United States Court of Appeals
For the First Circuit
No. 04-1698
ROSSI PEÑA-CRESPO,
Plaintiff, Appellant,
v.
COMMONWEALTH OF PUERTO RICO,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Lynch, Circuit Judge,
Baldock,* Senior Circuit Judge,
and Lipez, Circuit Judge.
Rafael A. Oliveras Lopez De Victoria was on brief for
appellant.
Salvador J. Antonetti Stutts, Solicitor General, with whom
Mariana Negrón Vargas, Deputy Solicitor General, was on brief for
Appellee.
May 18, 2005
*
Of the Tenth Circuit Court of Appeals, sitting by
designation.
BALDOCK, Senior Circuit Judge. Plaintiff Rossi Peña-
Crespo brought this action alleging employment discrimination under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-
2000e-17, against her employer, the Department of Family Affairs of
the Commonwealth of Puerto Rico. Plaintiff, who is originally from
the Dominican Republic, alleged she was subjected to a hostile work
environment on the basis of her national origin. After a bench
trial, the district court concluded Plaintiff was subjected to a
hostile work environment and awarded her $12,000 in damages.
Thereafter, Plaintiff filed a motion to alter or amend the
judgment, which the district court denied. Plaintiff appeals,
arguing the district court erred in (1) excluding her psychiatric
expert from testifying at trial, and (2) limiting her damage award
to $12,000. We have jurisdiction, 28 U.S.C. § 1291, and after
reviewing the district court’s decision to exclude expert testimony
and its award of damages for an abuse of discretion, see Willhauck
v. Halpin, 953 F.2d 689, 717 (1st Cir. 1991); Lawton v. Nyman, 327
F.3d 30, 37 (1st Cir. 2003), we affirm.1
1
Upon reviewing Plaintiff’s notice of appeal, it is unclear
as to whether she is appealing the district court’s underlying
judgment and/or the denial of her motion to alter or amend the
judgment. Although the two are generally distinct for purposes of
appeal, see Correa v. Cruisers, A Div. of KCS Int’l, Inc., 298 F.3d
13, 21 n.3 (1st Cir. 2002), such a distinction is irrelevant in
this case because Plaintiff’s issues are the same under both. See
id. Further, we have jurisdiction to review Plaintiff’s claims
notwithstanding the fact she was the prevailing party below.
See Depost Guar. Nat’l Bank v. Roper, 445 U.S. 326, 333-34 (1980);
Herbert v. Wal-Mart Stores, Inc., 911 F.2d 1044 (5th Cir. 1990)
(per curiam).
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I.
We need not engage in an exhaustive recitation of the
facts given the limited issues raised on appeal. Suffice it to
say, Plaintiff was born in the Dominican Republic and came to
Puerto Rico in 1969. Plaintiff has worked at the Department of
Family Affairs since 1989, and has been promoted several times.
Between 1999 and 2000, Plaintiff’s co-workers and supervisors,
among other things, directed derogatory and disparaging comments
and jokes towards Plaintiff because of her Dominican background.
Plaintiff reported the offensive remarks to her supervisors, but
they failed to remedy the situation. Plaintiff filed a charge of
discrimination with the Equal Employment Opportunity Commission
(“EEOC”). The agency issued Plaintiff a right-to-sue letter.
Plaintiff filed suit. After several delays, extensive
discovery, and ruling on numerous motions, the district court set
the bench-trial for December 1, 2003. On November 5, 2003,
Defendant filed a motion in limine seeking to exclude the testimony
of Plaintiff’s expert witness and treating psychiatrist, Dr. José
Alberto Alonso. Defendant argued (1) the identity of Plaintiff’s
expert witness had not been properly disclosed as required under
Fed. R. Civ. P. 26(a)(1), (2) Plaintiff failed to provide a written
expert report satisfying the requirements of Fed. R. Civ. P.
26(a)(2)(B), and (3) the documents Dr. Alonso submitted were
written in Spanish, rather than in English, and were thus
inadmissible under the district court’s local rules. The district
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court, without analysis, granted Defendant’s motion in limine and
excluded Dr. Alonso from testifying at trial.
After trial, the district court issued its findings of
fact and conclusions of law. The court concluded Defendant
violated Title VII. In calculating damages, the court found
“because Peña failed to present expert testimony from her
psychiatrist, the Court will limit the amount of damages that she
can receive for mental and/or emotional suffering.” The court
ultimately granted Plaintiff damages in the amount of $12,000.
Plaintiff filed a motion to alter or amend the judgment, arguing,
among other things, the district court erred in excluding her
expert witness from testifying at trial and limiting the amount of
her emotional damages. The district court denied Plaintiff’s
motion.
II.
A.
Plaintiff argues the district court erred in excluding
her expert witness, Dr. Alonso, from testifying at trial.
Specifically, Plaintiff claims she fully disclosed Dr. Alonso’s
name as an expert witness almost six months prior to trial.
Further, Plaintiff argues she satisfied the written expert report
requirements under Rule 26(a)(2)(B) when she submitted Dr. Alonso’s
psychiatric evaluation, resume, and Plaintiff’s medical records to
Defendant on “various occasions.”2
2
Plaintiff also argues the district court erred in allowing
(continued...)
