York Yes G. Marleone Gunderson Yes QUESTION NO. 10 Did Nishika/LenTec fail to exercise reasonable care in evaluating and using the new photographic emulsion together with the Generation I backcoat? ANSWER: YES _jX_ NO _ (Instructions Omitted.) QUESTION NO. 11 Was Nishika/LenTec’s failure, if any, to exercise reasonable care in using the new photographic emulsion together with the Generation I backcoat a direct cause of its harm, if any, suffered by the plaintiffs? ANSWER: YES JL_ NO_ QUESTION NO. 12 Taking the combined fault which contributed to Nishika/LenTec’s damages as 100%, what percentage thereof do you attribute to: A. 3M 51% B. Nishika/LenTec 49% TOTAL = 100% (Instructions Omitted.) QUESTION NO. 13 What sum of money, if any, would fairly and reasonably compensate the plaintiffs for damages, if any, suffered as a direct and natural result of 3M’s breach of warranty, if any? Answer in dollars and cents for each plaintiff, if any, and without any reduction for any percentage of fault or causation you might attribute to such plaintiff. ANSWER: Nishika/LenTec $50,000,000 Ron Harris $_0 Samantha York $_0 Marleone Gunderson $_0 (Instructions Omitted.) QUESTION NO. 14 Was the multilevel marketing system used by Nishika/LenTec illegal under Minnesota law? Answer “Yes” or “No.” ANSWER: YES _ NO X (Instructions Omitted.) 3M’s Objection to the Court’s Charge The 3M Corporation objected to the court’s charge orally with permission. The objections are summarized, using the verb tenses. 3M objected and excepted to question one and the instructions with it, stating question one, as submitted, is a source of confusion to the jury because the question is worded in the disjunctive. 3M also objected that question one inquiries about warranties about which the plaintiffs really have not shown a complaint. These objections and exceptions were to the effect that the plaintiffs complained that the new emulsion that was sold was incompatible with the material that had already been purchased and received by either LenTec or by Nishika. Then 3M repeated that question one is a source of confusion and is not supported by the evidence in the case. Additionally, there was an objection to the instruction with question one because it was said that the instruction included only a portion of the “description of how express warranties are made” under the Minnesota statute which description failed to include the fact (or instruction) that a sample or a model, which is made a part of the basis of the bargain, creates an expressed warranty that the whole of the goods shall conform to the sample or the model. Thus the instruction (it was said) puts undue emphasis and acts as a comment to the jury that the warranty of the defendant was other than the warranty that was actually made to the effect that the goods will conform to the sample. 3M also objected and insisted that having given to the plaintiffs a sample and allowed the plaintiffs to examine, test and satisfy themselves that the goods or sample were satisfactory for plaintiffs’ purposes; then there exists no other warranty or breach of warranty about which the plaintiffs can complain. Then 3M said, as a matter of law, the issue should not be submitted to the jury. We determine that there ivas no comment. Certainly Tex.R.Civ.P. 277 was not violated. The trial judge said nothing about the weight of the evidence. He did not advise the jury of the effect of its answers. The parties here had ample time and opportunity to present their objections to the court’s charge outside the presence of the jury. Clearly all objections not so presented shall be waived. Tex.R.Civ.P. 272. The trial court may give such definitions and instructions as may be proper. Tex.R.Civ.P. 273. Significantly, no objection to one part of the charge may be adopted or applied to any other part of the charge by reference only. In all jury cases, the court shall, whenever feasible submit the cause upon broad form questions. The court shall submit such instructions, definitions as shall be proper to enable the jury to render a verdict. Rules 273, 277. We determine that the court was permitted under Rule 277 to submit a question disjunctively and in a broad form. A very well recognized corollary is that the court’s charge shall not be objectionable on the grounds that it may incidentally constitute a comment on the weight of the evidence or advise the jury of the effect of their answers when it is properly a part of an instruction or a definition. Rule 277. Neither comment nor the effect of the jury’s answers existed. We conclude that the objection that question one is a source of confusion is not sustainable and the objection that the question is worded in the disjunctive is not sustainable. Rule 277. We conclude that question number one was supported by the evidence. The next objection of 3M to question number one according to the record, seems to be adverse and unfavorable to the position of 3M. We opine that this next objection thwarts and diminishes 3M’s defensive position. The objection states: Additionally, within the instruction to include only a portion of the description of how expressed warranties are made from the Minnesota Statute, 336.2-313 without including the fact that a sample or a model, which is made part of the basis of the bargain, creates an expressed warranty that the whole of the goods shall conform to the