# Fourth Street Pub, Inc. v. National Union Fire Insurance

> Massachusetts Appeals Court · December 21, 1989 · 28 Mass. App. Ct. 157

URL: https://www.frixlaw.com/law-library/cases/6458586

## Case

- **Full name:** Fourth Street Pub, Inc. v. National Union Fire Insurance Company
- **Court:** Massachusetts Appeals Court
- **Decided:** December 21, 1989
- **Citations:** 28 Mass. App. Ct. 157; 547 N.E.2d 935; 1989 Mass. App. LEXIS 720
- **Precedential status:** Published
- **Opinion:** Dissent by Kass
- **Judges:** Fine, Kass
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6458586

## Opinion text

Kass, J.
(dissenting). As a general rule, the imperfections exposed in the testimony of an expert witness go merely to the weight to be ascribed by the jury to the expert’s evidence. Southwick v. Massachusetts Turnpike Authy., 339 Mass. 666, 670-671 (1959). Haven v. Brimfield, 345 Mass. 529, 531 (1963). That is the not inconsiderable basis on which the majority opinion rests. On the other hand, it is also a familiar principle that testimony may not rest wholly on conjecture, and that is no less the case when the conjecture flows from the mouth of an expert. Nass v. Duxbury, 327 Mass. 396, 401 (1951). Currie v. Lee Equip. Corp., 362 Mass. 765, 768 (1973). Swartz v. General Motors Corp., 375 Mass. 628, 633 (1978). LaClair v. Silberline Mfg. Co., 379 Mass. 21, 32 (1979). See Reed v. Canada Dry Corp., 5 Mass. App. Ct. 164, 166 (1977). Qualification as an expert does not confer a license to spout nonsense.
On cross-examination, the opinion of James B. Smith, the expert witness in question, was revealed as founded on no theory about the origin of the fire and on an investigation that was singular for the degree to which it avoided the more obvious sources of information. In the circumstances, the trial judge might understandably come to the conclusion that Smith’s, opinion had been what trial lawyers call “carpentered.” Smith said the fire originated in the space between the dropped ceiling and the structural ceiling above. What would have caused a fire to start there he did not venture to say except to suggest obliquely that it might have been electrical wiring. Yet he had not examined the circuits, the circuit breaker board, or talked to an electrician. As the judge also observed, Smith had not tested for gasoline on the rug, a likely subject of inquiry considering that the use of gasoline as an accelerant had been asserted by the insurance company.
Battles of experts at trials are justly the subject of cynicism but as long as expert testimony is founded on a combination of theory and observed facts there is not much help for it, and we trust to the common sense of juries. The placement of such trust, however, does not require us to presume *166 upon it. If, as the cases instruct, expert testimony may be excluded if it rests on speculation, then surely it may be struck when cross-examination demonstrates such to be the case. I understand that the line between testimony based on speculation and that which is merely vulnerable to attack is often indistinct. Precisely in such a situation I would be prepared to rely on the training and experience of the trial judge and would tolerate discretion in making the call. I do not think such discretion was abused in this case, and I would affirm the judgment.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6458586. Public record. Not legal advice.