Adams v. J. Myers Builders CV-08-425-JL 12/2/09 P UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Tracy Adams and Paul Adams
v. Civil No. 08-CV-425-JL Opinion No. 2009 DNH 181 J. Meyers Builders, Inc.
MEMORANDUM ORDER
Tracy and Paul Adams have sued J. Myers Builders, Inc.
("Myers") for negligently starting a fire that destroyed their
home and its contents. A Myers employee allegedly caused the
fire by improperly disposing of material contaminated with a wood
preservative, which combusted. Each party moves in limine to
preclude certain of the other party's expert witnesses from
testifying at the upcoming jury trial; the Adamses have also
moved in limine to exclude any reference to their property
insurance, which compensated them for some, but not all, of their
losses. This court has subject-matter jurisdiction over this
matter between the Adamses, Maryland citizens, and Myers, a New
Hampshire corporation, under 28 U.S.C. § 1332(a)(1) (diversity).
After oral argument, the court grants the Adamses' motion
to exclude Myers's damages experts and any reference to the
Adamses' property insurance, and denies Myers's motions to
exclude the Adamses' liability and damages experts. Because
Myers failed to provide timely reports from its damages experts as required by Rule 26(a) (2) (B), those witnesses cannot testify
at trial by operation of Rule 37( c ) (1). No report was required
of the Adamses' damaqes expert under Rule 26(a) (2) (B), however,
and their liability expert employed a sufficiently reliable
methodoloqy so as to testify to his conclusions at trial.
Finally, evidence of the Myers's property insurance is
inadmissible under Rule 411 of the Federal Rules of Evidence.
I. Background
The Adamses entered into a written contract with Myers to
build them a custom home in Littleton, New Hampshire, just north
of Franconia Notch in the White Mountains. While Myers was at
work on the house, the Adamses moved into a rental property
nearby. After that property was sold to a third party, requirinq
the Adamses to move out, Myers aqreed to finish one or two rooms
in the Littleton house so that the Adamses could beqin livinq
there, even thouqh construction was still incomplete.
The Adamses moved their furniture and other belonqinqs into
the unfinished home, storinq most of the items in the basement.
At that point, much of the home had been wired for electricity,
includinq outlet boxes, thouqh the sockets had not been
installed. The Adamses took up residence in one of the bedrooms.
2 plugging a lamp into an extension cord that Myers employees had
run from the house's switchboard.
On July 4, 2007, a day or two after the Adamses had moved
in, a Myers employee, William Blay, was at work in a corner of
the basement, preparing cedar shakes for installation on the
exterior of the home. This process involved dipping each shake
by hand into a five-gallon tub of a Sikkens brand wood
preservative, "Cetol SRD," wiping off the excess with a sponge,
and placing the shake into another five-gallon tub to dry. The
shakes were then leaned along the basement wall to rest atop
strips of cardboard and wood laid over plastic sheeting. The
label on the Cetol container warned that "WASTE SOAKED WITH CETOL
SRD MAY SPONTANEOUSLY CATCH FIRE IF IMPROPERLY DISCARDED.
IMMEDIATELY AFTER EACH USE, PLACE . . . WASTE IN A SEALED, WATER-
FILLED METAL CONTAINER." Blay did not read this warning, but
still knew that wood preservative could spontaneously ignite.
Blay has since stated that, when he finished working that
day, he discarded latex gloves and at least one paper towel he
had used in the dipping process--and which were contaminated with
the preservative--into a plastic garbage bag. The parties
dispute whether Blay discarded only the gloves and a single paper
towel that he used to wipe his hands at the day's end, or
additional paper towels, and whether Blay left the garbage bag in
3 the area of the basement where he had been working, or disposed
of it in a trash bin elsewhere on the property.1 Blay has also
testified that a piece of the Adamses' furniture, a box spring,
had been left leaning up against an outlet box in the area of the
basement where he had been working. The Adamses, however,
maintain that there were no electrical outlets or wiring, or even
any electrical tools or appliances, in that area, save for an
overhead light fixture with no bulb in it.
That night, in the bedroom where the Adamses were staying,
Tracy Adams noticed a pungent smell. Later, on Paul Adams's way
to the basement to shut off the lights for the evening, he
encountered "grayish-black" smoke coming up the basement stairs.
As he descended he saw flames and black smoke emanating from the
corner of the basement where Blay had been working. By the time
the Littleton Fire Department had arrived, fire was venting from
all windows and doors in the rear portion of the structure.
Despite the department's efforts, the fire soon engulfed the
whole building, which eventually collapsed. The entire home and
nearly all of its contents were destroyed.
'This dispute arises from inconsistencies between a statement Blay gave to the investigator for the Adamses' insurance carrier and his deposition testimony. Neither party has provided either of those documents to the court, however (Myers submitted a portion of Blay's deposition transcript, but it deals with a different subject).
