Downey v. Bob's Discount Furniture Holdings Inc.

• Citation: 633 F.3d 1
• Decision Date: 14 January 2011
• Docket Number: No. 09–2137.,09–2137.
• Parties: Yvette DOWNEY et al., Plaintiffs, Appellants,v.BOB'S DISCOUNT FURNITURE HOLDINGS, INC., Defendant, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

633 F.3d 1

78 Fed.R.Serv.3d 621

84 Fed. R. Evid. Serv. 640

Yvette DOWNEY et al., Plaintiffs, Appellants,

v.BOB'S DISCOUNT FURNITURE HOLDINGS, INC., Defendant, Appellee.

No. 09–2137.

United States Court of Appeals, First Circuit.

Heard Nov. 3, 2010.Decided Jan. 14, 2011.

David M. Bryan, with whom Marshall F. Newman and Newman & Newman, P.C., were on brief, for appellants.Robert P. La Hait, with whom The McCormack Firm, LLC, was on brief, for appellee.Before BOUDIN, SELYA and STAHL, Circuit Judges.SELYA, Circuit Judge.

Although this appeal challenges three rulings of the district court, it turns on only one of them: the exclusion of expert testimony as a sanction for failure to comply with the disclosure requirements of Federal Rule of Civil Procedure 26(a)(2)(B). Because the expert in question was not an expert specially retained or employed for the purpose of testifying, we hold that the rule did not justify exclusion of the proffered testimony. Finding that error prejudicial, we reverse.

I. BACKGROUND

In 2005, the plaintiffs, Yvette Downey and her daughter, Ashley Celester, were living in Randolph, Massachusetts. Early that year they began to experience skin irritation, which they originally attributed to allergies or infections. In the crepuscular hours of July 24, 2005, they awoke to discover an outbreak of insects. The parties agree in their briefs that some of the bugs were covering Ashley's body.¹

Yvette Downey immediately called Allegiance Pest Control and spoke to the service manager, Edward Gordinier, a licensed and experienced exterminator. Gordinier inspected the plaintiffs' home that day. His inspection revealed “bedbugs harboring in the bed frame,” which had been purchased from the defendant, Bob's Discount Furniture Holdings, Inc., as part of a children's bedroom set. The defendant delivered the set on December 29, 2004.

Contemporaneous with the inspection, Gordinier prepared an incident report summarizing his findings. Pertinently, the report stated:

I inspected the entire apartment for insect activity. I found a moderate infestation of bed bugs throughout the house. The main source of activity is coming from [Ashley Celester's] room. It appears as though they have been carried to other areas of the house unknowingly. I recommend the entire house receive treatment immediately.

Yvette Downey promptly informed the defendant of the bedbug infestation. Moreover, on the day after his initial inspection, Gordinier sent a facsimile transmission to the defendant. The fax reported his findings and encouraged the defendant to defray the costs of extermination. Consistent with its return policy, the defendant retrieved and destroyed the allegedly offending furniture and refunded the purchase price. It did not agree to pay for the costs of extermination.

At the plaintiffs' request, Gordinier subsequently carried out the needed extermination treatments. The plaintiffs allege that they experienced lasting health problems, emotional distress, and economic loss as a result of the entomological episode.

Invoking diversity jurisdiction, 28 U.S.C. § 1332(a)(1), the plaintiffs sued in the United States District Court for the District of Massachusetts. The operative pleading—their amended complaint—asserted claims for negligence, breach of implied warranties of fitness for a particular purpose and merchantability, and violations of a Massachusetts consumer protection law. The defendant denied fault.

On June 4, 2007, the parties agreed to proceed before a magistrate judge. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73(a). The magistrate judge (whom we hereafter shall refer to as the district court) gave the parties until November 14, 2007 to designate experts. On the very day on which that deadline expired, the plaintiffs designated their exterminator, Gordinier, as an expert. This disclosure related that Gordinier would “be used by [the plaintiffs] to give opinion testimony and otherwise present evidence under F.R.E. 702, 703 and/or 705.”

Although the plaintiffs named Gordinier (who, in all events, had previously been listed as a fact witness), they did not produce a written report delineating the details of Gordinier's anticipated testimony, nor did they specify his qualifications. Instead, they asserted that Gordinier had not been retained or specially employed as an expert (and that, therefore, no such supplemental disclosures were required).

At subsequent pretrial conferences, the defendant maintained that the plaintiffs' disclosure was incomplete without a written report. The plaintiffs continued to demur.

