The Court of Appeals for the First Circuit held that the District Court abused its discretion in excluding the proffered testimony of an expert because he had not filed a report. In Downey v. Bob’s Discount Furniture Holdings, Inc. 633 F. 3d 1 (1st Circuit 2011) plaintiff claimed that the defendant sold them bedbug infested furniture causing various injuries to the plaintiffs. An employee of a pest control service who was a licensed and experienced exterminator made an inspection and opined that the furniture was the source of the bedbug infestation.
Plaintiffs initially named the exterminator as a fact witness and subsequently designated him as an expert witness. Plaintiffs did not produce a written report with the details of the experts anticipated testimony, nor did they specify his qualifications. They contended that he had not been retained or specially employed as an expert and therefore no supplemental disclosures were required. The defendant did have a copy of a report of the inspection by the exterminator in which he concluded that the main source of bedbug activity was coming from the room in which the furniture had been placed.
As a sanction for failing to provide the report, the Court excluded the exterminator’s testimony. In reversing the trial courts exclusion of the testimony, the Court agreed with the plaintiffs position that the expert was not retained or specially employed and therefore no report was necessary. The Court pointed out that when “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. (633 F. 3d. at P.7) In so doing, the Court of Appeals equated case law involving an examination by treating physicians to the inspection performed by the exterminator.