4 Within the next few days, Timothy Austin, an investigator
retained by the Adamses' property insurer, examined the scene of
the fire and interviewed Blay and the Adamses. Austin, a
certified fire investigator, has worked in that capacity for more
than 20 years, analyzing the cause and origin of approximately
12,000 fires and testifying in a number of cases in state and
federal court. Based on his investigation of the fire at the
Adamses' home, Austin determined that the contaminated materials
Blay placed in the garbage bag in the basement had spontaneously
ignited, with the flames guickly spreading to the cedar shakes he
left drying nearby.2
In support of this finding, Austin relied on the pungent
odor Mrs. Adams had noticed, which he considered "consistent"
with the debris in the garbage bag "heating up and off-gassing
just prior to flaming ignition," as well as Mr. Adams's account
that he had discovered the fire "in the exact location where Mr.
Blay was dipping cedar shake shingles earlier that day." Austin
also ruled out all other imaginable causes of the fire, including
an electrical one (he found no sources of electricity near the
2Ignoring this aspect of Austin's conclusion, Myers complained at oral argument that Austin failed to explain how a fire starting in a garbage bag on the floor could have reached the rafters overhead.
5 fire's origin) and arson, by the Adamses or someone else (he
found no evidence of that, either).
Thus, Austin concluded, Blay had caused the fire by
disposing of materials containing the wood preservative in a
manner contrary to that specified by the warning label. Austin
did not, however, conduct his own test of the potential for the
wood preservative to spontaneously ignite, rejecting that step as
unnecessary in light of the label— which, in his view, reflected
that the manufacturer had already conducted such tests itself.
The Adamses filed a claim with their property insurer,
OneBeacon Insurance Company, seeking more than $1 million in
losses they sustained in the fire, including nearly $440,000 in
lost personal property. Following an analysis by Dean Zwicker, a
OneBeacon employee with 25 years' experience adjusting property
damage claims, OneBeacon paid the Adamses the maximum available
under their policy, which did not entirely cover their loss. The
Adamses then commenced this action against Myers, alleging state-
law claims of negligence and breach of contract. While OneBeacon
is not a party to this action, it enjoys a right of subrogation
to whatever they recover against Myers, up to the amount
OneBeacon paid the Adamses.
In due course, the parties jointly agreed to a scheduling
order, subseguently approved by the court, setting April 13, 2009
6 and June 12, 2009, as the dates for disclosure of the Adamses'
and Myers's expert witnesses and their reports, respectively. On
April 13, counsel for the Adamses sent counsel for Myers a
document entitled "Rule 26 ( a ) (2)(A) Disclosure of Expert
Witness," which identified Zwicker as an "experienced property
claims adjuster" who was "expected to testify concerning the
property damages sustained by [the Adamses] in accordance with
his adjuster's reports," which had been previously provided.
The scheduling order also reguired challenges to expert testimony
to be made at least 45 days prior to trial, which was (and is, no
continuances having been asked or given) set for December 1,
2009. The discovery period closed on August 7, 2009. In an
attempt at a pretrial settlement, the parties also appeared
before a private mediator on July 9, 2009.
About one month prior, on June 4, 2009, counsel for Myers
wrote to counsel for the Adamses, explaining, "In anticipation of
the upcoming mediation, I have had an audit of your damage claims
performed by a forensic accountant, Glenn Ricciardelli . . . . I
do have a preliminary set of schedules from Mr. Ricciardelli's
audit, copies of which are enclosed." Counsel for Myers also
stated that he had "sent the Adamses' testimony and photographs
of the 'antigues' to an appraiser" and that counsel "expect[ed]
that Mr. Ricciardelli will be testifying at trial as will Mr.
7 Buxton"--who, it turns out, was the appraiser in question--should
the mediation prove unsuccessful.
One of schedules enclosed with this letter aggregates the
Adamses' payments to the contractors who built the house and
lists a "salvage value" for certain materials which were not
consumed by the fire, arriving at a value nearly $75,000 less
than what the Adamses claimed. Another schedule represents a
"price test" comparing the vendor's list price for 20 different
items of personal property lost in the fire--out of some 2,363
different items included in the Adamses' insurance claim--to the
value they had claimed, arriving at a "replacement cost ratio
[of] 86.06% of the claim." A third schedule applied this ratio,
as well as a 33.14% depreciation figure, to the Adamses' personal
property claim, and subtracted the outstanding payments to the
contractors and the "salvage value" from the Adamses' real
property claim. Apart from a series of seven brief footnotes at
the bottom of the third schedule, these documents do not
otherwise explain Ricciardelli's calculations.
The next day, Myers's counsel sent another letter to the
Adamses' counsel, enclosing a "report from Bruce A. Buxton,
together with a brochure describing his credentials." In
relevant part, the brochure states that Buxton "has more than 38
years of experience conducting antiques appraisals and auctions throughout the United States" which exceed $50 million in value
annually. The brochure continues:
Mr. Buxton conducts appraisals primarily for the purposes of insurance, estates, and fair market values. His client list also includes museums, historical societies and many private collections. In order to assure the most up to date values, Mr. Buxton's documentation is based on his extensive personal research library, electronic databases and a network of experts highly gualified in their special fields of knowledge.