sample or model puts undue emphasis and acts as a comment to the jury that the warranty of the plaintiffs or warranty, rather, of the defendant was other than the warranty that was actually made, and that is that the goods will conform to the sample. And on that basis the defendant also objects that having given the plaintiff a sample and allowed the plaintiff to — to examine, test and satisfy itself that the goods were — were satisfactory for its purposes, there is no other warranty or breach of warranty about which the plaintiff can complain, and as a matter of law the issue should not be submitted to the jury. This objection on the part of 3M contains more than one element or complaint or objection; it is multifarious. The court’s charge included this instruction: 11. With certain questions contained in this Charge, you will be concerned with the relationship that exists between a business entity and its officers or other agents. Some of the Plaintiffs, Nishika Ltd., LenTee Corporation, American 3D Ltd., and Ni-shika Manufacturing (H.K.), and the Defendant, Minnesota Mining and Manufacturing Co. (3M), are business entities that can acquire knowledge and can act only through its officers or agents. The law therefore holds a business entity responsible for all acts of its directors, officers, employees, or other agents, which were done within the course or scope of their authority or employment. The term “course or scope of authority” means any act or acts done in the furtherance of the entity’s business by an officer or agent. There are no objections to this instruction and there is also no objection to the charge on that basis. Rule 277 affirmatively authorizes and mandates broad-form submission of jury questions. See Keetch v. Kroger Co., 845 S.W.2d 262 (Tex.1992). We are, of course, to evaluate the sufficiency of the evidence in view of the actual questions and instructions contained and submitted in the court’s charge. See Larson v. Cook Consultants, Inc., 690 S.W.2d 567 (Tex.1985). But there were no samples or models that were even referred to in the instructions to question number one. It is very important to note that the defendant did not object to the definition of direct cause and did not object to direct cause as used in questions number three, six, and nine. One defendant lawyer did not want the charge to be changed at all after the Friday conference which was supposed to close the charge and did actually close the charge. 3M did not object to the damage issue at first. Later on, one of the attorneys, Mr. McEvily, wanted the Friday charge but later he objected to the new submission as of Monday morning on December 21, 1992. The objections to question thirteen were that the court was advising the jury of the effect of its answers. That objection had nothing to do with the apportionment of the damages between the plaintiffs. We find that objection is not tenable. We note that the trial judge was merely following the Texas Pattern Jury Charges. There was another objection to the order of the last three issues as presented to the jury and this would cause the jury to leave unanswered certain questions. There were many irrelevant, abstruse objections. We conclude that 3M’s objections to question thirteen—the money damage issue—are not sustainable. Without objection the court’s charge on causation (which was correct under Minnesota law and standards for determining who may recover for breach of warranty) definitely involved the term “direct cause”. The court charged the jury: By the term “direct cause” as used in this Charge, is meant a cause which had a substantial part in bringing about the harm, either immediately or through happenings which follow one after another, incurred by any person or entity who may reasonably be expected to use, consume or be affected by the 3M photographic materials. It must be stressed that the jury answered questions number three, six, and nine wherein the jury affirmatively found that 3M’s warranty breaches were a “direct cause” of the “harm” suffered and sustained by each one of the Nishika Plaintiffs. Therefore, pursuant to the trial court’s definition of “direct cause”, the jury appropriately and specially found that each one of the Nishika Plaintiffs could reasonably be expected to use, consume, or be affected by 3M’s defective materials. 3M’s objections to question thirteen are not sustainable. Furthermore, question thirteen was properly presented and properly worded under the broad-form submission that is mandated by the civil rules. Rule 277. See Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992) and the concurring opinion, holding, in general, that the broad-form question involves inclusion of multiple elements within a single question, usually by adding accompanying instructions. The majority opinion in Keetch is supportive of the doctrine. The Texas appellate courts, under established rules of appellate review, pass on the sufficiency of the evidence in light of the questions actually asked and the instructions actually submitted in the court’s charge. See Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex.1985). Reasoning from those decisions and in view of the fact that the jury found, without any objection, that each of the Nishika Plaintiffs might reasonably have been expected to be affected by 3M goods and that each of the Nishika Plaintiffs suffered direct harm as a result of 3M’s breaches; then all of Nishika Plaintiffs are entitled to recover under Minnesota law. Minn.Stat. § 336.2-318 (Supp.1993). Again, defendants’ objections to question thirteen are untenable. As we read the language of Minn. Stat. § 336.2-313, the part of that statute relied upon by 3M as the grounds of its objection to question one is misconstrued. We determine that the appropriate statute relied upon by 3M in its objection to question number one reads thus: [Wjhen the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regal’d to defects which an examination ought in the circumstances to have revealed to him. (Emphasis added.) But this clause is in section 2-316. 