In Esposito v Home Depot U.S.A., Inc., 590 F.3d 72 (1st Cir. 2009), an individual whose fingers were severed by a power saw sued the saw’s manufacturer, packager and retailer in Rhode Island state court alleging the saw was defectively designed. The manufacturer and packager removed the case to the United States District Court for the District of Rhode Island and the retailer shortly thereafter filed an answer. Plaintiff moved to remand based on the retailer’s failure to consent to the notice of removal, and all three defendents opposed the motion, but the trial court denied the motion on the ground that, under the circumstances, the retailer’s answer constituted consent. Subsequently in the litigation, plaintiff failed to disclose his expert engineer by the court-ordered deadline and—six weeks after the deadline had passed— moved to extend the deadline by 90 days. The trial court denied the motion, thereby precluding plaintiff’s expert from testifying, and then granted defendants’ motion for summary judgment premised on plaintiff’s lack of an expert. Plaintiff appealed to the United States Court of Appeals for the First Circuit.

On the removal issue, the court first observed that although the “rule of unanimity” requires all defendants to consent to removal of most multi-defendant cases, courts are divided about how a defendant may express its consent. The court further noted that a defendant’s failure to consent to removal is not a jurisdictional defect and therefore may be cured or waived. Declining to establish a “wooden rule,” the court instead held that any procedural defect in the removal was cured when the retailer opposed plaintiff’s motion to remand, if not when the retailer filed its answer. The court stated that, in this case—where the parties had already extensively litigated the case in federal court—to conclude that the retailer’s failure to consent now required remand “would place form before function.”

Turning to the sanction issue, the court acknowledged that Fed. R. Civ. P. 37(c)(1) permits the trial court to sanction a party for failing to timely disclose an expert, including by excluding the expert’s testimony. The court also articulated the factors relevant to its review of the trial court’s sanction decision, and noted that it may reverse only for abuse of discretion. Here, however—where denying plaintiff’s motion to extend the expert deadline effectively disposed of plaintiff’s case, because it left him without an expert to support his design defect theory—the court construed the sanction levied by the trial court as one that carried the force of a dismissal and stated that, for that reason, “the justification for [the sanction] must be comparatively more robust.”

The court acknowledged that plaintiff never offered a legitimate reason for his late disclosure, and had prejudiced defendants by causing them to prepare a summary judgment motion premised on the expert’s exclusion. The court also noted, however, that plaintiff had neither previously failed to comply with court-ordered deadlines, nor ignored warnings from the district court, nor—by all appearances—ignored the expert deadline for reasons of gamesmanship. The court accordingly concluded that the trial court had abused its discretion by imposing “a fatal sanction” for “a single oversight.”

One judge on the panel, a district court judge sitting by designation, dissented from the majority’s decision on the sanction issue, arguing that the majority improperly applied the higher standard for levying a sanction of dismissal, rather than the lower Rule 37(c)(1) standard for levying a sanction of witness preclusion.