In The News

News - 2021

May. 2021

Ben Wish assesses court decision in negligence case involving fire-damaged commercial building

Benjamin Wish in a news article assessed the significance of a Massachusetts federal court decision denying summary judgment in a negligence lawsuit seeking damages resulting from a commercial building fire.

The U.S. District Court judge rejected the defendant’s claim that the opinion of the plaintiff’s expert witness on the cause of the fire was based purely on speculation and conjecture and therefore lacked credibility.  The plaintiff, an insurer of a wine bar tenant in the building, alleges that the defendant, who operated an art gallery on the second floor, negligently caused the fire through careless smoking.

The judge held that the expert’s opinion satisfied the standard for scientific reliability and the case should proceed to trial.

Mr. Wish, a partner at the firm, told Massachusetts Lawyers Weekly that the court’s role as gatekeeper on expert witnesses “isn’t about slamming the door on experts that you don’t like or that one party claims may not be particularly reliable.  It’s making sure that you keep out any [expert] with nothing reliable to add.”

He added that the judge’s ruling “crystalizes” that to prevail on summary judgment a party must show that an expert has no evidentiary basis for an opinion.

The judge found that an expert opinion in the absence of direct evidence can be based on circumstantial evidence and inference – including on the cause of a fire.

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