Downey v. Bob's Discount Furniture Holdings, Inc.

United States Court of Appeals
For the First Circuit

No. 09-2137

YVETTE DOWNEY ET AL.,

Plaintiffs, Appellants,

v.

BOB'S DISCOUNT FURNITURE HOLDINGS, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Judith G. Dein, U.S. Magistrate Judge]

[Hon. Joyce L. Alexander, U.S. Magistrate Judge]

Before

Boudin, Selya and Stahl, Circuit Judges.

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.

January 14, 2011
 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

1
Testimony in the record indicates that the bugs may actually
have been swarming over the body of a visiting cousin. For present
purposes, the difference is inconsequential, so we do not try to
resolve it.

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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

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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.

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 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

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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.

2
Relatedly, the court ordered the plaintiffs to provide the
defendant with a copy of Gordinier's curriculum vitae and an
enumeration of all other cases in which he had testified. See Fed.
R. Civ. P. 26(a)(2)(B). In response to this directive, the
plaintiffs furnished a document stating that Gordinier had no
curriculum vitae and had not previously testified. That ruling and
response are not in issue on this appeal.

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 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

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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

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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 court

held that Gordinier came within this taxonomy and that, therefore,

the plaintiffs had flouted their obligation to furnish the

required information. In the court's view, the plaintiffs'

failure warranted the preclusion of Gordinier's opinion testimony.

The question, then, is whether Gordinier fit into this subset of

experts.

"It is well settled that 'the starting point for

interpreting a statute is the language of the statute itself.'"

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484

U.S. 49, 56 (1987) (quoting Consumer Prod. Safety Comm'n v. GTE

Sylvania, Inc., 447 U.S. 102, 108 (1980)); see In re 229 Main St.

Ltd. P'ship, 262 F.3d 1, 5 (1st Cir. 2001). The same starting

point obtains when a court is charged with interpreting a formal

procedural rule. See, e.g., In re Pharm. Indus. Average Wholesale

Price Litig., 588 F.3d 24, 39 (1st Cir. 2009); Duluth Lighthouse

for the Blind v. C.G. Bretting Mfg. Co., 199 F.R.D. 320, 325 (D.

Minn. 2000).

As the text of Rule 26(a)(2)(B) makes plain, the rule

covers two types of experts: (i) "retained or specially employed"

experts who meet certain criteria and (ii) employees of a party

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who meet certain criteria. Fed. R. Civ. P. 26(a)(2)(B). Because

there is no suggestion that Gordinier was regularly employed by

the plaintiffs, the lens of our inquiry narrows to whether he was

"retained or specially employed."

The circumstances suggest that he was not. For one

thing, there is no evidence that Gordinier was a person who held

himself out for hire as a purveyor of expert testimony. For

another thing, there is no evidence that he was charging a fee for

his testimony.

In order to give the phrase "retained or specially

employed" any real meaning, a court must acknowledge the difference

between a percipient witness who happens to be an expert and an

expert who without prior knowledge of the facts giving rise to

litigation is recruited to provide expert opinion testimony. It is

this difference, we think, that best informs the language of the

rule.

This point is most aptly illustrated by the distinction

that courts have drawn between treating physicians and physicians

recruited for the purpose of giving expert opinion testimony. The

advisory committee specifically uses this distinction to illustrate

the type of witness exempted from the written report requirement.

See Fed. R. Civ. P. 26 advisory committee's note. Courts have

followed suit. See, e.g., Gomez, 344 F.3d at 113.

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 This analogy is persuasive here. Like a treating

physician — and unlike a prototypical expert witness — Gordinier

was not retained or specially employed for the purpose of offering

expert opinion testimony. Rather, he was "an actor with regard to

the occurrences from which the tapestry of the lawsuit was woven."

Id. Put another way, his opinion testimony arises not from his

enlistment as an expert but, rather, from his ground-level

involvement in the events giving rise to the litigation. Thus, he

falls outside the compass of Rule 26(a)(2)(B). See Fielden v. CSX

Transp., Inc., 482 F.3d 866, 869 (6th Cir. 2007).

In an effort to blunt the force of this reasoning, the

defendant contends that Gordinier should be considered "retained"

because his inspection reports do not indicate that he deduced the

cause of the infestation in the process of inspecting and treating

the plaintiffs' premises. See, e.g., Meyers v. Nat'l R.R. Pass.

Corp., 619 F.3d 729, 734 (7th Cir. 2010). This contention

misperceives both the law and the facts.

Interpreting the words "retained or specially employed"

in a common-sense manner, consistent with their plain meaning, we

conclude that 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). See id. at 734-35; Garcia v. City of

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Springfield Police Dep't, 230 F.R.D. 247, 249 (D. Mass. 2005);

Sprague v. Liberty Mut. Ins. Co., 177 F.R.D. 78, 81 (D.N.H. 1998).

