Gagnon v. Teledyne Princeton, Inc.

United States Court of Appeals
For the First Circuit

No. 05-1504

DANIEL J. GAGNON,

Plaintiff, Appellant,

v.

TELEDYNE PRINCETON, INC., ALLEGHENY TECHNOLOGIES, INC.,
PRINCETON DELIVERY SYSTEMS, INC. AND DOES 1-10,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Howard, Circuit Judge.

Wilbur A. Glahn, III, with whom R. David DePuy, Scott H.
Harris, and McLane, Graf, Raulerson and Middleton, Professional
Association, were on brief for appellant.
David G. Klaber with whom Mark D. Feczko, Jeffrey S. King,
Gregory R. Youman, and Kirkpatrick & Lockhart Nicholson Graham LLP
were on brief for appellees.

February 13, 2006
 COFFIN, Senior Circuit Judge. This is a product liability

action, resting on diversity jurisdiction, brought in the district

court for the District of Massachusetts. Plaintiff-appellant was

rendered a quadriplegic by injuries sustained when the forklift he

was operating tipped over as he attempted to move a tree.

Attributing the accident to a problem with the forklift, he sought

recovery from defendants-appellees for alleged failures of design,

lack of care in manufacturing, inadequate warning, breach of

implied and express warranty, and misrepresentations in violation

of the Massachusetts Unfair Trade Practices Act, Mass. Gen. Laws

ch. 93A. For reasons we shall explain, we vacate the district

court’s summary judgment for defendants and remand for further

proceedings.

I. Procedural Background

The accident happened in June 1999. Suit was brought nearly

three years later, in March 2002. Defendants filed a motion to

dismiss, and for a number of months the parties engaged in filing

various oppositions and replies. The court denied the motion to

dismiss in January 2003 and set a schedule that required plaintiff

to disclose his experts by January 30, 2004. A joint motion for

extension was granted in November 2003, and the new date for

plaintiff's expert disclosures was April 30, 2004. No further

extension was sought until May 3, 2004, three days after the

deadline.

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 At that time, plaintiff sought an additional six-week

extension. The court denied this motion on May 21 based on Fed. R.

Civ. P. 37(c)(1),1 but plaintiff nonetheless proceeded to gather

his experts' reports and filed his disclosure on June 14 – six

weeks late. During the following nine months, four separate orders

refusing reconsideration and precluding plaintiff's experts'

putative testimony were issued. The court subsequently granted

summary judgment for defendants, concluding that, without experts,

the plaintiff could not establish his claims. It noted

alternatively that the expert testimony would not have helped

because the experts failed to address the critical issue of the

forklift’s condition at the time of its manufacture in 1988.

The termination of a case based on such a procedural

requirement as timely disclosure of expert witnesses presents a

particularly poignant issue when injuries are as serious as those

suffered by plaintiff. We are nonetheless unable to say that the

district court abused its discretion in impliedly finding that

plaintiff failed to provide sufficient justification for his late

disclosure. We are also unable at this juncture, however, to

1
Rule 37(c)(1) states, in pertinent part: “A party that
without substantial justification fails to disclose information
required by Rule 26(a) or 26(e)(1)[listing required disclosures] .
. . is not, unless such failure is harmless, permitted to use as
evidence at a trial, at a hearing, or on a motion any witness or
information not so disclosed. In addition to or in lieu of this
sanction, the court, on motion and after affording an opportunity
to be heard, may impose other appropriate sanctions.”

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affirm the summary judgment because we lack the court’s considered

views as to whether the "harmless error" escape valve of section

37(c)(1) applies. We therefore remand for consideration of that

issue. If the court on remand finds the tardiness to be harmless,

its alternative ruling on the merits of the expert evidence must be

revisited.

We proceed with the following steps: noting the issues

presented and the relevant standard of review; tracing the tortuous

path of this litigation, exposing the facts as the court reasonably

could view them; and determining how law and policy apply to the

facts at hand.

II. Issues and Standard of Review

The issues before us involve the application of Fed. R. Civ.

P. 37(c)(1), which excuses late disclosure if a party has

“substantial justification.” The first question we face,

therefore, is whether plaintiff’s rationale establishes

justification for his untimeliness. But even if it does not, we

must consider whether his delay was harmless.

