The First Circuit Court of Appeals has ordered a new trial in a case against a discount furniture retailer, finding that the trial court erred in excluding the causation testimony of the exterminator whom the plaintiffs consulted when they discovered a bedbug infestation in their home. Downey v. Bob’s Discount Furniture Holdings, Inc., No. 09-2137 (1st Cir., decided January 14, 2011). The plaintiffs had designated the exterminator as a fact and expert witness, but did not produce a written report delineating his anticipated testimony or his qualifications.

The trial court granted the defendant’s motion in limine precluding the exterminator from testifying about the cause of the infestation and did not allow him to testify as to its cause during trial. Without 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 trial court granted the defendant’s motion for judgment as a matter of law.

The appeals court first noted that the plaintiffs had complied with their obligation under Federal Rule of Civil Procedure 26 to disclose the exterminator’s identity. Then the court considered whether this witness had been “retained or specially employed to provide expert testimony in the case.” The proponent of such witnesses must submit to the opposing party a written report detailing the witness’s qualifications and intended testimony.

Distinguishing 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 testimony, the court determined that the exterminator was not retained or specially employed for the purpose of offering expert testimony. Rather, “his opinion testimony arises . . . from his ground-level involvement in the events giving rise to the litigation.” Drawing an analogy to treating physicians and those recruited to render expert opinion testimony, the court said that the exterminator here was like a treating physician and that a written report was not required. Remanding the case for a new trial, the court noted that the question of the exterminator’s qualifications was still open.