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Plaintiff timely disclosed Dr. Alonso as an expert
witness.3 Plaintiff, however, failed to provide a written expert
report. Rule 26 requires the disclosure of a witness “who is
retained or specially employed to provide expert testimony in the
case . . . be accompanied by a written report prepared and signed
by the witness.” Fed. R. Civ. P. 26(a)(2)(B). The written report
must contain:
[A] complete statement of all opinions to be expressed
and the basis and reasons therefor; the data or other
information considered by the witness in forming the
opinions; any exhibits to be used as a summary of or
support for the opinions; the qualifications of the
witness, including a list of all publications authored by
the witness within the preceding ten years; the
compensation to be paid for the study and testimony; and
a listing of any other cases in which the witness has
testified as an expert at trial or by deposition within
the preceding four years.
Id.; see also Prieto v. Malgor, 361 F.3d 1313, 1317-18 (11th Cir.
2004) (noting submitting the expert witness’ name is not enough and
that each witness must provide a written report containing the
information required under Rule 26). A party who fails to disclose
the necessary information under Rule 26(a), without substantial
2
(...continued)
five of Defendant’s witnesses to testify over her objections. We
summarily reject this argument because even if the court erred,
such error was harmless. See Deary v. City of Gloucester, 9 F.3d
191, 197 (1st Cir. 1993). Each of the five witnesses only
testified as to Defendant’s liability under Title VII and the
district court found for Plaintiff as to liability. Thus
Plaintiff’s substantial rights were not affected.
3
Our review of the record shows Plaintiff listed Dr. Alonso
as a possible expert witness in, among other things, the pre-trial
order.
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justification, is not permitted to present the witness’ testimony
at trial. Fed. R. Civ. P. 37(c)(1).
We have recognized that “[i]n the arena of expert
discovery--a setting which often involves complex factual
inquiries--Rule 26 increases the quality of trials by better
preparing attorneys for cross-examination.” Laplace-Bayard v.
Batlle, 295 F.3d 157, 162 (1st Cir. 2002) (internal quotation and
citation omitted). The failure to provide an expert report that
satisfies the specific requirements of Rule 26(a)(2)(B) undermines
opposing counsel’s ability to prepare for trial. See id.
Accordingly, “district courts have broad discretion in meting out
. . . sanctions for Rule 26 violations . . . [and the] [e]xclusion
of evidence is a standard sanction for a violation of the duty of
disclosure under Rule 26(a).” Id. (internal quotation and citation
omitted).
In this case, Plaintiff’s expert witness, Dr. Alonso, did
not prepare or submit a written report meeting the requirements of
Rule 26(a)(2)(B). Although Plaintiff appears to have submitted, at
various times throughout discovery, a series of documents
consisting of Dr. Alonso’s psychiatric evaluation, his resume, and
Plaintiff’s medical records, such disclosures do not satisfy Rule
26(a). Specifically, the documents did not: (1) explain the basis
and reasons for Dr. Alonso’s opinions; (2) describe any exhibits
Dr. Alonso planned on using; (3) list Dr. Alonso’s publications or
other cases in which he had testified previously; or (4) set forth
Dr. Alonso’s expected compensation for his testimony and services.
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Accordingly, the district court did not abuse its discretion in
excluding Dr. Alonso from testifying as an expert witness at trial.
Moreover, even assuming the documents satisfied the
requirements of Rule 26(a), the district court, in excluding Dr.
Alonso’s testimony, may have also relied on Plaintiff’s failure to
provide an English translation of Dr. Alonso’s psychiatric
evaluation and resume as the Local Rules require. See U.S.D.C.
P.R. R. 10(b); 48 U.S.C. § 864 (noting “[a]ll pleadings and
proceedings in the United States District Court for the District of
Puerto Rico shall be conducted in the English language.”). The
district court did not abuse its discretion. Further, Plaintiff
did not attempt to remedy her omission before the district court or
to obtain a stipulation from opposing counsel as to an accurate
translation. Thus, there is no occasion to consider whether
Plaintiff’s error could be rendered harmless by later events.
See United States v. Morales-Madera, 352 F.3d 1, 7-11 (1st Cir.
2003).
B.
Plaintiff next claims the district court erred in
limiting her damage award to $12,000. Plaintiff raises the claim
in her “issues before the court” section of her opening brief.
Plaintiff’s only other reference to the matter, however, is her
broad statement that “[i]f the . . . Court had not excluded the
testimony [of Dr. Alonso] . . . the award in damages could ha[ve]
been in a greater amount than $12,000.” Plaintiff then speculates
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that her “mental condition easily could be evaluated in an amount
greater than $12,000.” Plaintiff fails to provide any additional
analysis regarding her damages issue. We have repeatedly held that
“issues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived.” In re
Gosselin, 276 F.3d 70, 72 (1st Cir. 2002)(internal quotation and
citation omitted); see also Mulvihill v. Top-Flite Golf Co., 335
F.3d 15, 27 (1st Cir. 2003)(noting an issue is waived when “the
proponent mentions it as a possible argument in the most skeletal
way, leaving the court to do counsel’s work”) (internal quotation
omitted).
Furthermore, given our prior holding that the district
court did not abuse its discretion in excluding Dr. Alonso’s expert
testimony, we need not discuss what effect Dr. Alonso’s testimony
may have had on Plaintiff’s emotional damages award. To do so
would constitute mere speculation and guesswork. The district
court properly limited Plaintiff’s damages for mental or emotional
suffering because Plaintiff failed to present the testimony of a
mental health expert. Although we have held that expert testimony
is not necessarily required, “the lack of such evidence is relevant
to the amount of the award.” Koster v. Trans World Airlines, Inc.,
181 F.3d 24, 35 (1st Cir. 1999) (emphasis added).
Based on the foregoing, the district court’s judgment is
AFFIRMED.
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