Andrews v. Target Pharmacy

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 16-2160

FRANK ANDREWS and ROBIN ANDREWS,

Plaintiffs, Appellants,

v.

TARGET PHARMACY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Allison D. Burroughs, U.S. District Judge]

Before

Howard, Chief Judge,
Selya and Lipez, Circuit Judges.

Edward L. Wells, Jr. on brief for appellants.
Sean J. Milano, Meredith M. Lasna, and Morrison Mahoney LLP
on brief for appellee.

October 23, 2017
 SELYA, Circuit Judge. This civil action was brought in

a Massachusetts state court and removed to the federal district

court on the basis of diversity jurisdiction. See 28 U.S.C.

§§ 1332(a), 1441. Massachusetts law supplies the substantive rules

of decision. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78

(1938); Summers v. Fin. Freedom Acq. LLC, 807 F.3d 351, 354 (1st

Cir. 2015). The district court granted summary judgment in favor

of the defendant and the plaintiffs now appeal.

The facts of the case are straightforward. The

plaintiffs, Frank Andrews (Frank) and his wife Robin Andrews

(Robin), allege that the defendant negligently filled a

prescription for Frank by dispensing a dosage ten times higher

than prescribed.1 The plaintiffs further allege that Frank

unwittingly ingested these pills between September 10 and

September 13, 2009, causing him to suffer renal failure and other

harm. Frank seeks damages for pain and suffering, hospital and

medical expenses, and lost wages; Robin (who sues derivatively)

seeks damages for lost wages and loss of consortium.

We briefly rehearse the travel of the case. In the

course of pretrial discovery, the district court set July 1, 2015,

1
The plaintiffs named "Target Pharmacy" as the defendant.
The record indicates, however, that no such entity as "Target
Pharmacy" exists and that Target Corporation operates the pharmacy
(and, thus, is the proper defendant in this action). Nothing turns
on this misnomer.

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as the date for the plaintiffs' expert witness disclosures. See

Fed. R. Civ. P. 26(a)(2). This date passed without any vestige of

compliance on the plaintiffs' part. In October, the defendant

moved to preclude the plaintiffs from offering any expert

testimony. The district court granted the plaintiffs another bite

at the cherry, extending the deadline for expert witness

disclosures to December 21. See Fed. R. Civ. P. 26(a)(2).

Within the extended period, the plaintiffs identified

Dr. Steven Gabardi as a prospective expert witness. They

nonetheless failed to provide Dr. Gabardi's report to the defendant

as required by the district court's pretrial order, and they did

not name any other prospective expert witnesses.

The district court gave the plaintiffs yet a third bite

at the cherry. But this was only a partial bite: even though the

court allowed the plaintiffs another opportunity to furnish Dr.

Gabardi's report, it granted the defendant's earlier motion and

precluded the plaintiffs from offering the testimony of any expert

not identified by the December 21 deadline.

Withal, Dr. Gabardi's report was not forthcoming within

the allotted time. Bending over backwards, the district court

gave the plaintiffs a final extension to February 9, 2016, to

provide the report. This time, the plaintiffs did so.

Faced with a record dominated by the plaintiffs' blithe

disregard for deadlines, the district court reaffirmed its earlier

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order and again precluded the plaintiffs from offering any expert

testimony apart from Dr. Gabardi's testimony. The defendant

proceeded to move for summary judgment. See Fed. R. Civ. P. 56(a).

The plaintiffs immediately sought leave to reopen discovery.

In due course, the district court denied the plaintiffs'

motion to reopen discovery and granted the defendant's motion for

summary judgment. See Andrews v. Target Pharmacy #T-2292, No. 13-

cv-12268, 2016 WL 4250243, at *7 (D. Mass. August. 10, 2016). This

timely appeal ensued.

We have made no secret of our view that the court of

appeals should not wax longiloquent for no reason other than to

hear its own words resonate. See, e.g., Eaton v. Penn-Am. Ins.

Co., 626 F.3d 113, 114 (1st Cir. 2010); Collier v. City of

Chicopee, 158 F.3d 601, 604 (1st Cir. 1998); Ayala v. Union de

Tronquistas, Local 901, 74 F.3d 344, 345 (1st Cir. 1996); Holders

Capital Corp. v. Cal. Union Ins. Co. (In re San Juan Dupont Plaza

Hotel Fire Litig.), 989 F.2d 36, 38 (1st Cir. 1993). When a lower

court has accurately taken the measure of a case and articulated

its reasoning clearly and cogently, it would serve no useful

purpose for us to write at length. This is such a case.

Consequently, we affirm the judgment below for substantially the

reasons elucidated in the district court's rescript, adding only

a few specific observations.

