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#21 Filed 05/06/2021
COMMONWEALTH OF MASSACHUSETTS
NANTUCKET, ss. SUPERIOR COURT DEPT.
OF THE TRIAL COURT
C. A. NO. 1975CV00002
JIBO & COMPANY, INC.,
Plaintiff and Defendant-
In-Counterclaim,
vs.
RYAN A. DUDDY
Defendant and
Counterclaimant,
and
ERICA D. DUDDY,
Defendant.
PLAINTIFF’S MOTION IN LIMINE TO EXCLUDE
TESTIMONY OF DEFENDANTS’ EXPERT WITNESS AND
STATEMENT OF REASONS IN SUPPORT
The plaintiff, Jibo & Company, Inc., hereby moves the court for an order excluding
any and all testimony by the defendants’ recently disclosed expert witness, Christopher
Skehel. As grounds for this motion, the plaintiff submits the following.
I Relevant Factual Summary
This action was commenced on January 17, 2019. The Civil Tracking Order issued
on January 17, 2019 stated that “All discovery requests and depositions served and non-
expert depositions completed by November 13, 2019.” The discovery deadline in the Civil
Tracking Order was not affected by the Supreme Judicial Court’s Orders Regarding Court
Operation Under the Exigent Circumstances Created by the COVID-19 (Coronavirus)
Pandemic, which deal with deadlines expiring after March 17, 2020.
On March 29, 2019, the plaintiff propounded a set of interrogatories to the
defendant, Ryan A. Duddy. Interrogatory No. 12, a standard “expert interrogatory”
complying with Rule 26(b)(4)(A) of the Massachusetts Rules of Civil Procedure, asked the
following:
Identify by name, address, telephone number, current employment, area of
expertise each person you expect to call as an expert witness at the trial of
this action and for each such expert witness state the subject matter on which
the expert is expected to testify, the substance of the facts and opinions to
which the expert is expected to testify and a summary of the grounds of each
opinion.
On June 24, 2019, Duddy’s counsel served answers to the plaintiff’s interrogatories.
The answer to Interrogatory No. 12 stated as follows:
Duddy has not yet determined which experts, if any, he intends to call to
testify at trial in this matter. Duddy reserves his right to amend this response
prior to trial and in accordance with any pre-trial orders issued by the court
in this matter.
On June 19, 2020, the court issued a Notice to Appear For Final Pre-Trial
Conference to be held on July 30, 2020. That conference was cancelled on July 16, 2020
and re-scheduled for September 30, 2020. On September 28, 2020, the conference was re-
scheduled again due to the death of defendants’ counsel’s mother and subsequently re-
scheduled for March 10, 2021. On March 9, 2021, the parties agreed upon a Joint Pre-Trial
Memorandum which was filed with the court on March 10, 2021. In Section IX of the
Memorandum, captioned “Defendant/Plaintiff in Counterclaim’s Expert Witnesses” the
indication is “None.”
On April 23, 2021, the court scheduled the trial of this action for May 11, 2021. On
the same day, April 23, 2021, the defendant, Ryan A. Duddy served his “Supplemental
Response to Plaintiff's Interrogatory Number 12” which identifies a one Christopher
Skehel as an expert witness at the trial of this action. The defendant also served
“Defendant’s Amendment to Joint Pre-Trial Memorandum Section IX”, identifying Mr.
Skehel and an outline of his anticipated testimony. He is expected to testify as to central
issues in the action, including the value of the labor and materials furnished by the plaintiff.
IL. Argument
The defendants’ expert witness should be excluded from testifying. The supplement
to the answer to Interrogatory No. 12 was served over 17 months after the discovery
deadline per the Tracking Order. The defendants filed a Joint Pre-Trial Memorandum with
the court on March 10, 2021 indicating that the defendants had no expert witness. Then, on
the eve of trial, the expert and his purported testimony were disclosed.
“The decision to exclude expert testimony rests in the broad discretion of the judge
and will not be disturbed unless the exercise of that discretion constitutes an abuse of
discretion or other error of law.” Palandjian v. Foster, 446 Mass. 100, 104 (2006). In
exercising that discretion, the court should be mindful of Rule 26(e)(1)(B) of the
Massachusetts Rules of Civil Procedure which provides that,
A party is under a duty seasonably to supplement his response with respect
to any question directly addressed to the identity of each person expected to
be called as an expert witness at trial, the subject matter on which he is
expected to testify, and the substance of his testimony.