This sensible interpretation is also consistent with the unique

role that an expert who is actually involved in the events giving

rise to the litigation plays in the development of the factual

underpinnings of a case. Finally, this interpretation recognizes

that the source, purpose, and timing of such an opinion differs

materially from the architecture of an opinion given by an expert

who is "retained or specially employed" for litigation purposes.3

Consequently, where, as here, the 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. See, e.g., In re Aredia & Zometa

Prods. Liab. Litig., ___ F. Supp. 2d ____, ____, No. 3:06-MD-1760,

2010 WL 4970910, at *2 (M.D. Tenn. Dec. 7, 2010); Salas v. United

States, 165 F.R.D. 31, 33 (W.D.N.Y. 1995). If, however, the expert

comes to the case as a stranger and draws the opinion from facts

3
The defendant suggests that this rule encompasses a
requirement that the causation testimony must have been necessary
to the treatment. Although a few district courts have held that a
report is required for causation testimony that was not necessary
to the treatment, see, e.g., Starling v. Union Pac. R.R. Co., 203
F.R.D. 468, 479 (D. Kan. 2001), most courts do not draw such a
distinction, see, e.g., Garcia, 230 F.R.D. at 249; Sullivan v.
Glock, Inc., 175 F.R.D. 497, 501 (D. Md. 1997); Hall v. Sykes, 164
F.R.D. 46, 48-49 (E.D. Va. 1995). We accept this majority view and
adhere to the distinction explicitly drawn by Rule 26 — a
distinction that is based on the role the witness has played in the
case. See Brandt Distrib. Co. v. Fed. Ins. Co., 247 F.3d 822, 825-
26 (8th Cir. 2001).

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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).4 See Stanley Martin Cos. v.

Univ'l Forest Prods. Shoffner LLC, 396 F. Supp. 2d 606, 619 n.8 (D.

Md. 2005); Garcia, 230 F.R.D. at 249.

We pause to take stock. While we acknowledge that the

difference between an opinion formulated by an on-the-scene expert

during treatment (e.g., by a treating physician) and one formulated

by an expert hired in anticipation of testimony does not leap off

the page, a close reading of the text of Rule 26(a)(2)(B) convinces

us that this is the precise distinction that the drafters of the

rule had in mind. We apply that distinction here. We add, in

fairness to the district court, that this distinction was blurred

by the plaintiffs' initial designation of Gordinier as both a fact

witness and an expert.5 Nevertheless, after a careful examination

4
Although we have reviewed this claim of error in accordance
with the version of Rule 26(a) that was in effect at the time of
trial, a recent amendment to the rule, effective December 1, 2010,
reinforces our interpretation. In an effort to "resolve[] a
tension that has sometimes prompted courts to require reports under
Rule 26(a)(2)(B) even from witnesses exempted from the report
requirement," Fed. R. Civ. P. 26 advisory committee's note, the
rule was amended to emphasize that a Rule 26(a)(2)(B) "report is
required only from an expert described in (a)(2)(B)." Id.
(emphasis supplied). Citing the example of a treating physician,
the advisory committee explained that a "witness who is not
required to provide a report under Rule 26(a)(2)(B) may both
testify as a fact witness and also provide expert testimony under
Evidence Rule 702, 703, or 705." Id.
5
Conceivably, in some cases an on-the-scene expert whose
views are not subject to the written report requirement of Rule

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of the record, we are satisfied that the distinction between the

two types of experts was argued by the plaintiffs in the court

below with sufficient clarity to preserve the claim of error.

Given that the claim of error has been preserved, what remains is

to apply Rule 26(a)(2)(B) as we have parsed it to the case at hand.

Gordinier was called to the plaintiffs' home to inspect

and treat the infestation. On the day after his initial

inspection, he prepared and transmitted a report to the defendant

in hopes of convincing the defendant to accept responsibility and

defray the costs of extermination (treatment). This sequence of

events leaves no doubt but that Gordinier formed his opinion about

causation (that is, about the defendant's responsibility for the

infestation) based on his personal knowledge and information

gleaned in the course of his initial inspection and related efforts

to remediate the problem. Accordingly, the report requirement of

Rule 26(a)(2)(B) did not pertain to Gordinier's causation opinion.

See Brandt Distrib. Co. v. Fed. Ins. Co., 247 F.3d 822, 825-27 (8th

Cir. 2001); Garcia, 230 F.R.D. at 249. The district court,

therefore, abused its discretion in excluding the proffered

testimony on this ground.

