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Downey v. Bob's Disc. Furniture Holdings - 633 F.3d 1 (1st Cir. 2011)


Interpreting the words "retained or specially employed" in Fed. R. Civ. P. 26(a)(2)(B) in a common sense manner, consistent with their plain meaning, as long as an expert was not retained or specially employed in connection with the litigation, and his opinion about causation is premised on personal knowledge and observations made in the course of treatment, no report is required under the terms of Rule 26(a)(2)(B). Where an expert is part of the ongoing sequence of events and arrives at his causation opinion during treatment, his opinion testimony is not that of a retained or specially employed expert. If, however, the expert comes to the case as a stranger and draws the opinion from facts supplied by others, in preparation for trial, he reasonably can be viewed as retained or specially employed for that purpose, within the purview of Rule 26(a)(2)(B).


After purchasing a bedroom set, plaintiffs-appellants Yvette Downey and daughter Ashley Celester experienced skin irritations and discovered an outbreak of insects. An exterminator, Edward Gordinier, found bedbugs in the bed frame purchased from defendant-appellee Bob's Discount Furniture Holdings, Inc. (“Bob’s”). The exterminator  prepared an incident report summarizing his findings. The district court precluded the exterminator's opinion testimony due to Downey’s failure to submit a written report and granted the Fed. R. Civ. P. 50(a) motion filed by Bob’s on the basis that Downey did not offer sufficient evidence showing that Bob’s breached the relevant standard of care.


In plaintiff buyers' action stemming from bedbug-infested furniture, was an exterminator's report erroneously excluded, given that the exterminator was not an expert  specially retained or employed for the purpose of testifying?




Reversing the judgment, the United States Court of Appeals for the First Circuit held that the exterminator's report was erroneously excluded under Rule 26(a)(2)(B). The exterminator was not retained or specially employed by the buyer plaintiffs and he did not hold himself out as an expert; rather, he was a witness to the underlying events, who happened to be an expert. The Court further found that other customers' complaint evidence was properly excluded because there was no showing that these complaints were substantially similar to the buyers' complaints. The Court also vacated the Rule 50(a) motion because the buyers did not need expert testimony to establish the standard of care for the purchase and delivery of new furniture, which is not a highly technical or scientific field. Remanding for a new trial, the Court concluded that the evidence, together with the exterminator's opinion testimony, could lead a jury reasonably to conclude that defendant seller Bob's violated its duty of care, as well as the Massachusetts consumer protection law and for breach of warranty.  

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