Downey v. Bob's Discount Furniture Holdings, Inc., 633 F.3d 1

Plaintiffs Downey and Ashley Celester resided in Randolph, MA and experienced a bedbug infestation after purchasing a bedroom set from Bob's Discount Furniture (delivered Dec 29, 2004).
Defendant allegedly caused or failed to prevent the infestation; it refunded the purchase price but did not cover extermination costs.
Plaintiffs asserted negligence, implied warranties, and Massachusetts consumer protection claims; diversity jurisdiction existed under 28 U.S.C. § 1332(a)(1).
Discovery deadline (Nov 14, 2007) required expert disclosures; plaintiffs designated exterminator Gordinier but did not provide a written Rule 26(a)(2)(B) report, asserting he was not an expert.
At a 2008 conference, plaintiffs stated Gordinier would testify on causation; defendant moved to depose him, which led to pretrial in limine motions to exclude his causation opinion and 36 customer complaints.
The district court granted both motions, trial proceeded with Gordinier as a fact witness; causation opinion was excluded; jury later faced sufficiency questions, and the district court entered judgment as a matter of law for defendants.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether exclusion of Gordinier’s causation opinion was erroneous	Downey argued Gordinier was not a retained expert; his causation view arose from on-site treatment, so no 26(a)(2)(B) report needed.	Bob's maintained Gordinier was retained/specially employed for testimony and required a written report under Rule 26(a)(2)(B).	Abuse of discretion; exclusion not warranted under Rule 26(a)(2)(B).
Whether the district court properly admitted or excluded the 36 customer complaints	Complaints show foreseeability and support claims.	No substantial similarity; risk of prejudice; not probative.	Exclusion affirmed; evidence not sufficiently similar or probative.
Whether judgment as a matter of law was proper given the excluded expert	Gordinier’s testimony could have supported causation and duty findings.	Record supported JMOL without the expert.	Judgment as a matter of law reversed; remanded for new trial.

Macaulay v. Anas, 321 F.3d 45 (1st Cir. 2003) (abuse of discretion standard for discovery sanctions)
Gomez v. Rivera Rodríguez, 344 F.3d 103 (1st Cir. 2003) (Rule 26(a)(2)(B) expert disclosure and treating vs retained distinction)
Gay Officers Action League v. Puerto Rico, 247 F.3d 288 (1st Cir. 2001) (interpretation of Rule 26(a)(2)(B) and expert disclosure)
Brandt Distrib. Co. v. Fed. Ins. Co., 247 F.3d 822 (8th Cir. 2001) (distinction between treating physicians and experts retained for trial)
McKinnon v. Skil Corp., 638 F.2d 270 (1st Cir. 1981) (admissibility of prior accidents evidence; similarity requirement)
In re U.S. Dialysis, 446 F.3d 227 (1st Cir. 2006) (evidence relevance and admissibility standards (Maldonado-García))
United States v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993) (evidence rule 403 balancing and probative value)
Heath v. Suzuki Motor Corp., 126 F.3d 1391 (11th Cir. 1997) (similar incidents evidence; need for careful consideration)