26(a)(2)(B) might also be retained or specially employed to develop
additional opinions for purposes of trial (and would, to that
extent, trigger the written report requirement). We need not dwell
on this possibility, however, as the situation presented here does
not appear to cross that line.

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 There is one loose end. The defendant suggests that the

district court's exclusion of this testimony was independently

supported by the district court's finding that Gordinier was

unqualified to render the opinion. See Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579, 588, 592-93 (1993); see also Fed. R.

Evid. 702. The record belies this suggestion: the district court

made no such finding. Withal, the issue of Gordinier's

qualifications remains open on remand.

B. Customer Complaints.

The plaintiffs also challenge the district court's

exclusion of a compendium of thirty-six customer complaints lodged

with the defendant between 2004 and 2006. The plaintiffs aspired

to offer this evidence to show that their alleged injury was

reasonably foreseeable because others had advised the defendant of

comparable incidents. The district court excluded this evidence

because nothing in the record tended to show that the complaints

were substantially similar to the plaintiffs' complaint. We review

rulings admitting or excluding evidence for abuse of discretion.

Colasanto v. Life Ins. Co. of N. Am., 100 F.3d 203, 212-13 (1st

Cir. 1996).

Federal evidentiary rules govern in diversity cases.

Fitzgerald v. Expwy. Sewerage Constr., Inc., 177 F.3d 71, 74 (1st

Cir. 1999). If the federal rule is expansive enough to provide

reliable guidance on a given issue, the court must apply it. Id.;

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Daigle v. Me. Med. Ctr., Inc., 14 F.3d 684, 689 (1st Cir. 1994).

The question presented here concerns the relevancy and unfairly

prejudicial effect of the proffered evidence, and the Federal Rules

of Evidence are sufficiently broad to encompass it. See Fed. R.

Evid. 401-403.

This claim of error fails at the outset. The plaintiffs

never marked for introduction, or otherwise placed in the record,

the list of complaints. An appellant has the burden of ensuring

that the record is adequate to permit reasoned review of her

claims. See Real v. Hogan, 828 F.2d 58, 60-61 (1st Cir. 1987).

The plaintiffs have defaulted on this obligation with respect to

the instant claim.

Even were we prepared to overlook this omission, the

claim is hopeless. As best we can tell, the proffered evidence

consists of a computer-generated printout. Each segment contains

a cryptic description of the nature of a particular complaint, a

description of the type of furniture involved, and a notation of

the company's response. There are no details of any sort.

The printout was produced by the defendant during

pretrial discovery, and the plaintiffs conducted no investigation

into the underlying facts of any of the thirty-six listed

complaints. On the bare bones of the printout, none of the

complaints appears to be similar, and the plaintiffs made no effort

to establish any substantial similarity between the incidents

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underlying the enumerated complaints and the incident giving rise

to this action. Indeed, on questioning by the district court the

plaintiffs admitted that they could not even establish that any of

the enumerated complaints involved actual bedbug infestations.

Given this paucity of proof and the uncertainty as to

what the printout means, it was well within the sweep of the

district court's discretion to exclude it. See Heath v. Suzuki

Motor Corp., 126 F.3d 1391, 1396 (11th Cir. 1997) (noting need for

special care in admitting evidence of purportedly similar

incidents); McKinnon v. Skil Corp., 638 F.2d 270, 277 (1st Cir.

1981) (explaining that "[e]vidence of prior accidents is admissible

. . . only if the proponent of the evidence shows that the

accidents occurred under circumstances substantially similar to

those at issue in the case at bar"); see also United States v.

Maldonado-García, 446 F.3d 227, 232 (1st Cir. 2006) (noting that to

be relevant, evidence must make the existence or non-existence of

a material fact more likely) (citing Fed. R. Evid. 401).

The plaintiffs attempt to salvage this evidence by

arguing that its admission with a limiting instruction would have

been appropriate. This argument is jejune.

The first (rather large) fly in the ointment is that the

plaintiffs never make clear what limiting instruction they think

would have been suitable and, in all events, they never requested

a limiting instruction below with respect to the computer-generated

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printout. Their claim of error is, therefore, forfeited. See

United States v. Leahy, 473 F.3d 401, 409-10 (1st Cir. 2007).

We need not probe the ramifications of this forfeiture

because the argument puts the cart before the horse. Without a

showing of substantial similarity, the evidence was not

significantly probative, and evidence that is not significantly

probative may be excluded entirely. United States v. DeSimone, 488

F.3d 561, 571 (1st Cir. 2007); United States v. Sepulveda, 15 F.3d

1161, 1194 (1st Cir. 1993). That is especially so where, as here,

the evidence has a high potential for unfair prejudice. See, e.g.,

McKinnon, 638 F.2d at 277; see also Fed. R. Evid. 403.