Buxton's accompanying report describes itself as his
"observations and guestions based on [his] professional judgment
of 39 years and appraisals exceeding $150,000,000 per year." The
report consists of a list of approximately 35 items lost in the
fire, each accompanied by a note guestioning the character or
value of that item as reported by the Adamses. For an item
reported as "Antigue chair ($800)," for example, Buxton notes,
"one in picture appears to be turn of the century, for $800 it
would need to be a Chippendale piece of the period, c.1770." For
other items, Buxton guotes a lower price, sometimes based on
recent sales at auction but in most cases unexplained.
The Adamses did not receive any additional information on
either Ricciardelli or Buxton or their opinions in this matter
until October 30, 2009, when Myers filed its objection to the
Adamses' motion to preclude those witnesses from testifying at
trial due to Myers's failure to provide the expert disclosures required by Rule 26( a ) (2)(B) of the Federal Rules of Civil
Procedure.3 The objection attached Ricciardelli's curriculum
vitae, claiming that it had been "inadvertently omitted" when his
schedules had been forwarded to Adamses's counsel nearly five
months prior, as well as a list of cases in which Riccardelli has
provided expert testimony. As to Buxton, the objection simply
reiterated the summary of his experience that appears in his
brochure, adding that he "had not testified in the past 10 years
and neither [he nor Ricciardelli] has related publications."
II. Analysis
As noted at the outset, each party has moved in limine to
preclude certain of the other's expert witnesses from testifying
at trial: the Adamses seek to exclude any testimony by
Ricciardelli or Buxton, and Myers seeks to exclude any testimony
by Austin or Zwicker. The Adamses also move to preclude any
reference to their property insurance at trial.
30n September 15, 2009, counsel for Myers provided counsel for the Adamses with an "updated" set of schedules from Ricciardelli. This set added a fourth schedule purporting to summarize the values of the claimed antiques and collectibles included in Buxton's report, arriving at a "price test" ratio of 44.01%. In the updated schedules, Ricciardelli applies this reduction to the Adamses's claimed loss of antiques and collectibles, and the 86.06% ratio to the remainder of the Adamses' claimed personal property loss.
10 As explained fully infra, the court agrees with the Adamses
that Myers failed to provide a timely expert report from either
Ricciardelli or Buxton as required by Rule 2 6 ( a ) (2)(B), and that
this failure prevents Myers from calling those witnesses at trial
under Rule 37(c)(1), because it was not substantially justified,
harmless, or deserving of some lesser sanction. But the court
rejects Myers's similar challenge to Zwicker's testimony, because
no Rule 26( a ) (2)(B) report was required of him as a non-retained
expert. The court also rejects Myers's challenge to Austin's
testimony on the ground that it is not based on a reliable
methodology as required by Rule 702 of the Federal Rules of
Evidence. Finally, subject to potential developments at trial.
Rule 411 of the Federal Rules of Evidence (or, if not, the
collateral source rule) prevents Myers from making reference to
the Adamses' property insurance.
A. Ricciardelli and Buxton
The Adamses move to prevent Ricciardelli and Buxton from
testifying at trial because Myers failed to provide expert
reports by them within the deadlines set by the scheduling
order.4 Rule 26(a) (2) requires a party to "disclose the identity
4The Adamses also challenge Ricciardelli and Buxton on the ground that the materials Myers has provided fail to establish their qualifications or bases for their opinions so as to enable
11 of any witness it may use at trial to present evidence under
Federal Rule of Evidence 702," Fed. R. Civ. P. 2 6 ( a ) (2)(A), and,
"if the witness is one retained or specially employed to provide
expert testimony in the case," then the "disclosure must be
accompanied by a written report--prepared and signed by the
witness," Fed. R. Civ. P. 2 6 ( a ) (2)(B). These disclosures must
occur "at the time . . . the court orders," Fed. R. Civ. P.
2 6( a ) (2)(C), which, for Myers's experts, was June 12, 2009.
Under Fed. R. Civ. P. 2 6 ( a ) (2)(B), an expert report must
contain " (i) a complete statement of all opinions the witness
will express and the basis and reasons for them, (ii) the data or
other information considered by the witness in forming them,
(ill) any exhibits that will be used to summarize or support
them, (iv) the witness's gualifications, including a list of all
publications authored in the previous ten years, (v) a list of
all other cases in which, during the previous four years, the
witness testified as an expert at trial or deposition, and (vi) a
statement of the compensation to be paid for the study and
testimony in the case" (formatting altered) .
The materials provided to the Adamses' counsel prior to the
mediation omitted much of this data: they failed to give
them to testify under Rule 702 of the Federal Rules of Evidence. The court does not reach that argument.
