The rules governing expert disclosures and default judgments are about to change. Amendments to both the Massachusetts Rules of Civil Procedure and the Superior Court Rules will take effect January 1, 2013.
A new Superior Court Rule 30B requires that the expert disclosure required by Mass. R. Civ. P. 26(b) (4) (A) (i) (“regarding any expert who is retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony and whose testimony is to be presented at trial”), be signed not only by the party but also by the expert. The expert’s signature certifies that “the disclosure accurately states the subject matter(s) on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion to which the expert is expected to testify at trial.”
Rule 55(b)(2) has been amended to provide that, at least 14 days prior to any hearing on a motion for default judgment, the moving party must give notice to all other parties, including any party against whom the judgment by default is sought, of the time and place of the hearing. The notice must include a statement “setting forth the nature and type of all damages requested and the amount of any damages that are a sum certain ….” The prior version of the Rule required only a seven-day notice to defendants who had appeared in the action (not to a defendant who had never appeared and who was the target of the motion for default judgment).
The “all damage” language of the new Rule 55(b)(2) requires the moving party to set forth both unliquidated damages (e.g. pain and suffering damages) and liquidated or sum certain damages.
The amendment to Rule 55(b) (2) is intended to solve a problem created by the Supreme Judicial Court’s decision in Hermanson v. Szafarowicz, 457 Mass. 39 (2010), in which the Court invalidated the first sentence of Rule 54(c), which had provided that a default judgment may not exceed the amount requested in the demand for judgment. The Court found that this provision of Rule 54(c) conflicted with Massachusetts G.L. c. 231, §13B, which prohibits a demand in a complaint for a specific monetary amount, unless the damages are liquidated or ascertainable by calculation. The problem created by Hermanson wasthat a defendant served with a complaint asserting claims for both liquidated and unliquidated damages, and faced with a motion for default judgment, would have no way of knowing how much the plaintiff was seeking in unliquidated damages, making it difficult for the defendant to decide whether it made financial sense to defend or to default. Under the amended Rule, the 14-day notice will inform such a defendant of the amount of unliquidated damages the plaintiff claims.
An amendment to Rule 54(c) alters its language to comply with the Hermanson decision. The amended Rule provides that, where damages sought in the compliant are in a sum certain, default damages may not exceed that amount. Rule 5(a), concerning service, is also amended to require service of the 14 day notice on a defendant who is in default.