E  V  I  D  E  N  T  I  A  R  Y     A  N  D     D  I  S  C  O  V  E  R  Y      I  S  S  U  E  S  :
To our eye, the Court’s application of Daubert/Lanigan was the most interesting evidentiary decision of the first quarter.

Boston Partners Asset Management, L.P. v. Archambo, 2005 Mass. Super.
LEXIS 102  (January 18, 2005) (Van Gestel, J.).

In the most significant portion of this ruling, the Court examined the admissibility of expert testimony concerning the violation of a non-disparagement agreement. Wayne Archambo (“Archambo”) and Boston Partners Asset Management (“BPAM”) had earlier entered into a settlement agreement, in which each agreed not to disparage the other. BPAM brought suit alleging that Archambo had breached that agreement. Archambo sought to exclude expert opinion regarding damages that BPAM may have suffered.

The Court applied the reliability test first announced in Daubert v. Merrell Dow Chemicals, Inc., 509 U.S. 579, 591 (1993) and later adopted in Massachusetts by Commonwealth v.

Lanigan, 419 Mass. 15, 25 (1994). The Court accepted as sufficiently reliable certain portions of the report and rejected two others.

First, it rejected the portion of the report stating that the specific instances of disparagement discovered by BPAM may just have been the “tip of the iceberg.” “’[T]ip’ of the iceberg is, on its face, pure speculation of a kind not appropriate for either ’expert’ opinion or any other form of testimony.” Id at *12.

Second, the Court rejected testimony concerning the extent to which the alleged disparagement harmed BPAM’s reputation. The Court explained that that section of the report “[utterly lacked] analysis, study or contention of support.” Id. 

Imprimis Investors, LLC v. KPMG Peat Marwick, LLP, 19 Mass. L. Rep. 51, 2005
Mass. Super. LEXIS 63 (February 14, 2005) (Van Gestel, J.).

Defendants moved to strike an affidavit that contradicted the earlier deposition testimony of the affiant. In his deposition, the affiant testified that KPMG did not issue its audit report until after the closing of a certain loan. In his affidavit, he stated that he had sent an unsigned copy of the report and intimated that he had done so before the closing. The Court did not find the affidavit credible and disregarded the conflicting affidavit testimony. “The law in Massachusetts is crystal clear that a party cannot defeat summary judgment

party cannot defeat summary judgment by trying to create a disputed issue of fact through the submission of an affidavit that contradicts statements previously made by the affiant in his deposition." Id. at *5.

In a companion decision, the Court granted the Defendants’ motion for summary judgment where the plaintiff could not prove reasonable reliance on the audit report. Imprimis Investors, LLC v. KPMG Peat Marwick, LLP, 19 Mass. L. Rep. 51, 2005 Mass. Super. LEXIS 63 (February 14, 2005) (Van Gestel, J.).

R.J. Kelly Co. v. Mass. Dep’t of Envtl. Prot., 2005 Mass. Super. LEXIS 146
(March 11, 2005) (Van Gestel, J.).

R.J. Kelly Co. was engaged in a “long running battle” with the Department of Environmental Protection (“DEP”). “In connection with that battle,” it engaged a series of hazardous waste cleanup professionals (“LSPs”). The DEP served Requests for Information on two of the LSPs. R.J. Kelly asserted the attorney-client privilege and work product doctrine to protect information the LSPs had

obtained through their work as consultants for R.J. Kelly’s attorneys. The Court held that the DEP was entitled to documents and information that related to site cleanup activity opinions rendered to the DEP, but that the attorney-client privilege and work product doctrine otherwise protected the work of the LSPs. It ordered the parties to confer to attempt to work out their differences.