Plaintiff asserts that his tardiness was caused by defendants’

misrepresentations concerning stability testing on the forklift and

by defendants’ long delay in giving him the names of former

employees who would have knowledge about that testing. This, he

maintains, establishes “substantial justification.” In addition,

he emphasizes that his late disclosure caused no prejudice, as a

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trial date had not yet been set and no pretrial deadlines were

impacted.

Before delving deeply into the underlying circumstances, we

must recognize that the expert preclusion order at issue here falls

in the heartland of case management decisions – the area where a

trial judge has the remorseless responsibility, evenhandedly and

efficiently, to govern, monitor, and police the progress of an

endless line of cases through the court. Our standard of review is

abuse of discretion, which we have described as "highly

deferential," Delaney v. Matesanz, 264 F.3d 7, 13-14 (1st Cir.

2001), requiring "strong evidence that the trial judge indulged a

serious lapse in judgment," Texaco Puerto Rico, Inc. v. Dep't of

Consumer Affairs, 60 F.3d 867, 875 (1st Cir. 1995). See also

Macaulay v. Anas, 321 F.3d 45,51 (1st Cir. 2003) (in reviewing

preclusion of expert testimony, court considers whether the ruling

“was so wide of the mark as to constitute an abuse of discretion").

We narrow the field further when we focus specifically on

Rule 37(c)(1). In Primus v. United States, 389 F.3d 231 (1st Cir.

2004), we stressed that "[t]he adoption of Rule 37(c)(1) in 1993

'gave teeth to a significantly broadened duty' to comply with case

management orders." Id. at 234 (citation omitted). Our view of

the effect of this rule is well stated in Klonoski v. Mahlab, 156

F.3d 255, 269 (1st Cir. 1998), where we declared that it "clearly

contemplates stricter adherence to discovery requirements, and

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harsher sanctions for breaches . . . , and the required sanction in

the ordinary case is mandatory preclusion."

We review the facts, however, in the light most favorable to

appellant, as this case comes before us on appeal of a grant of

summary judgment. See Burton v. Town of Littleton, 426 F.3d 9, 14

(1st Cir. 2005).

III. Factual Background

The initial inspection. In 2001, before the complaint

was filed and approximately two years after the accident, two

engineers were asked to review for design defects the "Piggyback"

D-3600 forklift used by plaintiff. By late spring, the location of

the forklift had been determined, a small farm about a two-hour

drive east from Montreal, Canada. An affidavit of one of

plaintiff's attorneys, Scott Harris, reports that the two engineers

went to the farm and spent several hours examining the vehicle.

Harris’s affidavit presents their assessment as follows:

Those two consultants concluded that the machine
violated the standards for rough terrain forklifts
adopted by the American National Standards Institute
("ANSI") and American Society of Mechanical Engineers
("ASME"). Consequently, we prepared Daniel Gagnon's case
for filing.

In his brief, plaintiff asserts that the consultants "did not

suggest testing the weight load capacity of the forklift," and he

has maintained that that issue was not pursued early on because of

defendants’ representations that a metal plate on the machine

attesting to its compliance with the ANSI/AMSE standards reflected

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that testing had been conducted on it. Plaintiff consequently

looked elsewhere for a design flaw.

The complaint and answer. The complaint was filed some nine

months after the experts’ report, in March 2002. Its allegations,

although presumably based on the experts' conclusions, are

inconsistent in their treatment of stability and that of other

alleged defects. The complaint is very specific in alleging that

the driver's cage is “too small and/or improperly angled” (¶22),

that the moveable steering column exacerbated the operator's loss

of control (¶24), that there was no brake (¶26), and that the

seatbelt design was defective (¶28). Then came the mention of

instability, a generality surrounded by specifics. The allegation

of defective design in Count I (strict liability and implied

warranty) concludes:

Specifically, the protective cage, moveable steering
column, lack of a foot pedal control for the brake, lack
of a sufficient braking system, inherent instability of
the machine, negligent design of the seat and seatbelt,
lack of adequate rear weight, lack of a stationary
steering wheel column, and other components of the
Piggyback Forklift were designed in such a way as to pose
an immediate, severe and unavoidable risk of danger to
operators of the Piggyback Forklift. [¶42, emphasis
supplied]

For more than a year after the complaint was filed, plaintiff

seems to have taken no steps to make a case for an inherently

unstable design. Much time was devoted to filings related to

defendants’ motion to dismiss, which was denied on January 8, 2003.

