United States Court of Appeals
For the First Circuit
No. 18-1991
AGLAED GONZÁLEZ-RIVERA,
Plaintiff, Appellant,
v.
CENTRO MÉDICO DEL TURABO, INC., d/b/a Centro Ambulatorio HIMA
San Pablo Caguas, d/b/a HIMA San Pablo Caguas, et al.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Selya, Circuit Judges.
David Efron, Etienne Totti del Toro, and Law Offices of David
Efron, PC, on brief for appellant.
José A. Morales Boscio, Alejandra M. Rivera Ramírez, Bufete
González Villamil, José A. Miranda-Daleccio, Fernando E. Agrait,
Fernando E. Agrait Law Office, Orlando H. Martínez Echevarría, and
Orlando H. Martínez Echevarría Law Office LLC, on joint brief for
appellees.
July 19, 2019
SELYA, Circuit Judge. Scheduling orders are essential
tools for modern-day case management, and litigants flout such
orders at their peril. This case, in which plaintiff-appellant
Aglaed González-Rivera violated just such a scheduling order and
suffered the consequences, illustrates the point. Because the
court below acted well within the encincture of its discretion in
refusing to countenance the violation, we affirm the entry of
judgment in favor of the defendants.
The relevant facts and travel of the case lend themselves
to succinct summarization. On March 15, 2010, the plaintiff, a
citizen of Connecticut, underwent surgery for complications
resulting from a miscarriage at a facility operated by Centro
Médico del Turabo, Inc. (the Hospital), located in Caguas, Puerto
Rico. Some years later, she invoked diversity jurisdiction, see
28 U.S.C. § 1332(a)(1), and sued the Hospital and several other
healthcare providers in the United States District Court for the
District of Puerto Rico.1 The plaintiff claimed that she had
sustained serious injuries due to the defendants' negligence. More
specifically, she alleged that the defendants, jointly and
severally, committed malpractice by, among other things, failing
to diagnose her condition in a timely manner, administering spinal
1 The defendants include Omega Anesthesia, PSC; Grupo HIMA
San Pablo, Inc.; Dr. Héctor Berríos-Echevarría; Dr. Francisco
Golderos-Sanabria; and Dr. Geovannie Marcano-Centeno.
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anesthesia carelessly and without her consent, rendering
inadequate post-operative care, and discharging her with
undiagnosed neurological damage.
After the defendants answered the complaint, the
district court entered a scheduling order. See Fed. R. Civ. P.
16(b). Among its other provisions, the scheduling order set a
deadline (May 20, 2016) for the disclosure of the plaintiff's
expert reports. Building on this foundation, discovery was to
close by November 15, 2016, and dispositive motions were to be
filed no later than December 16 of that year.
Within the allotted period, the plaintiff disclosed an
expert report authored by Dr. Carlos Lasalle-Nieves (Dr. Lasalle).
She produced no other expert reports. As the deadline for filing
dispositive motions drew near, the plaintiff moved to dismiss
without prejudice her claims against Dr. Berríos-Echevarría (her
obstetrician), acknowledging that she had no viable cause of action
against him. The district court granted her motion.
By December 16, 2016, the defendants had moved both for
summary judgment and for exclusion of Dr. Lasalle as an expert
witness. In July of 2017 — while the defendants' motions were
pending — the plaintiff reversed course and moved to set aside the
dismissal of her claims against Dr. Berríos-Echevarría. To justify
the proposed reinstatement of these claims, she cited a
neurological report by a new expert, Dr. Allan Hausknecht.
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Although the plaintiff had identified Dr. Hausknecht as a potential
expert witness early in the case, see Fed. R. Civ. P. 26(a)(1),
she did not disclose his report to the defendants until June of
2017. That was more than a year after the deadline that the
district court had set for the disclosure of the plaintiff's
experts' reports. The defendants objected on this basis and moved
to exclude Dr. Hausknecht as an expert witness. The district court
granted the defendants' motion to exclude Dr. Lasalle and denied
the defendants' motion for summary judgment without prejudice so
that the parties might explore settlement in light of Dr. Lasalle's
exclusion.2
When the parties' negotiations proved fruitless, the
defendants renewed their consolidated motion for summary judgment.
In a thoughtful rescript, the district court rejected the
plaintiff's motion to reinstate Dr. Berríos-Echevarría as a
2
For the most part, these rulings are not challenged on
appeal. Although the plaintiff's brief makes passing reference to
the district court's exclusion of Dr. Lasalle, there is no mention
of that exclusion order in her notice of appeal. Thus, we lack
jurisdiction to consider that order. See Rojas-Velàquez v.
