Commercial Litigation and Arbitration

Notice of Appeal of Final Judgment Preserves for Review All Interlocutory Orders, Incluiding Order Excluding Expert Testimony under Rules 26(a)(2)(B) and 37(c)(1)

From Martinez-Serrano v. Quality Health Servs. of P.R., 2009 U.S. App. LEXIS 12302 (1st Cir. June 8, 2009):

On appeal, the plaintiffs maintain that the district court ... abused its discretion in precluding Dr. Colon's expert....

A. Expert Testimony.

Before considering the plaintiffs' preclusion claim, we must deal with a procedural argument: the Hospital asserts that this court lacks jurisdiction to entertain this preclusion claim because the plaintiffs failed to designate the exclusionary order in their notice of appeal. This assertion lacks merit.

To be sure, a notice of appeal ordinarily must designate the orders or judgments to which the appeal is directed. See Fed. R. App. P. 3(c)(1)(B). But this principle is not ironclad. One recognized exception concerns notices of appeal that designate the final judgment in a case as the appeal's object. The case law is consentient [yes, this is an opinion of Selya, J.] that such a notice of appeal is deemed to encompass not only the final judgment but also all interlocutory orders that merge into it. See John's Insul., Inc. v. L. Addison & Assocs., Inc., 156 F.3d 101, 105 (1st Cir. 1998). That is the situation here; the preclusionary order challenged by the plaintiffs is of the type and kind that merges into the final judgment. See, e.g., United States ex rel. Zembowski v. DeRobertis, 771 F.2d 1057, 1064-65 (7th Cir. 1985); see also 16A Wright, Miller, Cooper & Struve, Federal Practice & Procedure § 3949.4, at 100 n.32 (4th ed. 2008) (collecting cases). Consequently, we have jurisdiction to resolve this assignment of error.

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