determining that municipal water delivery and sale is a service, not a sale of goods
How later courts described this case
- determining that municipal water delivery and sale is a service, not a sale of goods
- affirming exclusion of expert testimony where plaintiff did not provide opportunity to depose expert and where plaintiff, ten days before trial, served answers to interrogatories opening new subject of testimony
- where public water supply was contaminated, it was proper to dismiss claim under the Uniform Commercial Code [UCC] for breach of an implied warranty where the predominant purpose of the defendant’s activity was the provision of services rather than sale of goods, and the UCC does not cover the rendition of services
- "Where a contract is for both sales and services ... in order to determine whether art. 2 is applicable, the test is whether `the predominant factor, thrust, or purpose of the contract is... "the rendition of service, with goods incidentally involved."'"
Written by the judges who cited it.
Distinguished
Distinguished by Bennett v. Milford Water Co., 30 Mass. L. Rptr. 466 (2012)
Mattoon is distinguishable from the present case.
The opinion
Gillerman, J.
(dissenting). The critical event is the judge’s explanation, delivered during the trial, for his having previously allowed, at a pretrial conference, the city’s motion to preclude the testimony of plaintiff’s expert, Serena DiMagno. The judge said that he had allowed the city’s motion because the plaintiffs breached their agreement to permit the city to depose the plaintiffs’ expert “by a claim of unavailability of the expert, unsupported by any affidavit.” The judge added that the “[cjity relied on that agreement in not seeking an extension of the discovery deadline.”
The majority opinion is clear that the plaintiffs did not claim that their expert was “unavailable.” On June 11, 1996, the plaintiffs did claim that their expert could testify only two hours *143 a day in Hershey. Further, the discovery deadline — December 22, 1995, according to the majority opinion — had long since passed when the city agreed to depose the plaintiffs’ expert on May 22, 1996, and later agreed to yet another postponed date of June 3, 1996. There is nothing in the majority opinion to indicate that the city objected to passing the December 22 deadline. That date clearly had been waived by the parties.
The judge himself ignored the December 22 deadline when, on June 3, 1996, he held a status conference with counsel. It was at that conference that the judge made it clear that DiMagno had to be deposed by the city before trial. The majority opinion again makes it clear that there was no mention by the city, or by the judge, that December 22 had passed and that there could be no further discovery.
The judge’s impatience with the performance of plaintiffs’ counsel in the management of the plaintiffs’ case is certainly understandable. But this was no trivial claim. There was substantial evidence that the city’s water was not properly treated or managed. However, the illness that overtook the nearly seventy plaintiffs would come to nothing without an expert to establish the nexus between the city’s water and the illness of the plaintiffs. The importance of testimony from the plaintiffs’ expert witness was surely evident to the parties and to the judge, and the exclusion of that testimony made the unfavorable result to the plaintiffs a foregone conclusion. This was not the case — nor was the judge’s order the time — to collapse the plaintiffs’ claim for reasons that were unsupported.
The plaintiffs were effectively deprived of their day in court on a matter of public importance to their community. I conclude, reluctantly, that the judge’s order suppressing any testimony from the plaintiffs’ expert was an abuse of his discretion, resulting in a miscarriage of justice to the plaintiffs. There should be a new trial.