BLS Blog

After successfully appealing a judgment and obtaining a remand of its Chapter 93A claim to the Massachusetts BLS, the Governo Law Firm moved to admit expert testimony about a “reasonable royalty” measure of damages. Governo had sued six former nonequity partners whom the law firm alleged had misappropriated proprietary databases and electronic files. Deciding Governo’s motion, Judge Salinger ruled that Governo had waived its right to challenge the admission of the damages testimony because Governo had failed to raise the argument on appeal.

Judge Salinger’s decision turned on the procedural history of the case.

In conjunction with the Massachusetts Bar Association, the current BLS judges prepared personalized responses to practice-related questions. Those questions and answers were then turned into a practice guide, which you can link to here. The guide, presented in question-and-answer format, has a wealth of information on topics of interest to practitioners and clients alike.

Under Massachusetts procedure, a party has the right to compel an opponent to disclose its testifying expert’s opinions through interrogatories. But unlike federal procedure, a party under Massachusetts procedure must obtain leave of court to depose a testifying expert. See Mass. R. Civ. P. 26(b)(4)(A). That relief is warranted, according to Judge Salinger writing in Lubin & Meyer, P.C. v. Manning, only if an expert deposition is “reasonable and necessary.”

As Judge Salinger observed in Lubin & Meyer, a party can typically make that showing where a deposition “is needed to obtain information effectively to cross-examine the expert, and that doing so will likely streamline the presentation of the case at trial.” Or as Judge Salinger wrote (quoting Nelson G. Apjohn, Further Discovery of Expert Witnesses Under Massachusetts Rule of Civil Procedure 26, 88 Mass. L. Rev. 197, 199 (2004)), “‘a court should allow a motion for further discovery under Rule 26(b)(4) if it is satisfied that the moving party’s interest is limited to obtaining the information needed for cross-examination and not designed to build her own case on the work of an opposing party’s expert.’”

Lubin & Meyer, Judge Salinger ruled, failed to make the requisite Rule 26(b)(4)(A) showing.

Judge Salinger first noted that the defendant’s expert “provided a 47-page report that discusses his relevant background and expertise, identifies the case materials he has reviewed, describes his understanding of the case, and explains in detail the opinions and conclusions [he] reached.”

He then rejected the plaintiff’s two arguments in favor of allowing the expert deposition.

First, Plaintiff argues that it should be allowed to ask the witness whether he has opinions that are not disclosed in his report. But there is no need to depose any expert regarding opinions that they have not disclosed. At trial, the expert’s testimony will be limited to what is contained in his expert report.

Second, Plaintiff says it will be challenging the admissibility of this witness’s opinions on the ground that he is not qualified to testify on these topics, the proffered opinions are irrelevant, and the issues addressed in the expert’s report are not the appropriate subject of expert testimony. But Plaintiff does not explain why it needs to depose the witness in order to raise such challenges. The expert’s written report either does or does not establish that he is qualified to testify about the disclosed opinions and conclusions. And Defendant either can or cannot show that those opinions are relevant and the proper subject of expert testimony. There is no apparent need for an expert deposition on any of those gatekeeper issues of admissibility.

Judge Salinger concluded: “In sum, Plaintiff has not shown that deposing Defendant’s expert is reasonable and necessary. The Court will therefore deny the motion.”

The Business Litigation Session of the Massachusetts Superior Court:

Docket Number: 1784CV02352-BLS2

Case Name: LUBIN & MEYER, P.C. V. JOHN J. MANNING

Date of Decision: March 9, 2020

Judge: Kenneth W. Salinger, Justice of the Superior Court