Figueroa-Sancha, 676 F.3d 206, 209 (1st Cir. 2012) (noting that
"the jurisdiction of the court of appeals normally is limited to
review of orders and judgments specifically described in the notice
of appeal"); see also Fed. R. App. P. 3(c)(1)(B). And in any
event, any challenge to Dr. Lasalle's exclusion has been waived.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(admonishing that "a litigant has an obligation 'to spell out its
arguments squarely and distinctly,' or else forever hold its peace"
(quoting Rivera-Gomez v. De Castro, 843 F.2d 631, 635 (1st Cir.
1988))).
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defendant, granted the defendants' motion to exclude Dr.
Hausknecht as an expert witness, and — concluding that the
plaintiff could not prevail without admissible expert testimony —
entered summary judgment in favor of the defendants. This timely
appeal followed.
The Civil Rules require parties to disclose the identity
of all expert witnesses whom they intend to call at trial. See
Fed. R. Civ. P. 26(a)(2)(A). In most cases — the exceptions are
not relevant here — an expert witness must produce a written
report, which includes, among other things, "a complete statement
of all opinions the witness will express and the basis and reasons
for them." Fed. R. Civ. P. 26(a)(2)(B). District courts have
considerable autonomy in managing discovery proceedings. This
authority extends both to setting disclosure deadlines and meting
out sanctions when parties fail to honor such deadlines. See
Genereux v. Raytheon Co., 754 F.3d 51, 59 (1st Cir. 2014); see
also Fed. R. Civ. P. 26(a)(2)(D) (stating that expert disclosures
must be made "at the times and in the sequence that the court
orders").
We review for abuse of discretion a district court's
order excluding an expert witness as a sanction for noncompliance
with a scheduling order. See Samaan v. St. Joseph Hosp., 670 F.3d
21, 35 (1st Cir. 2012). "This standard of review obtains both as
to the finding that a discovery violation occurred and as to the
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appropriateness of the sanction selected." Santiago-Díaz v.
Laboratorio Clínico y de Referencia del Este, 456 F.3d 272, 275
(1st Cir. 2006). Review for abuse of discretion is highly
deferential. We will find such abuse only "when a material factor
deserving significant weight is ignored, when an improper factor
is relied upon, or when all proper and no improper factors are
assessed, but the court makes a serious mistake in weighing them."
Indep. Oil & Chem. Workers of Quincy, Inc. v. Procter & Gamble
Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988). Thus, "[t]he question
is not whether we, as an original matter, would have utilized the
same sanction, whether some harsher sanction might have been
warranted, or whether some less painful sanction might have
sufficed; rather, the question is whether the district court, in
choosing the particular sanction misused its discretionary
powers." Thibeault v. Square D Co., 960 F.2d 239, 243 (1st Cir.
1992).
In this instance, the plaintiff contends that the
district court abused its discretion by meting out an excessively
severe sanction. She notes that the court excluded her only
available expert witness, Dr. Hausknecht, thereby ensuring that
she could not prove an essential element of her malpractice claims.
When evaluating the appropriateness of a sanction, a reviewing
court must take into account the totality of the circumstances.
See id. at 246. Where, as here, the sanction for a Rule 26
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violation is the exclusion of a proffered expert witness, we
"consider a multiplicity of pertinent factors, including the
history of the litigation, the proponent's need for the challenged
evidence, the justification (if any) for the late disclosure, and
the opponent's ability to overcome its adverse effects." Macaulay
v. Anas, 321 F.3d 45, 51 (1st Cir. 2003). "Surprise and prejudice
are important integers in this calculus," as is "what the late
disclosure portends for the court's docket." Id.
The district court adopted this approach. It assayed
the totality of the circumstances and found that the lion's share
of the pertinent factors favored exclusion. To begin, the court
appraised the history of the litigation and discerned a strategic
attempt by the plaintiff, bordering on bad faith, to develop a
"contingency plan" through which she could salvage her case should
Dr. Lasalle's testimony be excluded. Next, the court weighed the
plaintiff's stated justification for the lengthy delay in
producing Dr. Hausknecht's report — that the disclosure deadline
referred exclusively to Dr. Lasalle's report — and found it
specious. Having concluded that the delay was manifestly
unwarranted, the court went on to find that it would be "wishful
thinking" to suggest that the defendants would not be prejudiced
by the late disclosure, especially since discovery had long since
closed and the defendants had already moved for summary judgment.