3M was invoking the “sample or model” defense. Again, we opine the immediately above recited statutory provision applies to implied warranties but jury question number one inquired strictly about express warranties. We think that 3M misconstrued section 2-313(c) reading: Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model. We think that that is an affirmative ground or basis to create an express warranty as against the seller (3M) and in favor of the buyer. We think 3M has tried to turn this affirmative ground of creating an express warranty in favor of plaintiffs into a complete defense in favor of defendants. 3M, in our opinion, is in error. 3M was trying to apply certain language, above quoted that applies only to implied warranties as creating an additional, complete defense as to express warranties — this objection was skewed. We cannot agree with 3M. We rule that 3M misconstrued section 2-313 as well as 2-316(3)(b). Section 2-313 is not a ground of defense for 3M. Section 2-313 defines how express warranties are “created” in favor of buyers; it gives no help or comfort to seller. We think 3M not only misconstrued but misapplied the relevant section of 2-316 because that relevant sub-section 2 — 316(3)(b) applies to implied warranties. 3M attempts to apply this sub-section (3)(b) to express warranties. Thus the objections are not sound. Then 3M requested Questions A and B. They are: QUESTION NO. A Do you find that 3M expressly warranted that the new photographic emulsion would be compatible with the backcoat for making three-dimensional photographs? QUESTION NO. B Do you find that 3M expressly warranted that the new photographic emulsion would be suitable for making three-dimensional photographs. Both of these were refused. Significantly, no point of error is presented germane to Questions A and B. But neither defendant’s Questions A nor B inquired about samples or models or if samples or models are fully examined by a buyer before entering into a contract or if the buyer has refused to do so; then there is no implied warranty with regard to the defects which an examination ought in the circumstances to have revealed to the buyer. Defendant’s Questions A and B simply do not touch samples or models top, side, nor bottom. Obviously 3M repeatedly insists by the wording of its objections that section 2-316(3)(b) mandates and creates a defense and exclusion to express warranties; it does not; it applies solely to implied warranties. This, we opine, was confusing to the trial court and we think such objection was not sound. And we think these objections coupled with the defendant’s requested Questions A and B were confusing and violated Tex.R.Civ.P. 274 concerning objections. As to jury question number one, we rule that the defendant’s objections were not efficacious. Next, 3M objected to question number two in that question number two follows from question number one but inquires (3M argues) about a breach without regard to the two specific items that are listed in question number one and inquires of the jury whether or not they find a breach as to characteristics of the photographic emulsion without being the characteristics that were — that the jury would find warranted in number one. As such, 3M says question two allows that the jury to consider characteristics that the jury has not found to be warranted. Question two had a correct predicate. We have held that 3M’s objections to question number one, itself, are not valid. It is noteworthy that question numbei’ one concerning express warranties inquires about whether the new photographic emulsion would be suitable for making three-dimensional photographs or that the new photographic emulsion would be better than the old emulsion in making three-dimensional photographs. Those were the only two alternatives submitted in jury question number one. Juiy question number two simply inquires if 3M breached the express warranty, if any, as to the characteristics of the new photographic emulsion. The inquiry in question two was limited to the new photographic emulsion. This was in harmony and appropriate in view of jury question number one. Broad-form questions are favored. Rule 277. 