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 First: the plaintiffs' claim that they were improperly

precluded from offering expert testimony lacks any semblance of

merit. We review a challenge to a discovery-related preclusion

order for abuse of discretion, see Macaulay v. Anas, 321 F.3d 45,

51 (1st Cir. 2003), and we discern no hint of abused discretion in

this case.

To help ensure an orderly system of adjudication, the

Federal Rules of Civil Procedure provide for extensive pretrial

disclosures concerning expert witnesses and expert testimony. See

Fed. R. Civ. P. 26(a)(2). Parties disregard either these

strictures or the provisions of pretrial orders implementing them

at their peril. See Macaulay, 321 F.3d at 50. Where gross

violations occur, preclusion of expert testimony may be an

appropriate sanction. See Thibeault v. Square D Co., 960 F.2d

239, 245 (1st Cir. 1992); see also Esposito v. Home Depot U.S.A.,

Inc., 590 F.3d 72, 77-78 (1st Cir. 2009) (listing "host of factors"

to consider when determining whether a preclusion sanction is

proper). Where, as here, the sanction has serious consequences

for the disposition of the case, "the justification for it must be

comparatively more robust." Esposito, 590 F.3d at 79.

Here, the district court exhibited extraordinary

patience in the face of persistent disregard of discovery

deadlines. The plaintiffs were afforded ample opportunities to

comply with the disclosure obligations reasonably imposed by the

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district court. By and large, the plaintiffs rewarded the district

court's patience by turning a blind eye to their court-imposed

obligations. Given the absence of any credible justification for

their lapses, the prejudice to the defendant that those lapses

manifestly portended, and the adverse impact of those lapses on

the district court's ability to manage its docket, the preclusion

order was well within the wide encincture of the district court's

discretion. See id. at 78.

Second: the plaintiffs' motion for leave to reopen

discovery was too little and too late. Although the plaintiffs

belatedly asserted that their lawyer's health problems between

late 2014 and early 2015 somehow interfered with their ability to

comply with the deadlines set by the district court, they advance

no reason for failing to ask for a continuance on this basis. See

Faigin v. Kelly, 184 F.3d 67, 85 (1st Cir. 1999) ("[A] reviewing

court may attribute special significance to the party's eschewal

of a continuance and assume that the party did not require

additional time to adjust his litigation strategy."). In all

events, the stated health concerns afford no plausible

justification for flouting the December 2015 deadline. Viewing

the record as a whole, we conclude, without serious question, that

the district court did not abuse its discretion in denying the

plaintiffs' motion to reopen discovery.

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 Third: despite their protestations to the contrary, the

plaintiffs' challenge to the entry of summary judgment in favor of

the defendant is unavailing. In Massachusetts, a party ordinarily

must produce "expert testimony . . . to establish medical

causation." Milward v. Rust-Oleum Corp., 820 F.3d 469, 476 (1st

Cir. 2016) (quoting Reckis v. Johnson & Johnson, 28 N.E.3d 445,

461 (Mass. 2015) (applying Massachusetts law); see Case of Canavan,

733 N.E.2d 1042, 1051 (Mass. 2000) ("Because understanding medical

causation is 'beyond the . . . knowledge of the ordinary layman

. . . proof of [such causation] must rest upon expert medical

testimony.'" (quoting Hachadourian's Case, 162 N.E.2d 663, 666

(Mass. 1959))). Here, the plaintiffs had to prove that Frank's

ingestion of the wrong dosage caused the injuries of which he

complained. That was a medical causation question that fell within

the general rule (not within the long-odds exception to it). Yet,

the plaintiffs did not offer a scintilla of expert testimony to

prove causation.2 We therefore conclude, on de novo review, see

Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 4 (1st Cir.

2010), that the court below did not err in ruling that the

plaintiffs had failed to make out a genuine issue of material fact

with respect to causation.

2
To be sure, the plaintiffs did submit Dr. Gabardi's expert
witness report. Dr. Gabardi made it crystal clear, though, that
he had not formed — and would not venture — any opinion on medical
causation.

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 Fourth: the plaintiffs contend that they were entitled

to have their case heard by a medical malpractice tribunal. See

Mass. Gen. Laws ch. 231, § 60B. The statute itself belies their

contention: the defendant, operating as a pharmacy, was not a

"provider of health care" within the statutory compass. Id.

We need go no further. Though the plaintiffs make a

host of other arguments, none of them is persuasive. For the

reasons limned in the district court's lucid rescript and

supplemented here, the judgment of the district court is summarily

Affirmed. See 1st Cir. R. 27.0(c).

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