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Finally, the court explained that allowing the belated disclosure
would have a negative effect on its docket.
On the other side of the scale, the district court found
slim pickings. Only one factor favored the plaintiff: the need
for the precluded evidence. After all, excluding Dr. Hausknecht
would leave the plaintiff without any expert testimony and, thus,
would "effectively dispose of the case." Esposito v. Home Depot
U.S.A., Inc., 590 F.3d 72, 79 (1st Cir. 2009); see Cortés-Irizarry
v. Corporación Insular de Seguros, 111 F.3d 184, 190 (1st Cir.
1997) (explaining that "because Puerto Rico law presumes that
physicians exercise reasonable care, a plaintiff bent on
establishing a breach of a physician's duty of care ordinarily
must adduce expert testimony to limn the minimum acceptable
standard and confirm the defendant doctor's failure to meet it").
Nevertheless, the other factors preponderated so heavily against
excusing a blatant violation of the court's scheduling order that
exclusion (the court believed) was a condign sanction.
Although the plaintiff characterizes this ruling as
draconian, we think that it draws its essence both from the
particulars of the case and from the realities of modern-day
litigation. As we have warned, "discovery must not be allowed to
degenerate into a game of cat and mouse." Thibeault, 960 F.2d at
244. In choosing to disclose only a single expert report by the
court-ordered deadline, the plaintiff elected to gamble her case
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on the admissibility of that expert's testimony. She must abide
the foreseeable consequences of that lost gamble. When all is
said and done, "[a] party who knowingly chooses to put all [her]
eggs in one basket is hard-pressed to complain when the basket
proves inadequate and the trial court refuses to allow [her] to
substitute a new and previously undisclosed basket for it."
Samaan, 670 F.3d at 37. This is particularly true when — as in
this case — allowing the plaintiff to change course after the
defendants have already expended time and resources briefing a
motion for summary judgment would be obviously prejudicial. See
Amoah v. McKinney, 875 F.3d 60, 63 (1st Cir. 2017) (denying belated
attempt to add new experts because granting it would prejudice
defendants by requiring them "to withdraw their current motion for
summary judgment, depose plaintiff's experts, . . . and then — if
still deemed prudent — file a new motion for summary judgment").
If more were needed — and we doubt that it is — we cannot
forget that "the district court has an interest in the efficient
management of its docket." Santiago-Díaz, 456 F.3d at 277. It
follows that "[w]henever a party, without good cause, neglects to
comply with reasonable deadlines, the court's ability to manage
its docket is compromised." Id.
We do not gainsay that the plaintiff had a compelling
need for Dr. Hausknecht's testimony. But that circumstance was a
by-product of the plaintiff's tactical choices; and in all events,
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that circumstance alone cannot carry the day. See id. at 277-78
(affirming exclusion of plaintiff's sole expert when plaintiff's
need for expert testimony was only factor weighing in her favor).
Judicial decisions about sanctions cannot be made solely from the
perspective of one party to the case but, rather, must strike an
equitable balance between the rights and responsibilities of all
of the affected parties.
That is game, set, and match. Because the district court
did not abuse its discretion in excluding Dr. Hausknecht, its grant
of summary judgment was unimpugnable. See id. at 278 (explaining
that "[h]aving concluded that the district court's preclusion of
the plaintiff's expert evidence [in Puerto Rico medical
malpractice case] was well within its discretion, it follows,
virtually a fortiori, that the lower court did not err in
dismissing the action"). Indeed, the plaintiff has made no
developed argument that her malpractice claims can succeed without
expert testimony. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990) (explaining that issues "unaccompanied by some
effort at developed argumentation, are deemed waived").
We need go no further. There is little point in
repastinating soil already well-plowed, and this case bears a
strong family resemblance to Samaan. In each instance, the
district court ably evaluated "the relevant factors and made a
sensible (though not inevitable) choice of sanctions." 670 F.3d
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at 37. Accordingly, we hold that the court below did not abuse
its discretion in excluding Dr. Hausknecht as an expert witness.
"District judges live in the trenches, where discovery
battles are repeatedly fought." Thibeault, 960 F.2d at 244
(quoting Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076, 1082
(1st Cir. 1989)). When a district judge — especially a district
judge who has become intimately familiar with a case over the
course of several years — appropriately weighs the relevant factors
and selects a reasonable sanction for a discovery violation, "[w]e
cannot, from the remote vista of an algid appellate record, second-
guess that choice." Samaan, 670 F.3d at 37.
Affirmed.
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