3M’s objection to question number two is not sound. Moreover, the wording of jury question number two, we decide, restricts the jury to the consideration of the new emulsion as set out in question number one. The jury was not allowed or was not authorized to consider other different, separate, and independent characteristics. No error is shown. Next, 3M objected to the submission of question number three in this: We object to the submission of Question No. 3 which is a damage question predicated on No. 1 and 2 on a number of bases, Your Honor. As to all defendants except Nishika and LenTec, we object because they — it would— THE COURT: All plaintiffs. MR. SINGLETON: All plaintiffs. MR. McEVILY: I’m sorry. Let me correct that. As to all plaintiffs except Nishika and LenTec, we object and except because the question would grant damages to remote purchasers in that none of the plaintiffs other than Nishika or LenTec were purchasers from 3M and would allow consequential damages for — for these remote purchases which are not permitted under the form of the Uniform Commercial Code that has been adopted in Minnesota. Then, counsel for 3M, we opine, conceded that Minnesota along with four other States adopted the most liberal provisions of section 2-318, thereby not requiring any privity. But, the objections further stated that in this case the plaintiffs listed (other than Nishika and LenTec) have shown no property damage and no personal injuiy and the objection went further and stated that the drafters of section 2-318 have indicated that the extensions to remote purchasers goes only as far as section 402A of the Restatement (Second) of TORTS, and what the plaintiffs have attempted to do in this case is to exceed that boundary. We disagree with this objection. After all, question three asks individually and especially about each plaintiff. It asks if 3M’s breach was a direct cause of harm to each plaintiff. This litigation is not grounded on section 402A. Furthermore, we are decidedly of the view that under the Minnesota law, property damage and personal injuries and damages are not a prerequisite to recovery. The term “direct cause” was not objected to. It is a cause which had a substantial part in bringing about the harm, either immediately or through happenings which follow one after another incurred by any person or entity who may reasonably be expected to use, consume, or be affected by the 3M photographic materials. This totally unobjected-to definition of “direct cause” is based squarely on the Minnesota Statute reading that a seller’s warranty whether express or implied extends to any person who may reasonably be expected to use, consume, or be affected by the goods and who is injured by the breach of the warranty. Also a seller may not exclude or limit the operation of this section of the Minnesota law. 3M’s objections to question two and three are not sustainable. The plain language of Minnesota statute does not require property damage or personal injuries. Minnesota performed an orchideetomy on its enacted version of section 2-318. Minnesota after radical surgery on the UCC enacted this: Alternative C A seller’s warranty whether express or implied extends to any person who may reasonably be expected to use, consume or be affected by the goods and who is injured by breach of the warranty. A seller may not exclude or limit the operation of this section. Minnesota. In Alternative C, omits “with respect to injury to the person of an individual to whom the warranty extends”. 1A Uniform Law Ann., UCC, Master Ed. 557-9 (1989). Thus, 3M’s objections to question number three are not sustainable. We determine that there is a complete ground of recovery from the standpoint of liability in favor of the appellees and adverse and unfavorable to 3M, based on the jury’s answers to one, two, and three. Next, we review the objections to question number four. 3M objected to question number four by stating that there was no evidence, it being established as a matter of law that a sample was provided to the plaintiffs. Also 3M said it was uncontested by the plaintiffs that they had an opportunity to test it and examine it as much as “they” wanted and on this basis, question number four should not be submitted. For the same reason 3M objected to question five on the basis that a sample was submitted to the plaintiffs and therefore the plaintiffs could not obtain recovery on an implied warranty. 3M objected to question number six on the same basis as 3M objected to question five. This is objection by reference and is not permitted under Rule 274. Hence, this objection is not an appealable, preserved objection as to question six. 3M then objected to question number six pronouncing it was the proximate cause question; proximate cause is not mentioned in question number six. 3M objected to question seven “for the same reason”. Query: Is not this objection by reference? We think that those are the same objections by reference to six and five. The objection to six is affirmatively erroneous. Question seven was also objected to by 3M in that it inquires about implied warranties “which were specifically disclaimed by the unrefuted evidence to the effect that the plaintiff had received a sample and examined it and tested it as fully as it desired.” That exclusion or modification was given to the jury by instruction to questions four and seven. Under the record, this issue became a jury question. 3M lost that issue. That defensive instruction (quoted above) given to the jury twice— once in question number four and again in question number seven. 