Bob's vs. the bedbugs

A federal appeals court says a Randolph mother is entitled to try to convince a judge or jury that Bob's Discount Furniture was responsible for a bedbug infestation that caused her and her daughter "lasting health problems, emotional distress and economic loss."

Although Bob's refunded Yvette Downey's money and took the allegedly infested bed back in 2005 - in the same truck it used to deliver furniture to other customers - Downey sued after Bob's refused to pay for an exterminator to eliminate the little biters from her house.

A federal judge wouldn't let the exterminator Downey hired testify as an expert and offer his opinion that the infestation started in the child's bed Downey had bought from Bob's and then spread throughout the house, because Downey had failed to fill out the necessary paperwork for having an expert testify at a trial.

Had he been allowed to offer his expert opinion, the exterminator would have discussed the likelihood the bugs came from Bob's because their concentration was heaviest in the daughter's bedframe and because of his knowledge that bedbugs can lie dormant for months. But without his opinion, the judge ruled, Downey failed to prove her case that Bob's was responsible for the problem.

The US Court of Appeals for the First Circuit, however, said the paperwork requirements only apply to hired-gun experts paid to relate their opinions on evidence and that they didn't apply to the exterminator because he was not being paid for his testimony and because his opinion arose out of his original bug-killing work for Downey. That, the appeals judges concluded, made him more comparable to a doctor asked to testify about a procedure he performed on a patient.

In this instance, the district court reached its conclusion about causation without the benefit of [the exterminator]'s excluded opinion testimony. Had that testimony been admitted, a rational jury obviously could have drawn an inference of causation. After all, [he] would have opined that the likely source of the bedbug infestation was the bedroom set purchased from and delivered by the defendant. This opinion evidence, coupled with evidence that the defendant had no written policy regarding the prevention of bedbugs and that it used the same trucks for both delivering new furniture and retrieving used furniture, is sufficient to support a conclusion that the defendant delivered bedbugs along with the bedroom set.

• Complete ruling

A doff of the pesticide can to Massachusetts Lawyers Weekly.