Cengage Advantage Books: Fundamentals of Business Law 9th Edition by Roger LeRoy Miller

Exercise 14

Downey v. Bob's Discount Furniture Holdings, Inc.
United States Court of Appeals, First Circuit, 633 F.3d 1 (2011).
FACTS Yvette Downey bought a children's bedroom set from Bob's Discount Furniture Holdings, Inc., in 2004. Soon, Downey and her daughter, Ashley Celester, began to experience skin irritation. In July 2005, they discovered insects in their home, and some of the bugs were on Ashley's body. Downey immediately called Allegiance Pest Control and spoke to Edward Gordinier, a licensed and experienced exterminator. Gordinier inspected Downey's home that day. He found bedbugs throughout the house and identified Ashley's bedroom set as the main source of the infestation. Downey informed Bob's about the problem. Although Bob's retrieved the bedroom set and refunded the purchase price, it refused to pay for the costs of extermination or any other damages. Downey and her daughter filed a lawsuit in a federal district court seeking compensation for health problems, emotional distress, and economic loss. Before the trial, the plaintiffs named Gordinier as a witness but did not submit a written report describing his anticipated testimony or specifying his qualifications. Rule 26 of the Federal Rules of Civil Procedure requires that a written report be filed for an expert witness who is retained or specially employed to provide expert testimony. The plaintiffs asserted that Gordinier had not been specially employed as an expert and, therefore, no such disclosures were required. The defendants argued that Gordinier could not testify as to his expert opinion because the plaintiffs had not filed a written report. The district court agreed with the defendants and allowed Gordinier to testify only about the facts, such as his inspection of the premises, not about his opinion of the source of the bedbug infestation. The court granted a judgment for the defendants based, in part, on their claim that the plaintiffs had not proved that the furniture was infested with bedbugs when it was delivered. The plaintiffs appealed.
ISSUE Should the plaintiff's witness, Gordinier, have been allowed to give his professional opinion regarding the source of the bedbug infestation at trial, despite the plaintiff's failure to submit a written expert-witness report?
DECISION Yes. The United States Court of Appeals for the First Circuit decided that the trial court had abused its discretion by not allowing Gordinier's professional opinion as testimony. The court therefore reversed the district court's judgment and remanded the case for a new trial.
REASON The court reasoned that Rule 26 of the Federal Rules of Civil Procedure requires filing of a written report only for an expert witness who is "retained or specially employed to provide expert testimony in the case." The circumstances of this case indicated that Gordinier was not the type of expert witness that needed to file such a report. "For one thing, there is no evidence that Gordinier was a person who held himself out for hire as a purveyor [supplier] of expert testimony. For another thing, there is no evidence that he was charging a fee for his testimony."
FOR CRITICAL ANALYSIS-Legal Consideration Why can only an expert testify about the source of a bedbug infestation?