3M simply did not prevail with the jury. 3M further contends: “We object to Question No. 8 on the basis, there being no evidence following from our objection to Question No. 7.” Again, an objection by reference disallowed by the rules. And again 3M objected to question nine in that it would permit remote purchasers of the defective, unfit, incompatible products to recover for damages that are not permitted under the code. We simply disagree. The Minnesota law, as we perceive it, is definitely to the contrary. See § 2-318. And the direct cause definition is paramount on causation. The “direct cause” doctrine and definition were correct and they established the substantive theories of the case in this litigation. To question number ten, 3M objected on that same basis; that is, that the remote purchasers are permitted to recover beyond the recovery that is permitted to them under the code. Again, this is an objection by reference. We have explained why this objection is not valid above. But ten apparently was later changed. The above concluded all objections from 3M. 3M presented certain refused questions and refused instructions. No error is assigned or complained of on appeal as to their requests. The charge was closed. 3M’s contention as to remote purchasers is not sound under the Minnesota law or the theory upon which the case was tried. 3M’s able counsel did object for the failure to submit the questions that had been submitted to the court identified as Defendant’s Questions C, D, E, F, G, H, I, and the Defendant’s Proposed Instruction J all of which have been refused by the trial court. That concluded all objections and exceptions to the court’s charge. No point of error is presented to us concerning C, D, E, F, G, H, I, or J. Waiver and unappealability resulted. Question number four asked if 3M impliedly warranted the merchantability of the new photographic emulsion with the back-coat. 3M objected on the basis that there is no evidence and it has been established as a matter of law that a sample was provided to the plaintiffs and that it was uneontested by the plaintiffs that “they” had an opportunity to test it — examined it as much as “they” wanted to. On that basis, BM contends question four should not be submitted. We disagree. There were clear, correct instructions given in connection with question four. One of the instructions read: When the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him. We confidently decide that 3M’s total objections to question number four were actually fully met and complied with by the trial court’s clear instructions. Question four was for the jury. Under this record, 3M lost the issue with the jury. The other prong of the attack is that there was no evidence. We hold to the contrary. Under the settled rules of appellate review we can look only at the evidence that is favorable to the jury’s verdict and all reasonable inferences that flow therefrom. We must totally close our eyes and not consider the evidence that is contrary to the verdict and we must close our eyes to and not consider any inferences flowing from the contrary evidence. Then for the very same reasons by reference 3M objected to question number five. This is simply an objection by reference which is disallowed. But looking at it as a live objection based on a “sample” defense, it is noted that the court clearly and properly instructed upon that defense. We have determined that the objections to question number five are not valid or sustainable. Then 3M says this: “We object to Question No. 6 which on the same basis that we objected to Question No. 5.” Again, that is a reference objection, not good under the rules. Then, 3M says, “... being the — the proximate cause question that goes with Question No. 5 and there was no evidence that would justify its submission to the jury.” Again, we must disagree. Under the well recognized appellate decisions, this is a “no evidence objection” sometimes also referred to as a “legal insufficiency” objection. 3M is wrong. All of the objections to the series of issues four, five, and six basically complain of the “sample” defense or “no evidence”. None of the objections specifically attack whether 3M breached the implied warranty, if any, that the new photographic emulsion and the backcoat were merchantable. But, the Statutory section 2-316(2) specifically provides in order to exclude or to modify the implied warranty of merchantability or any part of the implied warranty of merchantability, the pertinent, relevant language must contain and mention merchantability. The invoices relied upon lack the required wording. Invoices were the basis of this group of objections. And the wording must be conspicuous. We find that there was no exclusion or modification of the implied warranty of merchantability. 3M’s objections failed to complain or mention merchantability. On a separate, independent basis we find in this case that any such writing on invoices was not conspicuous. We find and hold that the objections and exceptions to four, five, and six were not efficacious and we hold the answers to four, five, and six form a independent, separate, distinct and additional complete ground of recovery for Nishika Plaintiffs as to liability and damages. We must note again that 3M objected to question number six pronouncing it was the proximate cause issue. It is a question that goes with number five and there is no evidence that would justify the submission of six to the jury. 3M objects to six on the basis that it is the proximate cause question. The simple answer to those objections is that question six is not a proximate cause question in any sense and the phrase proximate cause is