12 Ricciardelli's or Buxton's qualifications (apart from the brief
references to Buxton's "38 years of experience" and his "client
list " ) , to list other cases in which they had testified in the
past four years, or to reveal their compensation for their work
on this case. None of this information, in fact, was provided
until Myers filed its objection to the Adamses' motion to exclude
Buxton and Ricciardelli--more than four months after the
applicable deadline--and even that filing does not disclose what
they were paid or, in Buxton's case, any additional detail about
his qualifications. Courts have routinely found would-be expert
reports wanting under Rule 2 6 ( a ) (2)(B) for leaving out the
required information as to the witness's qualifications,
testimony in other cases, or compensation. See, e.g.. Pell v.
E .I . DuPont De Nemours & C o ., 231 F.R.D. 186, 193 (D. Del. 2005);
Rivera Pomales v. Bridgestone Firestone, Inc., 217 F.R.D. 290,
293 (D.P.R. 2003); Dunkin' Donuts Inc. v. Patel, 174 F. Supp. 2d
202, 213 (D.N.J. 2001); Campbell v. McMillin, 83 F. Supp. 2d 761,
765 (S.D. Miss. 2000); Ruhland v. Walter Kidde Portable Equip.,
Inc., 179 F.R.D. 246, 249 (W.D. Wis. 1998).
Moreover, the materials given to the Adamses' counsel about
Ricciardelli and Buxton by the deadline lacked the "complete
statement of all opinions the witness[es] will express and the
basis and reasons for them" and "the data or other information
13 considered by the witness[es] in forming them" as also expressly
required by Rule 26(a)(B)(2). While Ricciardelli explains
certain elements of his calculations--for example, he notes that
he obtained data on the payments to the building contractors from
invoices on file with Myers--he also leaves crucial parts of them
wholly unexplained--!or example, he does not say why he chose
fewer than one percent of the items lost in the fire, nor why he
chose the particular items he did, as the basis for his "price
test" reducing the value of the Adamses' personal property claim
by nearly 15 percent. And Buxton offers simply his "observations
and questions based on his professional judgment," citing to
specific information, such as recent sales at auction, for only a
handful of items. For the vast majority, he just questions the
character of the item as reported by the Adamses and asserts a
lower price without explaining how he came to those conclusions.
Ricciardelli's and Buxton's reports, then, contain neither
the information about the witnesses required by subparts (iv),
(v), and (vi), nor the information about their opinions required
by subparts (i) and (ii), of Rule 26 (a) (B) (2) . See Pell, 231
F.R.D. at 193 (finding an expert report insufficient for failing
to state witness's employment history, publications, other cases
where he had testified, or compensation, or to explain "how or
why he chose [the] numbers" underlying his economic projections).
14 Having failed "to identify a witness as required by Rule 26(a),"
Myers is "not allowed to use that . . . witness . . . at a trial,
unless the failure was substantially justified or is harmless."
Fed. R. Civ. P. 3 7 (c)(1). But "it is the obligation of the party
facing sanctions for belated disclosure to show that its failure
to comply with the Rule was either justified or harmless."
Wilson v. Bradlees of New Eng., Inc., 250 F.3d 10, 21 (1st Cir.
2001). Myers has not carried that burden here.5
Myers's harmlessness argument depends largely on its view
that, prior to the mediation, it disclosed "sufficient
information regarding its experts' opinions so that [the
Adamses'] counsel would be able to explore those opinions before
the end of discovery and the deadline for filing dispositive
motions" such that Myers "complied with the intent of the expert
disclosure rule" (internal quotation marks omitted). The short
answer to this argument is that Rule 2 6 ( a ) (2)(B) itself specifies
what information makes up a "sufficient" expert report and
therefore accomplishes the rule's "intent."
To be sure, courts have occasionally deemed minor deviations
from the requirements of Rule 2 6 ( a ) (2)(B) "harmless" under Rule
37(c) (1), such as the expert's failure to sign the report, when
5Myers has made no substantial justification claim, either in its filings or at oral argument.
15 he later adopted it by affidavit see, e.g., Jenkins v. Bartlett,
487 F .3d 482, 488 (7th Cir. 2007 , or the absence of court names
and docket numbers from the init al list of cases in which the
expert previously testified, whe: . that data was later provided by
supplementation, see, e.g., Zoll nger v. Owens-Brockway Glass
Container, Inc., 233 F. Supp. 2d 349, 356 (N.D.N.Y. 2002). But
the wholesale omission of one or more of the categories of
information demanded by the rule as here, almost inevitably
leads to preclusion. See, e.g., Solid Gold Casino Hotel & Resort
of Tunica v. Miles, No. 02-2863, 2004 WL 5499007, at *3 (W.D.
Tenn. Dec. 14, 2004); Dyett v. 1 . Broward Hosp. Dist., No. 03-
60804, 2004 WL 5320630, at *2 ( .D. Fla. Jan. 21, 2004); Rivera
Pomales, 217 F.R.D. at 293; Ass 1n for Disabled A m s . v. Claypool
Holdings, LLC, No. 00-0344, 200 L WL 1112109, at *12 (S.D. Ind.