At no point in the two years since the service of the expert interrogatory did the
defendants supplement their answer. As of March 10, 2021, the defendants indicated in the
pre-trial memorandum they had no expert. “A judge has wide discretion to exclude
testimony of an expert whose identity or subject of testimony was not included ina pretrial
memorandum, or who has not otherwise been timely disclosed to the opposing party prior
to trial.” James v. Amlani, 2014 Mass. App. Unpub. LEXIS 294; 85 Mass.App.Ct. 1105,
citing, Commonwealth v. Chappee, 397 Mass. 508, 517 (1984).
The disclosure on the eve of trial is too late. See, e.g.,; James v. Amlani, supra
(disclosure of expert made seven months after pre-trial memorandum and less than three
weeks prior to trial; testimony excluded). Buckley v. Naranjo, 2012 Mass. App. Unpub.
LEXIS 1248; 83 Mass.App.Ct. 1102 (failure to supplement answers to expert
interrogatories results in exclusion of testimony).
I. Conclusion
Based on the foregoing, the court should issue an order excluding the testimony of
the defendants’ expert witness, Christopher Skehel.
For the plaintiff,
Jibo & Company, Inc.,
By its attorneys,
Law Offices of Warren H. Brodie, P.C.,
By:s/Qarren H Bredie
WARREN H. BRODIE
BBO # 058000
2 Salt Hay Road
Waquoit, MA 02536
(774) 763-2951
Email: wbrodie@whbrodielaw.com
CERTIFICATE OF SERVICE
Thereby certify that a true copy of the above document was served upon all attorneys
of record by mailing copies of same by electronic mail on May 6, 2021 to:
Stephen P. Griffin, Esq.
spg@griffinlaw.com
224 Clarendon Street, Suite 32
Boston, MA 02116
By: s/ Laven A Brodie
WARREN H. BRODIE
BBO # 058000Law Offices of Warren H.
Brodie, P.C.,
2 Salt Hay Road
Waquoit, MA 02536
(774) 763-2951
Email: wbrodie@whbrodielaw.com
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#21 Filed 05/06/2021 COMMONWEALTH OF MASSACHUSETTS NANTUCKET, ss. SUPERIOR COURT DEPT. OF THE TRIAL COURT C. A. NO. 1975CV00002 JIBO & COMPANY, INC., Plaintiff and Defendant- In-Counterclaim, vs. RYAN A. DUDDY Defendant and Counterclaimant, and ERICA D. DUDDY, Defendant. PLAINTIFF’S MOTION IN LIMINE TO EXCLUDE TESTIMONY OF DEFENDANTS’ EXPERT WITNESS AND STATEMENT OF REASONS IN SUPPORT The plaintiff, Jibo & Company, Inc., hereby moves the court for an order excluding any and all testimony by the defendants’ recently disclosed expert witness, Christopher Skehel. As grounds for this motion, the plaintiff submits the following. I Relevant Factual Summary This action was commenced on January 17, 2019. The Civil Tracking Order issued on January 17, 2019 stated that “All discovery requests and depositions served and non- expert depositions completed by November 13, 2019.” The discovery deadline in the Civil Tracking Order was not affected by the Supreme Judicial Court’s Orders Regarding Court Operation Under the Exigent Circumstances Created by the COVID-19 (Coronavirus) Pandemic, which deal with deadlines expiring after March 17, 2020. On March 29, 2019, the plaintiff propounded a set of interrogatories to the defendant, Ryan A. Duddy. Interrogatory No. 12, a standard “expert interrogatory” complying with Rule 26(b)(4)(A) of the Massachusetts Rules of Civil Procedure, asked the following: Identify by name, address, telephone number, current employment, area of expertise each person you expect to call as an expert witness at the trial of this action and for each such expert witness state the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds of each opinion. On June 24, 2019, Duddy’s counsel served answers to the plaintiff’s interrogatories. The answer to Interrogatory No. 12 stated as follows: Duddy has not yet determined which experts, if any, he intends to call to testify at trial in this matter. Duddy reserves his right to amend this response prior to trial and in accordance with any pre-trial orders issued by the court in this matter. On June 19, 2020, the court issued a Notice to