CHAPTER 3: COURT PROCEDURES 15
plaintiffs named Gordinier as a witness. Bob’s argued that he could not testify about the source of the bugs because
the plaintiffs did not file a written report setting out his testimony and qualifications as an expert. The plaintiffs
countered that he had not been retained as an expert. The court limited Gordinier’s testimony to the facts—no
opinions—and granted a judgment in Bob’s favor. The Downeys appealed.
In Downey v. Bob’s Discount Furniture Holdings, Inc., the U.S. Court of Appeals for the First Circuit
reversed and remanded for a new trial. Gordinier should have been allowed to offer his opinion. A written report is
If Gordinier were not licensed or experienced, would his testimony be admissible? Possibly, but his
credibility might have less weight, particularly if the basis for his statements, or his articulateness, or his demeanor,
indicated a lack of trustworthiness.
Hearsay is literally what a witness says he or she heard another person say. Suppose Gordinier could
testify only that Downey told him the bugs came from the bedroon set. What makes the admissibility of such
evidence potentially unethical? Hearsay is inadmissible as evidence in a suit when it is offered to prove the truth of
the matter asserted because it has dubious trustworthiness. When a witness repeats what another person has said,
there is a reasonable likelihood that that he or she might misinterpret the statements. There is no opportunity to verify
the accuracy of the statements because the declarant is not present in court to be questioned. These features make
the use of hearsay potentially unethical.
Why can only an expert testify about the source of a bedbug infestation? Only experts can testify about
their opinions or conclusions. Ordinary witnesses are confined to testifying about the facts of a case—that is, what
they personally observed. The reason for this is simple, experts have knowledge or experience beyond that of an
ordinary person, which enables them to make informed opinions about a particular situation. The law seeks to make
sure that the information presented in court—especially in front of a jury—is at least somewhat reliable. In the case
Is it fair to require plaintiffs who hire expert witnesses to pay for and submit written reports that
specify what the experts will say at trial? Why or why not? Yes, it is fair that plaintiffs have to pay for and
produce reports for the experts that they intend to call as witnesses at trial. After all, the rule applies not only to
plaintiffs but also to defendants who intend to have expert witnesses testify on their behalf at trial. It makes sense that
if either plaintiffs or defendants need experts to establish their claims, they should have to pay for and produce
reports of what the experts will say. Because both sides have to pay for and produce written reports specifying what
their experts will say at trial, the rule is fair.