Plaintiff asserts that, during this period, the two engineers had,

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for reasons not associated with the case, lost plaintiff's

confidence in their ability to be credible witnesses. After the

January ruling, plaintiff began the search for new experts.

On January 31, defendants answered the complaint, asserting

general denials of defective design and noting the absence of any

information indicating how the forklift was "otherwise unsafe as

well as improperly, dangerously, and defectively designed." The

answer also contained many affirmative defenses, including the

failure to establish proximate cause, plaintiff's own carelessness

and failure to follow stated warnings and safe practices, and

abnormal and unexpected use of the forklift.

Disclosure schedule; search for defendants’ tests. With the

deadline for plaintiff’s disclosure of experts set for January

2004, plaintiff focused in the spring and early summer of 2003 on

requests for production of documents and answers to

interrogatories. These efforts resulted in defendants submitting

a one-page "Compliance Matrix for ASME B56.6-1992." This document

described the test to determine the longitudinal stability of a

rough terrain forklift truck - mainly, to see if a fully loaded

truck would still be stable when tilted on a 6% slope. Checkmarks

indicated that this was mandatory, that there had been compliance,

and that the person responsible for determining compliance was

someone with the initials PWN. This proved to be one Paul Neagle,

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the manufacturer’s former chief engineer, who then became the

object of plaintiff's search.

Before Neagle was located and deposed, the corporate designee

of one of the defendants, Danny Denney, gave a deposition. He

disclaimed any personal knowledge of "specific outside tests" that

had been done on Piggyback forklifts and then explained the

manufacturer's practice:

[I]f the machine is labeled with an ANSI designation of
B56.1 and/or .6 designation, in order to do that, that
meant somebody had to go to the book that existed at the
time, because those standards change throughout the
years, and review that and ensure that the machine met
those standards at that time. Somebody did that in order
to put that [safety compliance label] on there. That's
a voluntary standard. We don't have to meet those
standards. There's no entity that says you have to.
It's a voluntary restriction we put on our own design.
So basically to do that, obviously somebody went through
the review of what the standard is and ensured the
forklift did it, performed within those standards.

Neagle's deposition was finally taken on February 17, 2004.

His employment with the manufacturer (Teledyne Princeton) had

commenced only in 1989, after the forklift at issue had been

designed and manufactured. While he had done some "operational and

performance testing" of the D-3600 model, he did not know of any

"formalized testing." Although he thought that he had made some

calculations as to the location of the center of gravity, he did

not know of any prior testing of stability.

A three months extension and efforts to test. Only at the end

of 2003, after Denney’s deposition, did plaintiff decide to look

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for the same model forklift to obtain "proof positive that the

machine did not meet the represented standards." See Harris

Affidavit at 7. In late March 2004 – with the expert disclosure

deadline now set at April 30 – negotiations with the Canadian owner

of the forklift resulted in plaintiff's purchase of the machine,

which arrived in the United States on April 8. Plaintiff had

secured the services of three experts. One was ready to give his

opinion by mid-April. A second expert, because of a fire at his

residence overseas, had faced delay in receiving and responding to

plaintiff's e-mail. And the third, who had expected to do the

required testing for longitudinal stability in the third week of

April, had to wait until the testing could be done at a specially

outfitted test center. Time was running out. Notwithstanding

this, no attempt was made to notify the court and request a further

extension.

The late motion and rejection. Time had run out. April 30

came and went. By an e-mail message on April 28, plaintiff asked

defendants to agree to a second extension, not a matter of days,

but a six-week extension of time to disclose anticipated expert

testimony. Having accommodated defendants by extending a discovery

deadline and agreeing to several additional depositions, plaintiff

expected defendants to consent. But late in the day on April 30

defense counsel reported that his clients refused.

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 Only on May 3 did plaintiff move the court for a six-week

extension. Defendants opposed the motion, pointing out from

information conveyed to them by the owner of the forklift that

plaintiff's counsel and one or more of his experts had, years

earlier, taken "possession of the actual forklift involved in the

accident for an extended period and from all indications operated,

inspected and tested the forklift, paying the then owner of the

forklift for this opportunity." Defendants charged that there was

no reason why, some time in the more than four years since the

accident, plaintiff's experts could not have tested the lift.