Aug. 6, 2001); Ruhland, 17 9 F.R .D. at 250. Myers provides no
authority to the contrary.
These cases are consistent with the guidance from the court
of appeals cautioning that Rule 37( c ) (1) "requires the near
automatic exclusion of Rule 26 Information that is not timely
disclosed," Wilson, 250 F.3d at 20, and describing the
"harmlessness" exception as but a "narrow escape hatch" in the
case of noncompliance with Rule 26 ( a ) (2)(B), Lohnes v. Level 3
Commc'ns, Inc., 272 F.3d 49, 60 (1st Cir. 2001). As the circuit
16 has also recognized, the expert disclosure requirements
"promote[] fairness both in the discovery process and at trial"
by "better preparing attorneys for cross-examination, minimizing
surprise, and supplying a helpful focus for the court's
supervision of the judicial process." Thibeault v. Square D Co.,
960 F.2d 239, 244 (1st Cir. 1992); see also Fed. R. Civ. P.
26(a) (2) advisory committee's note (1993).
These purposes are clearly frustrated by disclosures, like
Myers's, that tell the opposing party nothing about a witness's
qualifications, prior testimony, or compensation, and not enough
about the bases or reasons for his opinions or the data he used
in forming them. See, e.g., Rivera Pomales, 217 F.R.D. at 292-93
(explaining how failing to produce an expert's qualifications
hamstrings an adversary's investigation and preparation of its
case). Moreover, where, as here, these facts are not disclosed
until just one month before trial and after the discovery cutoff
has long since passed, the harm to the opposing party is
manifest. See Lohnes, 272 F.3d at 60 (finding that plaintiff's
failure to disclose his expert until after defendant moved for
summary judgment "deprived [it] of the opportunity to depose the
17 proposed expert, challenge his credentials, solicit expert
opinions of its own, or conduct expert-related discovery").6
Myers nevertheless complains that, not only did its
inadequate expert disclosures fail to prejudice the Adamses, but
the Adamses' "failure to object" to the disclosures prior to
moving in limine to prevent the experts from testifying actually
prejudiced Myers "by not giving [it] the opportunity to correct
any omissions."7 This argument also has a short answer: the
jointly proposed scheduling order, approved by the court, did not
6While Myers is correct that, in Lohnes, the plaintiff failed to disclose even the identity of his would-be expert witness until after the close of discovery, the difference between that case and this case is one of degree, rather than kind. An incomplete expert disclosure is less harmful than no expert disclosure, to be sure, but it is harmful nonetheless and, as just noted, courts routinely prevent expert witnesses from testifying due to incomplete disclosures, not just missing ones.
7Myers also claims "prejudice" from "the informal nature of the [Adamses'] disclosure of Zwicker. As explained infra at Part II.B, however, that disclosure was not subject to the requirements of Rule 26(a)(B)(2), because Zwicker was not "retained or specially employed to provide expert testimony in the case" nor do his "duties as [a] party's employee regularly involve giving expert testimony." At oral argument, Myers complained that the expert report by Austin--who was specially retained to testify in this matter and therefore is subject to Rule 26( a ) (2)(B)--was also inadequate. Because that point was not raised until then (Myers moved to exclude Austin due to his allegedly unacceptable methodology only, see infra Part II.C) this court need not consider it. See Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288, 304 n.19 (D.N.H. 2008). The argument is without merit anyway, as even a cursory comparison of Austin's comprehensive report to the fragmentary materials provided by Ricciardelli and Buxton makes clear.
18 require either party to make its objections to expert testimony
until 45 days before trial, so the Adamses' "failure" to do so
sooner is of no consequence.
Indeed, exclusion of inadequately disclosed expert testimony
under Rule 37(c)(1) "is automatic in the sense that there is no
need for the opposinq party to make a motion . . . to compel a
further disclosure as a predicate for imposition of the
sanction." 8A Charles Alan Wriqht, et a l ., Federal Practice and
Procedure § 2289.1, at 704 (2d ed. 1994) . That the Adamses
waited until the aqreed-upon deadline to point out the
shortcominqs of Myers's expert disclosures, then, has no bearinq
on the harmlessness analysis. Myers provides no authority for
its contrary view, which would effectively shift the
responsibility to ensure adequate expert reports from the party
seekinq to call those experts to its adversary, and has been
rejected by other district courts in this circuit. See Rivera
Pomales, 217 F.R.D. at 293; Piester v. Int'l Bus. Mac h s . Corp.,
929 F. Supp. 595, 599 (D.R.I. 1996).
The court concludes that Myers's failure to provide timely
expert reports by either Ricciardelli or Buxton containinq the
information required by Rule 2 6 ( a ) (2)(B) was neither
substantially justified nor harmless under Rule 37(c) (1) .