Appear For Final Pre-Trial Conference to be held on July 30, 2020. That conference was cancelled on July 16, 2020 and re-scheduled for September 30, 2020. On September 28, 2020, the conference was re- scheduled again due to the death of defendants’ counsel’s mother and subsequently re- scheduled for March 10, 2021. On March 9, 2021, the parties agreed upon a Joint Pre-Trial Memorandum which was filed with the court on March 10, 2021. In Section IX of the Memorandum, captioned “Defendant/Plaintiff in Counterclaim’s Expert Witnesses” the indication is “None.” On April 23, 2021, the court scheduled the trial of this action for May 11, 2021. On the same day, April 23, 2021, the defendant, Ryan A. Duddy served his “Supplemental Response to Plaintiff's Interrogatory Number 12” which identifies a one Christopher Skehel as an expert witness at the trial of this action. The defendant also served “Defendant’s Amendment to Joint Pre-Trial Memorandum Section IX”, identifying Mr. Skehel and an outline of his anticipated testimony. He is expected to testify as to central issues in the action, including the value of the labor and materials furnished by the plaintiff. IL. Argument The defendants’ expert witness should be excluded from testifying. The supplement to the answer to Interrogatory No. 12 was served over 17 months after the discovery deadline per the Tracking Order. The defendants filed a Joint Pre-Trial Memorandum with the court on March 10, 2021 indicating that the defendants had no expert witness. Then, on the eve of trial, the expert and his purported testimony were disclosed. “The decision to exclude expert testimony rests in the broad discretion of the judge and will not be disturbed unless the exercise of that discretion constitutes an abuse of discretion or other error of law.” Palandjian v. Foster, 446 Mass. 100, 104 (2006). In exercising that discretion, the court should be mindful of Rule 26(e)(1)(B) of the Massachusetts Rules of Civil Procedure which provides that, A party is under a duty seasonably to supplement his response with respect to any question directly addressed to the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony. At no point in the two years since the service of the expert interrogatory did the defendants supplement their answer. As of March 10, 2021, the defendants indicated in the pre-trial memorandum they had no expert. “A judge has wide discretion to exclude testimony of an expert whose identity or subject of testimony was not included ina pretrial memorandum, or who has not otherwise been timely disclosed to the opposing party prior to trial.” James v. Amlani, 2014 Mass. App. Unpub. LEXIS 294; 85 Mass.App.Ct. 1105, citing, Commonwealth v. Chappee, 397 Mass. 508, 517 (1984). The disclosure on the eve of trial is too late. See, e.g.,; James v. Amlani, supra (disclosure of expert made seven months after pre-trial memorandum and less than three weeks prior to trial; testimony excluded). Buckley v. Naranjo, 2012 Mass. App. Unpub. LEXIS 1248; 83 Mass.App.Ct. 1102 (failure to supplement answers to expert interrogatories results in exclusion of testimony). I. Conclusion Based on the foregoing, the court should issue an order excluding the testimony of the defendants’ expert witness, Christopher Skehel. For the plaintiff, Jibo & Company, Inc., By its attorneys, Law Offices of Warren H. Brodie, P.C., By:s/Qarren H Bredie WARREN H. BRODIE BBO # 058000 2 Salt Hay Road Waquoit, MA 02536 (774) 763-2951 Email: wbrodie@whbrodielaw.com CERTIFICATE OF SERVICE Thereby certify that a true copy of the above document was served upon all attorneys of record by mailing copies of same by electronic mail on May 6, 2021 to: Stephen P. Griffin, Esq. spg@griffinlaw.com 224 Clarendon Street, Suite 32 Boston, MA 02116 By: s/ Laven A Brodie WARREN H. BRODIE BBO # 058000Law Offices of Warren H. Brodie, P.C., 2 Salt Hay Road Waquoit, MA 02536 (774) 763-2951 Email: wbrodie@whbrodielaw.com