530 F.Supp.3d 228
D.P.R.2021Background
- Holsum contracted with Peerless for a PT2 sandwiching machine and with Compass for a Tray Loader (design, manufacture, installation); Compass billed $588,690.40 and Holsum paid $435,673, disputing the balance, alleging the Tray Loader was defective and not fit per the contracts.
- Compass counterclaimed for unpaid contract amounts; summary-judgment on the counterclaim was denied earlier because factual disputes existed about installation and fault.
- Compass moved to (1) have certain facts stipulated into the record, and (2) exclude three of Holsum’s evidentiary items: witness Ernesto Morales Bloise (damages calculations), damages summary documents, and witness Julio Vigoreaux Carreras (argued to be an undisclosed expert).
- Holsum disclosed an initial damages calculation on March 10, 2020 and a revised calculation on July 3, 2020 (the total decreased from $547,738 to $413,613); underlying payroll/timesheet source records were produced.
- The Court noted the stipulations Compass sought and denied all three motions in limine, finding the late disclosures were harmless, the summaries admissible under Rule 1006, and Vigoreaux may testify as a lay witness on matters within his personal knowledge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Compass’s proposed facts should be judicially adopted/stipulated | Holsum agreed to stipulate the listed facts (or contested only certain items); parties resolved many proposed uncontested facts | Compass urged judicial estoppel and formal adoption of facts Compass claimed Holsum refused to admit | Court NOTED Compass’s motion to stipulate and detailed the admitted facts (did not impose estoppel beyond the noted stipulations) |
| Exclusion of Morales Bloise (undisclosed lay witness on damages) | Morales was timely disclosed as a testifying witness more than 30 days before trial; Compass knew of him months earlier via depositions, so any late disclosure is harmless | Compass argued Rule 26/33 disclosure violations and prejudice from surprise | Denied — late disclosure found harmless given prior awareness and discovery timeline; exclusion under Rule 37(c)(1) unwarranted |
| Exclusion of Plaintiff’s damages summaries (and related testimony) | Summaries are based on admissible payroll/timesheet records produced in discovery; revisions were minor and methodology unchanged; summaries aid jury under Rule 1006 | Compass argued it lacked opportunity to cross-examine author of revised calculation and that the summaries were undisclosed under Rule 26 | Denied — underlying records were produced, summaries admissible under Rule 1006, and the revisions were harmless under Rule 37(c)(1) |
| Exclusion of Vigoreaux Carreras as undisclosed expert (or limitation to lay testimony) | Vigoreaux will testify based on his personal, particularized knowledge as Holsum’s executive and supervisor; lay opinion admissible under Rule 701 if based on perception and helpfulness | Compass characterized him as an expert whose opinions required an expert report under Rule 26 and expert testimony standards under Rule 702 | Denied — court ruled Vigoreaux may testify as a lay witness on matters within his personal knowledge; expert designation and report not required unless testimony crosses into specialized expert opinion |
Key Cases Cited
- Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72 (1st Cir. 2009) (preclusion under Rule 37(c) is not automatic; district courts have broad discretion)
- Gagnon v. Teledyne Princeton, Inc., 437 F.3d 188 (1st Cir. 2006) (late disclosure of a witness known to parties can be harmless)
- Macaulay v. Anas, 321 F.3d 45 (1st Cir. 2003) (factors to assess prejudice from late disclosure)
- Laplace–Bayard v. Batlle, 295 F.3d 157 (1st Cir. 2002) (district courts have discretion in Rule 37 sanctions for Rule 26 violations)
- United States v. Appolon, 695 F.3d 44 (1st Cir. 2012) (Rule 1006 summaries admissible when they remove logistical barriers and underlying materials are provided)
- United States v. Milkiewicz, 470 F.3d 390 (1st Cir. 2006) (evidence underlying Rule 1006 summaries need not be introduced to admit the summary)
- Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153 (3d Cir. 1993) (owners/officers may give lay opinion testimony on business value or projected profits based on particularized knowledge)
- Pérez-García v. P.R. Ports Auth., 874 F. Supp. 2d 70 (D.P.R. 2012) (witness competency and requirement of personal knowledge under Rule 602)