Finally, thouqh the rule authorizes other sanctions "instead of"
19 excluding inadequately disclosed witnesses, that sanction, again,
is "near automatic," and the party in violation has the burden to
show that some lesser sanction is appropriate. Wilson, 250 F.3d
at 20-21. Myers has not taken on that burden here, but in any
event none of the other sanctions specifically authorized by Rule
37(c)(1), e.g., ordering the payment of attorneys' fees caused by
the inadequate disclosure, or informing the jury of it, is
appropriate. The Adamses' motion to preclude Ricciardelli and
Buxton from testifying is granted.
B. Zwicker
For its part, Myers moves to prevent one of the Adamses'
expert witnesses, Zwicker, from testifying at trial because they
failed to provide an expert report from him. Rule 2 6 ( a ) (2)(B),
however, demands a report only "if the witness is one retained or
specially employed to present expert testimony in the case or one
whose duties as the party's employee regularly involve giving
expert testimony."8 Zwicker, who adjusted the Adamses' personal
8At oral argument, Myers suggested that Rule 26(a) (B) (2) applies to Zwicker because he is employed by OneBeacon, which is not a party to this action. That Zwicker is not employed by a party, however, does not mean that he was "specially retained to present expert testimony," which is the trigger for the expert report requirement. Employment by a party matters only insofar as it "regularly involve[s] giving expert testimony," which Zwicker's employment does not. And, even if it did, the fact that Zwicker works for a non-party would seem to make this second
20 property claim on behalf of his employer, OneBeacon, fits neither
of those categories, so, under Rule 26(a) (B) (2) (A), no expert
report was required of him; all that was required, under Rule
26(a)(B)(2)(B), was that the Adamses "disclose to the other
parties [Zwicker's] identity" as "a witness [they] may use at
trial to present evidence under Federal Rule of Evidence 702."
The Adamses did that, by the applicable deadline, when they
provided Myers with their "Rule 2 6 ( a ) (2)(A) Disclosure of Expert
Witness," described in Part I, supra.
As this court has observed, "'[w]hile all experts must be
disclosed under Rule 26( a ) (2)(A), only "retained" experts must
provide Rule 26( a ) (2)(B) reports.'" Aumand v. Dartmouth
Hitchcock Med. Ctr., 611 F. Supp. 2d 78, 88 (D.N.H. 2009)
(quoting Sprague v. Liberty M u t . Ins. Co., 177 F.R.D. 78, 81
(D.N.H. 1998)); see also, e.g., 8 Wright, supra, § 2031.1, at 441
n.6 (quoting Fed. R. Civ. P. 2 6 ( a ) (2) advisory committee's note
(1993)) & 2009 supp. at 228-29 ("as to nonretained expert
witnesses, the obligation to identify such persons as witnesses
who will be presenting expert testimony under Rule 2 6 ( a ) (2)(A)
applies although there is no corresponding report requirement"
(emphasis added; footnote omitted)). This proposition is
trigger for an expert report--a witness "whose duties as the party's employee regularly involve giving expert testimony"-- inapplicable here, not the other way around.
21 apparent from the language of the rule itself and not at all
controversial.9 Because the Adamses complied with the only
expert disclosure reguirement applicable to Zwicker, Myers's
motion to exclude him on that basis is denied.10
C. Austin
Myers also moves to prevent another of the Adamses' expert
witnesses, Austin, from appearing at trial, arguing that his
testimony does not meet one of the reguirements under Rule 702 of
the Federal Rules of Evidence. That rule provides that:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness gualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and
9A guestion often arises as to whether percipient witnesses who happen to be experts--usually a plaintiff's treating physicians in a case involving personal injury--are subject to even the expert disclosure reguirement of Rule 2 6 ( a ) (2)(A) because their personal knowledge of the events at issue includes their expert opinions. See, e.g., Aumand, 611 F. Supp. 2d at 88 & n.8. But that guestion is not implicated here: the Adamses admittedly plan to have Zwicker offer expert testimony and, as a result, the disclosure reguirement of Rule 26(a) (2) (A) applies. The report reguirement of Rule 26(a) (2) (B) , though, does not.
10Of course, the fact that Zwicker was not reguired to submit a report stating the bases and reasons for his conclusions and the like does not relieve the Adamses of their burden to elicit that information at trial in gualifying him to give expert testimony under Rule 702.
22 (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed. R. Evid. 702. As the structure of this rule suggests,
before the factfinder in a case can consider expert testimony
over the adverse party's objection, the trial judge, serving as
"gatekeeper," must determine whether the testimony satisfies the
relevant foundational reguirements. See Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 597 (1993).
