New England Surfaces v. E.I. Du Pont De Nemours, No. 08-1048. This is a fairly complicated franchise fight which ends in a motion in limine regarding an expert on damages. The First explains this:
first, that even assuming the motion in limine was properly granted, the district court had no business moving from there to a dismissal of the remaining claims because no summary judgment motion or motion to dismiss was pending; and,
second, that exclusion of the damage testimony does not justify dismissal because "lost profits would be only one method by which NES could prove damage."
But First then says that the plaintiff didn't move for reconsideration and offer to show how they could show damges, or whatever its fallback theory was. On the other hand, applying the Connecticut franchise act, the First says that the District Court’s mistakes are not supportable, and analyzing a conflict of laws question (between the Franchise Act and a Delaware forum selection clause), and sends them back to be redone.