United States District Court, D. Massachusetts
B. Saris Chief United States District Judge
government moves in limine to admit testimony from
twowitnesses about customs and practices in
the construction industry concerning
"double-breasted" operations and "shop
hours." Docket Nos. 89, 90. The defendants move to
exclude such testimony from the government's witnesses.
Docket No. 97. The government also moves to exclude such
testimony from a witnessfor the defendants. Docket No. 120.
government characterizes their industry custom and practice
witnesses as lay witnesses but suggests that those witnesses
can be certified as experts if necessary. Docket No. 80. The
defendants offer their witness as an expert. Docket No. 105.
After an evidentiary hearing, neither party pressed a request
to certify the witnesses as experts under Federal Rule of
witnesses may only opine on matters within their personal
knowledge that are "not based on scientific, technical,
or other specialized knowledge within the scope of [Federal
Rule of Evidence] 702." Fed.R.Evid. 701(c). A lay
witness may testify based on "particularized knowledge
that the witness has by virtue of his or her position in [a]
business" but not if the testimony crosses over into
specialized knowledge within the realm of an expert.
Fed.R.Evid. 701, advisory committee's note. "[T]he
line between expert testimony under Rule 702 and lay opinion
testimony under Rule 701 is, in practice, not an easy one to
draw." United States v. Valdivia, 680 F.3d 33,
50 (1st Cir. 2012).
extent that the proffered testimony concerns the legality of
double-breasted operations and legal conclusions regarding
the treatment of shop hours in the collective bargaining
agreements at issue, the testimony is inadmissible. Witnesses
may generally not testify on pure questions of law. See,
e.g., Nieves-Villanueva v. Soto-Rivera, 133
F.3d 92, 99 (1st Cir. 1997).
witnesses may express certain opinions about business
operations and industry practices so long as the testimony is
based on personal knowledge. See, e.g., United
States v. Fallon, 470 F.3d 542, 547 (3d Cir. 2006);
Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping
Co., 320 F.3d 1213, 1223 (11th Cir. 2003). Testimony may
be appropriate to the extent that it helps the jury
understand the industry custom and practice concerning
double-breasted operations: their purpose, their prevalence,
and how they tend to be set up and operated. Testimony may
also be appropriate to the extent that it explains industry
custom and practice regarding so-called "shop
hours" or provides extrinsic evidence on the collective
bargaining agreements' coverage of "shop
government offers two witnesses on industry custom and
practice: Barry McAnarney and Thomas Gunning.
McAnarney is the Fund Administrator and Executive Director of
the Massachusetts Laborers Benefit Funds. The bulk of his
proffered testimony concerns his views on when a
double-breasted operation violates the collective bargaining
agreements at issue. That is a pure issue of law that is not
an appropriate subject for testimony. He also does not have a
sufficient basis for knowledge to testify on custom and
practice. He has had limited experience with double-breasted
operations in his eight years in his current position, and it
is not clear what relevant knowledge he has on the subject
from his prior positions. He testified at the evidentiary
hearing that he dealt with four to five double-breasted
operations a year with respect to delinquency investigations.
He would investigate a double-breasted operation if it had a
common pool of labor and common location. However, he showed
minimal knowledge of the custom and practice in the industry
for setting up these operations. The primary sources of his
knowledge of double-breasted operations are delinquency
counsel for the Funds, with whom he discussed how to identify
double-breasted businesses that were operating in violation
of collective bargaining agreements and that may be the
target of a delinquency suit. He also talked to auditors who
conducted investigations into double-breasted operations. He
offers little actual first-hand knowledge about how
double-breasted companies in the construction industry
generally operate. The government has failed to provide
sufficient evidence that there is a reliable foundation for
his custom and practice testimony. He may testify at trial,
however, as a fact witness regarding the Funds'
relationship with the defendants and the Funds'
Gunning is the Executive Director of the Building Trades
Employers Association. He testified at the evidentiary
hearing that he has personal knowledge of double breasted
operations from his twenty-plus years in that position as
well as his position as a trustee of laborers' funds. He
testified that through those experiences, he has only come
across three or four double breasted operations. Based on
that personal knowledge, he may properly testify at trial as
to the prevalence of double breasted operations in the
construction industry. Gunning also testified that he has
personal knowledge as to the custom and practice in the
construction industry of counting "drive hours" as
hours worked under a collective bargaining agreement. That is
also proper testimony at trial.
defendants offer David Tiernan as a witness on industry
custom and practice. David Tiernan is an executive of an
environmental consulting company who has experience working
with asbestos abatement companies and clients who retain
those companies. He testified that he has experience with
construction contract bidding and that through that
experience, he has commonly observed the existence of a union
company and nonunion company operating out of the same
location with similar names, sharing management and laborers.
He may testify at trial as to those observations.
government's motion to admit testimony from John Welsh,
Docket No. 89, is DENIED. The government's motion to
admit testimony, Docket No. 90, is DENIED as to McAnarney and
ALLOWED as to Gunning. The defendants' motion to exclude
the government's testimony, Docket No. 97, is ALLOWED as
to McAnarney and DENIED as to Gunning. The government's
motion to exclude testimony by Tiernan, Docket No. 120, is
 The government initially also named
John Welsh as a custom and practice witness but did not press
him as a witness at ...