Downey v. Bob's Discount Furniture Holdings, Inc., 09-2137 - U.S. First Circuit
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Downey v. Bob's Discount Furniture Holdings, Inc., 09-2137

Action against a furniture store for selling bedbug infested mattress

Downey v. Bob's Discount Furniture Holdings, Inc., 09-2137, concerned a challenge to the district court's exclusion of plaintiffs' expert testimony as a sanction for failure to comply with the disclosure requirements of Federal Rule of Civil Procedure 26(a)(2)(B), in plaintiffs' suit against a furniture store asserting claims for negligence, breach of implied warranties of fitness for a particular purpose and merchantability, and violations of a Massachusetts consumer protection law, for selling to plaintiffs a bedbug infested mattress.


In reversing the judgment, the court held that the district court abused its discretion in excluding the proffered testimony because the expert in question was not an expert specially retained or employed for the purpose of testifying.  The court rejected plaintiffs' challenge to the district court's exclusion of a compendium of thirty-six customer complaints lodged with the defendant between 2004 and 2006 as, the plaintiffs never marked for introduction, or otherwise placed in the record, the list of complaints.  Lastly, the court held that the evidence of record, together with the excluded testimony, could lead a jury reasonably to conclude that the defendant violated its duty of care and this evidence could plausibly permit the jury to find in favor of the plaintiffs on their claims for violation of Massachusetts consumer protection law and for breach of warranty.

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