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Johnson v. The Capital Offset Company, Inc.

United States District Court, First Circuit

September 25, 2013

Alford Johnson, as Trustee of the Martha Wood Trust,
The Capital Offset Company, Inc., Jay Stewart, Stephen Stinehour, and Acme Bookbinding Company, Inc. No. 2013 DNH 126.


JOSEPH A. DiCLERICO, Jr., District Judge.

Alford Johnson, as the trustee of the Martha Wood Trust, brought suit against The Capital Offset Company, Inc.; its president, Jay Stewart; a consultant who later worked for Capital Offset, Stephen Stinehour; and Acme Bookbinding Company, alleging claims arising from the publication of a photography book, Spiritual Passports.[1] Capital Offset and Stewart move for summary judgment on five of the claims Johnson brings against them, Counts IV, V, VI, VII, and IX, but do not move for summary judgment on the breach of contract and breach of the covenant of good faith and fair dealing claims against Capital Offset, Counts I and II.[2] Johnson objects to summary judgment.

Expert Opinion

In his objection, Johnson relies in part on the opinions of his expert witness, Donald Mazzella, about defects in printing and binding Spiritual Passports. Capital Offset and Stewart challenge Mazzella's qualifications to express the opinion that all of the books will fail because of the absence of a glue trap.[3] In support, Capital Offset and Stewart point to Mazzella's deposition testimony that his recent experience has been primarily in internet and periodical publishing, that he has not had experience with art books that required a glue trap, and that Mazzella does not consider himself an expert in bookbinding.

Federal Rule of Evidence 702 provides that "[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion" if the testimony will assist the trier of fact, has a sufficient factual basis, and is reliable. Fed.R.Evid. 702. "The proponent of the evidence bears the burden of demonstrating its admissibility." United States v. Tetioukhine, ___ F.3d ___, 2013 WL 3836263, at *4 (1st Cir. July 26, 2013).

Johnson did not respond for purposes of this motion to the challenge to Mazzella's opinion. In response to a similar challenge in the context of Acme's motion for summary judgment, Johnson cited Mazzella's later deposition testimony where he stated that he had sufficient experience in the publishing industry to know whether a book was properly bound. With respect to Spiritual Passports specifically, Mazzella stated that he had shown the book to people at a "print expo" in Chicago and that they said "the same thing, " apparently meaning that the book was not properly bound. Mazzella further testified that although he lacked expertise in binding, his experience was sufficient to support an opinion about the adequacy of the binding.

As the court concluded for purposes of Acme's motion for summary judgment, Johnson has not demonstrated here that Mazzella has the scientific, technical, or specialized knowledge that would allow him to give opinions about the methods and technical processes of bookbinding. Specifically, Johnson has not shown that Mazzella has sufficient knowledge about the use of glue traps in art books to give the opinion that all of the bindings on all of the copies of Spiritual Passports will fail because the books lack glue traps. Therefore, for purposes of this motion for summary judgment, the court will not consider Mazzella's opinion about the effect of a lack of glue traps.[4]

Standard of Review

Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "On issues where the movant does not have the burden of proof at trial, the movant can succeed on summary judgment by showing that there is an absence of evidence to support the nonmoving party's case.'" OneBeacon Am. Inc. Co. v. Commercial Union Assurance Co. of Canada , 684 F.3d 237, 241 (1st Cir. 2012) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986)).

In deciding a motion for summary judgment, the court draws "all reasonable inferences in favor of the non-moving party while ignoring conclusory allegations, improbable inferences, and unsupported speculation." Pruco Life Ins. Co. v. Wilmington Tr. Co., 721 F.3d 1, 6-7 (1st Cir. 2013) (internal quotation marks omitted). "A genuine issue is one that can be resolved in favor of either party, and a material fact is one which has the potential of affecting the outcome of the case." Jakobiec v. Merrill Lynch Life Ins. Co. , 711 F.3d 217, 223 (1st Cir. 2013).


Johnson hired Capital Offset in January of 2009 to produce a book of photographs, Spiritual Passports. Johnson states in his deposition that he, assisted by his design director, Susan Cox, and her associate, Frank Biancalana, chose Capital Offset based on the recommendations of Steven Stinehour. Johnson then approved Capital Offset's decision to hire Acme to bind the book.

After some problems were discovered and addressed during initial runs of the book, the book was printed, bound, and sent to the University of Texas Press for publication. A number of the books have since been found to be defective.

Capital Offset and Stewart assert that Johnson admits "that Capital Offset is qualified to print a book of this nature and that Acme Bookbinding is qualified to bind a book of this nature." In support, they cite Johnson's responses to their requests for admissions. Johnson, however, denied the cited requests for admissions. In his objection, Johnson also denied that Capital Offset and Acme were qualified to print and bind Spiritual Passports. Therefore, the representation made by Capital Offset and Stewart is not considered here.


Capital Offset and Stewart seek summary judgment on Johnson's claims of negligent, intentional, and fraudulent misrepresentation; fraudulent concealment; and violation of the New Hampshire Consumer Protection Act. Johnson objects, arguing that the economic loss doctrine does not bar his negligent misrepresentation claim and that material disputed facts preclude summary judgment on all challenged claims. In their reply, Capital Offset and Stewart ...

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