C. Judgment as a Matter of Law.

The plaintiffs' last assignment of error relates to the

district court's entry of judgment as a matter of law. We review

the disposition of a motion for judgment as a matter of law de

novo. Gibson v. City of Cranston, 37 F.3d 731, 735 (1st Cir.

1994). A reviewing court, like a trial court confronted with such

a motion, "must scrutinize the evidence and the inferences

reasonably extractable therefrom in the light most hospitable to

the nonmovant." Martínez-Serrano v. Quality Health Servs. of P.R.,

Inc., 568 F.3d 278, 284 (1st Cir. 2009). In conducting this assay,

"the court must not pass upon the credibility of the witnesses,

resolve evidentiary conflicts, or engage in a comparative weighing

of the proof." Id. at 285. Granting such a motion is appropriate

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only if the evidence, distilled in this fashion, dictates a result

as to which reasonable minds cannot differ. Veranda Beach Club

Ltd. P'ship v. W. Sur. Co., 936 F.2d 1364, 1383-84 (1st Cir. 1991).

Inasmuch as this is a diversity action, state

substantive law controls. See Erie R.R. Co. v. Tompkins, 304 U.S.

64, 78 (1938). Here, the incident giving rise to the litigation

occurred in Massachusetts and, thus, we look to Massachusetts law.

To recover on a claim of negligence in Massachusetts, a

plaintiff must establish by a preponderance of the evidence that

she sustained an injury proximately caused by the defendant's

breach of a duty of care. Bennett v. Eagle Brook Country Store,

Inc., 557 N.E.2d 1166, 1168 (Mass. 1990). The district court found

the proof deficient because the plaintiffs failed to show either

proximate cause or breach of duty. We examine both conclusions.

To make out causation, a plaintiff bears the burden of

adducing sufficient evidence to undergird a finding of a causal

connection between her alleged injury and the defendant's

negligence. Glicklich v. Spievack, 452 N.E.2d 287, 290 (Mass. App.

Ct. 1983). In this instance, the district court reached its

conclusion about causation without the benefit of Gordinier's

excluded opinion testimony. Had that testimony been admitted, a

rational jury obviously could have drawn an inference of causation.

After all, Gordinier would have opined that the likely source of

the bedbug infestation was the bedroom set purchased from and

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delivered by the defendant. This opinion evidence, coupled with

evidence that the defendant had no written policy regarding the

prevention of bedbugs and that it used the same trucks for both

delivering new furniture and retrieving used furniture, is

sufficient to support a conclusion that the defendant delivered

bedbugs along with the bedroom set. See, e.g., Cook v. RI Dep't of

Mental Health, Retardation, and Hosps., 10 F.3d 17, 21, 26 (1st

Cir. 1993).

The evidence relating to the defendant's breach of duty

was also sufficient. In most scenarios, the jury does not need

expert testimony to find that a defendant breached its duty of

care. See Coyle v. Cliff Compton, Inc., 583 N.E.2d 875, 878 (Mass.

App. Ct. 1992). Common sense and common experience will suffice.

To be sure, expert testimony is required in certain

circumstances in which a factfinder cannot reasonably be expected

to make a judgment without the benefit of technical expertise or an

informed understanding of professional standards. See, e.g., Atlas

Tack Corp. v. Donabed, 712 N.E.2d 617, 621 (Mass. App. Ct. 1999);

Brown v. Gerstein, 460 N.E.2d 1043, 1049 (Mass. App. Ct. 1984).

But that is the exception, not the rule — and the exception is

narrowly cabined. The general rule is that "[w]here a matter may

easily be comprehended by jurors the testimony of an expert has no

place." Coyle, 583 N.E.2d at 878 (citation and internal quotation

marks omitted).

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 Here, the plaintiffs' claim stems from the purchase and

delivery of new furniture. This is not a highly technical or

scientific field but, rather, a mundane occurrence that falls

within the realm of common experience. Consequently, no expert

testimony was necessary to establish the standard of care. See

id.; Adams v. U.S. Steel Corp., 506 N.E.2d 893, 895 (Mass. App. Ct.

1987).

The short of it is that the evidence of record, together

with Gordinier's opinion testimony, could lead a jury reasonably to

conclude that the defendant violated its duty of care. And in the

same vein, this evidence could plausibly permit the jury to find in

favor of the plaintiffs on their claims for violation of

Massachusetts consumer protection law and for breach of warranty.

Iannacchino v. Ford Motor Co., 888 N.E.2d 879, 889 (Mass. 2008).

III. CONCLUSION

We need go no further. For the reasons elucidated

above, we reverse the judgment below and remand for a new trial.

Costs shall be taxed in favor of the plaintiffs.

Reversed and remanded.

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