nowhere set out in question six. The same reasoning and rationale by 3M were the grounds of the objections to question number seven. It was the so-called “sample” defense that the plaintiffs had examined the sample and tested it as fully as desired. That correct “sample” instruction was clearly set out in the instructions to question four (as noted above) and was also made fully applicable by the charge to question seven. Then, 3M’s only objection to question number eight is that there was “no evidence” and the only objection to question number nine is that it would permit remote purchasers to recover for damages not permitted under the code. We conclude that 3M’s objections and exceptions to questions number seven, eight, and nine are'not sustainable and these three issues and answers thereto form a complete, separate, and independent basis of recovery under the theory that there was a breach of an implied warranty that the new photographic emulsion and the Generation I backcoat would be fit for a particular purpose. These two materials were not fit for a particular purpose and the jury so found, acting well within its powers. There was no objection to the instruction that followed question number seven which reads: Where the seller at the time of the sale has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is, unless excluded or modified as described in the instructions to Question No. 4, an implied warranty that the goods shall be fit for such purpose. By that instruction, the “sample” defense, having been clearly set out in number four and having been clearly encompassed and included in question seven, simply made the defendant’s objections ineffective. Clearly, the “no evidence” objection to question number eight is not tenable under this record and the objection to number nine is simply erroneous under Minnesota statutory law. This case, as well as question nine, was submitted on the concept that 3M breached an implied warranty concerning fitness for a particular purpose which breach thereof (as the jury found) was a direct cause of the harm, if any, suffered by the plaintiffs. 3M did not object to the direct cause definition as being the correct causation standard. A modern jury can follow the plain, simple and unequivocal instruction to question number seven. We note that there is no objection to the definitions which proceeded jury question number one. We discern that no objection whatsoever was made to any of the general instructions set out on pages two and three of the court’s charge. The December 18, 1992 charge conference was definitely closed. The first set of objections were taken on December 18, 1992. . There were some minor typing errors corrected and new questions framed over the weekend. On the following Monday morning, December 21, Mr. Wilson said: MR. WILSON: Your Honor, the evidence came in and we presented the evidence where you take out all the intracom-pany sales and transfers. You look at it. We looked at all four as a single economic unit, and that’s the way we would like to submit that, as a single unit. New question eleven inquired if Nishi-ka/LenTec’s failure to exercise reasonable care in using a new photographic emulsion together with the backcoat was a direct cause of harm suffered by the plaintiffs. The jury answered “Yes.” As to new question number twelve, asking about the apportionment of fault, 3M had no objection to grouping the plaintiffs under Nishika/LenTec, which were found to be 49 percent at fault. It should be noted again that in the unobjected-to definitions, definition number four reads: By the term “Nishika/LenTec” as used in this Charge, is meant Nishika Ltd., Len-Tec Corp., American 3D Ltd., and Nishika Manufacturing (H.K.) Ltd. Note also that the judge instructed the jury as follows, “You are the sole judges of whether a witness is to be believed and of the weight to be given to the testimony of each.” There are objections to new question thirteen which is the money damage issue. The objections, as we read them, are that there is evidence that some of the Nishi-ka/LenTee plaintiffs may be entitled to recovery on some theories and under some causes of action, whereas others cannot and the submission as phrased in thirteen will make it impossible for the trial court to know which of the Nishika/LenTec plaintiffs the jury awarded damages to. Also, since there are some of the Nishika/LenTec plaintiffs concerning which there is no evidence that they could recover damages, then question number thirteen is improperly phrased and thus each plaintiff should be broken out. We determine that the objections to thirteen do not advise the trial court as to which of the plaintiffs may be entitled to recover on some theories or some causes of action and which of the plaintiffs are not entitled to recover under some theories or some causes of action. The objection is not distinct. Rule 274. Waiver results. But, 3M did not object to the “Nishika/LenTec” designation when it came to the comparative fault questions and 3M was willing to accept the entire 49 percent finding of fault adverse to Nishi-ka/LenTec. 