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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