Must an exterminator who was hired to remove bedbugs submit an official expert witness report if his customers later seek to have him testify at trial but their law firm doesn’t retain him as an expert? That was the key issue before the 1st U.S. Circuit Court of Appeals on Nov. 1.

The plaintiffs in Downey v. Bob’s Discount Furniture Holdings Inc. sued the store over bedbugs found in a $697.99 child’s bedroom set they bought from the store. They claim the District of Massachusetts erroneously excluded their former exterminator as a witness. They also claim it erroneously excluded evidence about 36 insect infestation complaints made to the store by other customers. Chief Magistrate Judge Judith Dein issued electronic orders excluding both on July 20, 2009. According to the store’s brief, Dein excluded the testimony of the former exterminator because he failed to submit an expert witness report and lacked enough qualifications to form an opinion on the origins of the bedbugs. That brief also states that Dein excluded the evidence about the other customers “on the basis that the plaintiffs failed to establish substantial similarity” between their claims and those 36 customers’ claims.

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