Pena-Crespo v. Commonwealth of PR

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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