At a conference held on April 10, 2008, the plaintiffs represented that they would call Gordinier as an expert witness on the issue of causation. His opinion would be offered to show that the bedbugs probably had been delivered along with the purchased bedroom set. The plaintiffs' lawyer stated that Gordinier based this conclusion on his observation that the bedbugs were harboring in the bed frame and on his specialized knowledge that bedbugs were capable of living dormant and without feeding for many months.

Forewarned by this representation, the defendant noticed Gordinier's deposition. It then canceled the scheduled deposition, explaining that neither Gordinier's findings nor his qualifications had been adequately disclosed.

As trial approached, the case was reassigned to a different magistrate judge. The defendant subsequently filed two motions in limine. The first sought preclusion of Gordinier's opinion on causation. The second sought preclusion of evidence of thirty-six customer complaints that the defendant had received between 2004 and 2006.

The district court heard arguments and granted both motions. The court grounded its preclusion of Gordinier's opinion testimony on the plaintiffs' failure to submit a written report as required by Federal Rule of Civil Procedure 26(a)(2)(B).² As to the second motion, the court found the customer complaint evidence not relevant and, in any event, more prejudicial than probative.

Trial commenced on July 27, 2009. The plaintiffs called Gordinier as their first witness. After he had related details of his inspection of the premises, he was asked whether he had formed an opinion as to the source of the bedbug infestation. He replied in the affirmative. Upon the defendant's objection to admission of that opinion, the court reaffirmed its pretrial ruling and prohibited the plaintiffs from pursuing Gordinier's opinion testimony as to the cause of the infestation.

In addition to fact testimony from Gordinier, the plaintiffs themselves testified and they introduced the deposition of the defendant's manager of delivery operations. This deposition testimony revealed that the defendant had no written policy anent the prevention of bedbug infestations. It also revealed that used bedding retrieved from customers' homes was routinely hauled in the same trucks and at the same times as new furniture to be delivered.

At the close of the plaintiffs' case in chief, the defendant moved for judgment as a matter of law. See Fed.R.Civ.P. 50(a). Concluding that the plaintiffs had not offered sufficient evidence to show either that “bedbugs existed in the furniture at the time it was delivered” or that the defendant “breached the relevant standard of care,” the district court granted the motion. This timely appeal ensued.

II. ANALYSIS

On appeal, the plaintiffs claim that the district court abused its discretion both in excluding Gordinier's opinion testimony and in blocking the introduction of customer complaint evidence. The plaintiffs add that because of these errant rulings, the district court incorrectly took the case from the jury. We address these claims sequentially.

A. Expert Testimony.

The trial court's exclusion of Gordinier's opinion testimony rested on its conclusion that the plaintiffs' failure during discovery to produce a written report from Gordinier transgressed the commands of Rule 26(a)(2)(B). The district court's action amounts to preclusion as a sanction for a discovery violation and, thus, is reviewed for abuse of discretion. Macaulay v. Anas, 321 F.3d 45, 51 (1st Cir.2003).

This is a familiar standard of review. A court abuses its discretion “if it ignores a material factor deserving significant weight, relies upon an improper factor, or assesses only the proper mix of factors but makes a serious mistake in evaluating them.” Gomez v. Rivera Rodríguez, 344 F.3d 103, 112 (1st Cir.2003). Embedded within this rubric is the principle that a material error of law invariably constitutes an abuse of discretion. Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 292 (1st Cir.2001). It is against this backdrop that we examine the challenged ruling.

We have explained that Rule 26 “is an integral part of the machinery devised to facilitate the management of pretrial discovery.” Gomez, 344 F.3d at 112. Among other things, the rule provides for wide-ranging pretrial disclosures in connection with anticipated expert testimony. At its most basic level, the rule obligates a party who wishes to offer expert testimony to disclose “the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” Fed.R.Civ.P. 26(a)(2)(A). In the case at hand, the plaintiffs seasonably complied with this identification requirement, naming Gordinier as a potential expert witness regarding causation.

Other, more stringent disclosure requirements pertain to a witness who is “retained or specially employed to provide expert testimony in the case or ... whose duties as the party's employee regularly involve giving expert testimony.” Fed.R.Civ.P. 26(a)(2)(B). The proponent of a witness falling into this subset must submit to the opposing party “a written report containing, inter alia, detailed information as to the qualifications and intended testimony of the witness.” Gomez, 344 F.3d at 113 (discussing Rule 26(a)(2)(B)). The district...