Judge Burroughs Bars Replacement-Barge Damages in HC&D v. Cashman

BOSTON (LN) — U.S. District Judge Allison D. Burroughs on Thursday precluded HC&D, LLC from seeking replacement-barge damages in its breach of contract suit against Cashman Equipment Corp., ruling the plaintiff failed to adequately disclose the costs under Rule 26.

The court issued a memorandum and order explaining two rulings previously delivered, finding that HC&D’s initial disclosures in February 2022 identified a lump sum of $5.98 million in damages but did not itemize the replacement-barge costs.

Judge Burroughs wrote that while HC&D’s corporate designee Rick Volner discussed leasing a replacement barge in a February 2025 email and a July 2025 presentation, these disclosures did not provide the specific computation or evidentiary material required by Rule 26(a)(1)(A)(iii).

The court noted that even if the defendant could have inferred from discovery production that HC&D incurred replacement barge costs, the defendant "had no obligation to initiate discovery requests or presumptively calculate [Plaintiff's] damages," citing Hudson-RPM Distribs., LLC v. Bowditch & Dewey, LLP.

The judge rejected HC&D’s argument that the failure to disclose was substantially justified or harmless, noting that Cashman only learned the specific details of the rental costs on the eve of trial in May 2026.

Judge Burroughs concluded that the late disclosure prejudiced Cashman’s ability to research or challenge whether the expenditures were necessary or reasonably priced, and that the importance of the cost to HC&D did not offset that prejudice.

The court also ruled that HC&D’s duty to preserve the barge did not excuse its failure to mitigate damages by selling or scrapping the vessel.

Citing First Circuit precedent, the judge wrote that the duty to preserve evidence is not absolute and is motivated by fairness in discovery, requiring only that an opposing party have fair access to evidence.

"Plaintiff was correct to preserve the barge beginning when litigation was reasonably foreseeable, thereafter it had numerous opportunities to cure, or at least attempt to cure, any asymmetries of access," Judge Burroughs wrote.

The order allows Cashman to introduce evidence of HC&D’s failure to mitigate damages at trial.

HC&D had argued that it had an obligation to preserve the barge and avoid spoliation, but the court found no case in which a duty to preserve evidence provided a valid excuse for a failure to mitigate.