3M was found to be 51 percent at fault. Basically, the later objections on Monday, December 21, 1992, to thirteen can be summed up in that there are some of the Nishika/LenTec plaintiffs concerning which there is no evidence that they could recover damages alleged by the plaintiffs — but which plaintiffs. This again is a “no evidence” objection. We conclude that there was evidence of probative value and force favorable to and actionable by the four companies under the Minnesota law. The Last Objections to Question Thirteen These objections if followed by the court would have caused a conflict in this: the direct cause definition is not objected to and the instructions were not objected to. The definition number four covering Nishika/Len-Tec incorporated the other two plaintiffs — no objection was lodged. If the court followed the defendant’s later objection to thirteen, the court would have listed Nishika/LenTec which had been defined in the general definitions as covering all four plaintiffs and if the court would have listed separately American 3D and Nishika (H.K.) (as desired by 3M) the jury would have been confused. Following that requested submission, the jury would have answered Nishika/LenTec damages as covering all four plaintiffs and in addition thereto the jurors would have listed and awarded the damages, cumulatively, additionally, and duplicatively as to American 3D and as to Nishika (H.K.), thereby creating a double recovery or at least a duplication with overlapping recoveries. 3M’s objections to question number thirteen are overruled; they would have led to error. Without criticism of any party, the objection to thirteen tended to invite error. Summary of Minnesota Law The trial court properly concluded that Minnesota law governed the substantive law aspects of this litigation. Under landmark decisions in our jurisdiction, the selection of the correct substantive law for contract causes of action is determined by references to the “most significant relationship” test as set out in sections 6 and 188 of the Restatement (Second) of the Conflict of Laws. In determining which State’s law should govern the construction of contractual rights, our Texas Supreme Court has looked to the principles set out in the Restatement (Second) of Conflict of Laws (1971). See DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 678-680 (Tex.1990), cert. denied, 498 U.S. 1048, 111 S.Ct. 755, 112 L.Ed.2d 775 (1991); See and compare Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex.1984). Our Supreme Court in a recent case has looked with favor upon section 188(1) of the Restatement pronouncing the sound and general rule: The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6. Maxus Exploration v. Moran Bros., 817 S.W.2d 50, 53 (Tex.1991). Section 188 enumerates the contacts comprising the relationship between the transactions and the local laws ordinarily to be taken into account in applying the principles in section 6. These principles include for example: a) the place of contracting, b) the place of negotiation of the contract, c) the place of performance, d) the location of the subject matter of the contract, and e) the domicile, residence, nationality, place of incorporation, and place of business of the parties. Thus, the State with the most significant relationship to the contract and to the transaction and to the parties, we conclude and hold is the State of Minnesota. See and compare Duncan v. Cessna Aircraft Co., supra; Gutierrez v. Collins, 583 S.W.2d 312, 318 (Tex.1979); Maxus Exploration, supra. Significant and important in evaluating the contacts is the relevancy and relative importance with respect to the issues involved. Clearly, Minnesota had the most significant relationship to the business dealings, transactions, and contractual matters occurring in Minnesota and giving rise to this litigation. We conclude the trial judge was right that the State of Minnesota and Minnesota law possesses the “most significant relationship” to this case. The following factors are of compelling and cogent significance. 3M’s corporate headquarters and principal place of business are both located in Minnesota. The important meeting held in January of 1988 that formed the genesis and the basis on which the parties went forward and conducted their affairs over the next approximately two years or more, occurred in Minnesota. This very important meeting was the one in which Bainbridge-explained the family of companies as well as the multi-million dollar investments that had been made and the tens of millions of dollars of investments that had been planned to be invested in the future as well as the mode and manner in which the progress and course of business would be executed. These meetings and these conversations took place in Minnesota. A certain meeting in January of 1988 and the follow up meetings in August and December of 1988 also were situated in Minnesota. In July of 1988, Nishika ordered its first installment of photographic material from 3M by sending an order to 3M in Minnesota. The order was filled and executed in Minnesota. The negotiations and dealings for each batch of photographic materials and the purchase of the said materials between Nishi-ka/LenTec and 3M occurred in Minnesota or in some cases by telephone communications with 3M officials in Minnesota and these telephone negotiations were acted upon by 3M officials in Minnesota and the photographic materials were manufactured and prepared in Minnesota. One of the most important and crucial products that was supplied by 3M, being the backeoat for the three-dimensional photographs, was developed within Minnesota and was manufactur