First Circuit Overturns Exclusion of Expert Witness

In the case of Robert Esposito v. Home Depot U.S.A, Inc. et. al., the First Circuit overturned the District Court’s discovery sanction of excluding the plaintiff’s expert witness.  Judge Jeffrey R. Howard wrote the opinion for the three judge panel:

Here, the district court was undoubtedly entitled to impose some type of sanction on Esposito. Esposito failed to comply with a court-imposed deadline that he himself had suggested, and he could not offer a legitimate justification for his non-compliance. And despite Esposito’s argument that the appearance of his expert at the inspection of the saw constituted an “informal disclosure,” the rules require formal disclosure for a reason: without it, parties like the defendants in this case may be hindered in their ability to prepare effectively for trial. See Fed. R. Civ. P. 26 (a)(2)(B) (establishing that, “[u]nless otherwise stipulated or ordered by the court,” the formal disclosure of an expert “must be accompanied by a written report” that contains a host of information relevant to the expert’s testimony).

Nevertheless, whether the facts here justified the actual sanction imposed — the preclusion of the expert witness — is a closer question. We start by stating the obvious. The sanction here had serious consequences. Esposito’s need for the expert was so great that the magistrate judge’s decision to preclude the expert, although technically not a dismissal of Esposito’s case, effectively amounted to one. See Primus v. United States, 389 F.3d 231, 234 (1st Cir. 2004). The district court acknowledged as much when it affirmed the magistrate judge’s imposition of the sanction, observing that “Both of the parties acknowledge that the decision to exclude the Plaintiff’s expert as a result of missing the discovery deadlines will, without much doubt, effectively dispose of the case.”

Because all parties acknowledged that the sanction carried the force of a dismissal, the justification for it must be comparatively more robust. Young v. Gordon 330 F.3d 76, 81 (1st Cir. 2003) (“To be sure, dismissal ordinarily should be employed as a sanction only when a plaintiff’s misconduct is extreme.”); Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43, 46 (1st Cir. 2002) (recognizing that dismissal should not be granted “casually”). After considering the other relevant factors described above, we conclude that the circumstances here do not justify such strong medicine.


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