Here, the only foundational reguirement which Myers
guestions is whether Austin's opinion--that the fire was caused
by the spontaneous ignition of material, contaminated with the
wood preservative, that Blay improperly placed in a garbage bag
in the basement--is "the product of reliable principles and
methods."11 Austin explains that he conducted his investigation
according to the National Fire Protection Association's Guide for
“ While Myers does not explicitly challenge the "facts and data" underlying Austin's opinion, its motion and presentation at oral argument raised some of the disputes noted in Part I, supra, e.g., how much contaminated material Blay placed in the bag, and whether Blay in fact left the bag in the basement. Austin's report indicates, however, that he based his findings as to Blay's actions on a recorded statement he gave Austin in the days following the fire. As mentioned supra at note 1, that statement has not been provided to the court, so it has no basis for guestioning the accuracy of Austin's account of what Blay told him, even if Blay did in fact give a different account in his deposition. In any event, "[w]hen the factual underpinning of an expert opinion is weak, it is a matter affecting the weight and credibility of the testimony," rather than its admissibility. Newell P.R., Ltd. v. Rubbermaid, Inc., 20 F.3d 15, 20 (1st Cir. 1994) (internal guotation marks omitted).
23 Fire and Explosion Investigations, known as NFPA 921. Myers does
not question that NFPA 921 represents a reliable methodology for
investigating the cause of fires, but argues that Austin strayed
from it by failing to conduct any experimental testing of his
spontaneous ignition hypothesis.
As the Adamses point out, however, NFPA 921 specifically
states--in Chapter 4.3.6--that once the investigator develops a
hypothesis, it is tested "by the principle of deductive
reasoning, in which the investigator compares his or her
hypothesis to all known facts. This testing of the hypothesis
may be either cognitive or experimental" (internal cross-
reference omitted; emphasis added). Consistent with this
language, courts have ruled that NFPA 921 does not, in fact,
require experimental testing of a fire investigator's hypothesis
as to cause, and have rejected challenges to opinion testimony
based on an expert's failure to do so. See Shuck v. CNH Am.,
LLC, 498 F.3d 868, 875 n.3 (8th Cir. 2007) (clarifying that NFPA
921 provides no "bright-line rule that expert opinions in fire
cases always must be supported by testing to be admissible"); see
also Westfield Ins. Co. v. J.C. Penney Corp., 466 F. Supp. 2d
1086, 1094 (W.D. Wis. 2006) (rejecting challenge to fire
investigator's opinion testimony based on his failure to perform
tests). Myers provides no authority to the contrary, in the form
24 of either judicial decisions interpreting NFPA 921 or an opinion
from another expert that experimental testing is reguired by NFPA
921 or any other reliable methodology of fire investigation.
Furthermore, Austin explains (in an affidavit submitted with
the Adamses' objection to Myers's motion to exclude him) that
testing "the potential for the Sikkens sealer/stain product to
spontaneously ignite" was unnecessary "since the manufacturer
already conducted those tests" in deciding to place a label on
the product warning of that very danger. Austin's "failure" to
conduct experimental testing of his spontaneous ignition
hypothesis, then, did not render his methodology unreliable under
Rule 702 so as to reguire the exclusion of his opinion.
Myers also attacks Austin's opinion because "he contends
that he considered and ruled out other possible sources of
ignition, including electrical ignition--for which there is as
much evidence as spontaneous combustion--without doing any
testing or even specific investigation." As an initial matter,
though, Myers does not identify the "evidence" for electrical
ignition, apart from Blay's claim at his deposition that a box
spring had been left lying against an outlet cover in the
basement. Assuming, dubitante, that this scenario creates any
risk of fire (Myers presents no evidence to that effect, and the
court has difficulty with the notion that a piece of furniture in
25 contact with an outlet box can somehow catch fire), the Adamses
dispute that the scenario existed, at least anywhere near the
fire's origin, and Austin was certainly not obligated to accept
Blay's account in forming his opinions, given the evidence to the
contrary. See also note 10, supra. Nor, as just explained, was
Austin reguired to perform tests in order to eliminate other
imaginable causes of the fire.
Moreover, Austin states in his affidavit that he ruled out
"every possible cause of the fire" aside from spontaneous
ignition of the sealant, including an electrical one, because
there were no electrical outlets, wiring, tools, appliances, or
devices in the area of the fire's origin.12 That sufficiently
explains Austin's conclusion so as to make it admissible at trial
under Rule 702 and Daubert. See Westfield, 466 F. Supp. 2d at
1094 ("one of the proper ways for an expert to identify the
source of a fire is by eliminating other potential sources").
Myers's motion to exclude Austin's testimony is denied.
12While Austin's report did not contain this specific explanation, Myers's motion did not seek to exclude his testimony based on deficiencies in his report, but deficiencies in his methodology. See note 5, supra.
26 D. Evidence of the Adamses' property insurance
Finally, the Adamses move to prevent Myers "from introducing
or eliciting testimony or evidence concerning [their] insurance
coverage," arguing that it is both irrelevant under Rule 401 and
unduly prejudicial under Rule 403 of the Federal Rules of
Evidence. Myers, in response, argues that the Adamses' property
insurer "is the major party in interest" in this case by virtue
of its subrogated right to any recovery up to what it paid the
Adamses. Myers also argues that Zwicker, whom the Adamses intend
to call to testify as to the amount of their loss, valued that
loss in his capacity as an adjuster for their property insurer.
Myers's first argument is incorrect. The property insurer,
OneBeacon, has not been named as a party to this action and, as
the Adamses point out, need not have been. Under federal law,
which controls the guestion of who is the real party in interest
here, "if the insured is only partially compensated by the
insurer, both the insurer and the insured are real parties-in-
interest" in an action against the party allegedly responsible
for the loss and, as a result, either the insurer or the insured
(or both) may serve as the plaintiff. Brocklesby Transp. v. E.
States Escort Servs., 904 F.2d 131, 133 (2d Cir. 1990) (citing
United States v. Aetna C a s . & Sur. Co., 338 U.S. 366, 380-82
(1949)); see also, e.g., 20 Wright, supra, § 75, at 665.
27 While some (but not all) courts nevertheless allow a
defendant to compel joinder of the insurer under these
circumstances, see 20 Wright, supra, § 75, at 655 & n.14, Myers
has not moved to do so, but only mentioned this issue in its
objection to the Adamses' motion in limine, c f . L.R. 7.1(a)(1)
("Objections to pending motions and affirmative motions for
relief shall not be combined in one filing."). In any event, it
would be too late, because the scheduling order set January 19,
2009 as the deadline for joinder of additional parties, and trial
is imminent. See Cabrera v. Municip. of Bayamon, 622 F.2d 4, 6
(1st Cir. 1980) (noting court's "discretion to refuse an attempt
to join a new party at [a] late stage of the litigation") .
Myers's second point, however, is well-taken. Under the
Federal Rules, "[e]vidence that a person was or was not insured
against liability is not admissible upon the issue of whether the
person acted negligently or otherwise wrongfully," but the rule,
by its terms, "does not reguire the exclusion of evidence of
insurance against liability when offered for another purpose,
such as . . . bias or prejudice of a witness." Fed. R. Evid.
411. So the fact that OneBeacon paid the Adamses for part of
their loss--and stands to recover that payment through any award
made in this case--can be used to show the bias or prejudice of
Zwicker, who works for OneBeacon, in testifying to the amount of
28 that loss. See Conde v. Starlight I, Inc., 103 F.3d 210, 214
(1st Cir. 1997) (upholding references to witness as an "adjuster"
over a Rule 411 objection where his credibility was at issue due
to his employment by the defendant's liability insurer).
Implicitly conceding this point, the Adamses say, in reply
to Myers's objection, that they no longer intend to call Zwicker
as a witness, except in rebuttal to any testimony as to the value
of their loss given by Ricciardelli or Buxton. Given this
court's ruling that those witnesses cannot testify, see Part
II.A, supra, Zwicker will not be testifying either, closing off
the only possible avenue Myers has identified for admitting
evidence of the Adamses' insurance coverage at trial.13 That
evidence is inadmissible under Rule 411,14 and the Adamses's
13The court notes that OneBeacon also hired Austin, so the company's interest in the outcome could potentially be used to show his bias or prejudice, but Myers has not made that argument.
14It could be argued that Rule 411 does not apply, either because the Adamses were insured not against "liability," but casualty, or because evidence of their coverage would not be used to show they acted "negligently or otherwise wrongfully" (though that begs the guestion of how that evidence would in fact be used). But a leading evidence treatise takes the view that evidence of insurance is inadmissible under Rule 411 even "when used against a plaintiff, since it suggests that he or she has already been compensated, and either that the plaintiff is seeking a double recovery or that the real party in interest is the subrogated insurer"--which, as just discussed, appears to be Myers's only reason for wanting to introduce that evidence here. 2 Weinstein's Federal Evidence § 411.03[3], at 411-9--4-11-10 (Joseph B. McLaughlin, ed., 2d ed. 1997) . Even if Rule 411 did not apply, moreover, evidence of the Adamses' property insurance
29 motion to exclude it is granted, subject to potential
developments at trial. C f . Fitzgerald, 177 F.3d at 73 (upholding
ruling that plaintiff opened the door to evidence of health
insurance by testifying that medical expenses occasioned by the
injury had exerted a financial strain).
Ill. Conclusion
For the foregoing reasons, the Adamses' motions to preclude
testimony by Ricciardelli and Buxton15 and evidence of their
property insurance16 are GRANTED and Myers's motions to preclude
testimony by Zwicker17 and Austin18 are DENIED.
would still be inadmissible under New Hampshire's collateral source rule, for much the same reason. As this court has recognized, evidence that a plaintiff has insurance coverage for his complained-of injuries causes an unacceptable risk that the jury "'may be unduly inclined to return either a defendant's verdict or an artificially low damage award.'" Aumand, 611 F. Supp. 2d at 92 (guoting Fitzgerald v. Expressway Sewerage Constr., Inc., 177 F.3d 71, 73 (1st Cir. 1999)).
15Document no. 17.
16Document no. 26.
17Document no. 19.
18Document no. 18.
30 SO ORDERED.
Joseph N. Laplante Ur^ted States District Judge
Dated: December 2 , 2009
cc: John P. Sherman, Esq. William E. Gericke, Esq Andrew D. Dunn, Esq.