The court denied the motion on May 21, citing its late filing

and defendants' representations that we have just quoted.

Notwithstanding this rebuff, plaintiff proceeded to submit, on June

14, a twenty-four page disclosure of witnesses. These included the

three experts recently retained. Other named witnesses were a

rehabilitation counselor, a physiatrist, an economic consultant,

some sixteen institutional providers of medical care and many

individuals associated with them, including treating physicians, a

neurologist, a urologist, and specialists in nephrology.

The thrust of the experts' proffered testimony was that the

Piggyback D-3600 forklift had been tested for longitudinal

stability according to the ANSI standards and failed to handle the

load for which it supposedly was certified. While the underlying

causes of action in general terms covered this alleged defect, the

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emphasis on the forklift’s load-handling capacity marked a change

in plaintiff’s focus.

The filing of this ambitious disclosure was followed by a

nine-month period of frenetic activity. Plaintiff had moved for

reconsideration on June 1; the court denied the motion on July 6

after a flurry of filings in support and against it. On July 19,

plaintiff again moved to allow a late disclosure of expert

witnesses; this was denied on September 6, the court noting that

"[z]ealous advocacy" had reached its limits on the issue.

Hearings: magistrate judge and the court. Defendants,

meanwhile, had moved on July 8 to preclude expert testimony, and

the motion was granted by a magistrate judge on September 29. In

her order, she ruled that plaintiff's complaints of misconduct by

defendants had not been borne out by the record, and that any such

misconduct would not excuse the failure to timely disclose experts.

Nevertheless, recognizing that precluding expert testimony might be

fatal to plaintiff's claims, she allowed him opportunity to seek

reconsideration before the district court.

On February 22, 2005, a hearing was held before the district

judge, both to reconsider the magistrate judge's ruling and to

consider defendants' motion for summary judgment. Despite having

ruled on three occasions the previous year (May 21, July 6, and

September 6, 2004), he was willing to reconsider in light of the

fact that the magistrate judge had also reconsidered. What

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bothered him, in addition to the untimeliness of disclosure, was

that plaintiff's team had had access in 2001 to the very forklift

involved in the accident, had examined it, knew where it had been

ever since, and yet had done no testing until 2004.

In response, plaintiff’s counsel explained that, despite the

reactions of the first two experts, no defect justifying such

testing had been suspected. Plaintiff's counsel listed the

thinking that existed when the lawsuit was brought:

We thought [the machine] was unstable, and we
thought the cage was too small, or the head bar was too
small, and that the machine was unstable because of
certain other defects, the – the steering wheel that you
push forward to make it go forward, and you pull it back
to make it go back.

But because defendants' representations indicated compliance

with ANSI standards, these details missed what counsel acknowledged

had now become "the core of this case." This significant colloquy

between court and counsel followed:

THE COURT: Shouldn't you have tested this? I mean,
after all, when you have a claim that the – this vehicle
tipped over, doesn't it occur to you that it might have
tipped over, because it couldn't have carried the load
going backwards?

Doesn't that – doesn't that seem one of the first
thing [sic] you look – you'd look to?

COUNSEL: Yes.

* * *

THE COURT: And you accepted that they had tested.
You asked about that, and you accepted that they had
tested it and that they could not find the testing before
you tested this vehicle.

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 COUNSEL: Yes, your Honor.

THE COURT: And you did not test it – you did not
test it for three years after you looked at this machine
–

COUNSEL: Yes, your Honor.

THE COURT: . . . It strikes me that, you know, that
I should exclude this, these experts, because in that
period of time all of these tests could have been – could
have taken place.

COUNSEL: But we were – in retrospect, what you're
saying is right, I should have acted quickly, or
responded, or what have you. I did not. The cost of the
test was significant. We had a steel box constructed in
Illinois. We had a connection there. We had the
forklift shipped out to Illinois, and we had two
engineers test it, and we purchased the machine – I think
the cost all total was around $30,000.

On March 1, the court granted defendants' motion to strike the

expert evidence from plaintiff’s opposition to defendants' motion

for summary judgment, again deeming the proffer unjustifiably late.

The next day, the court granted summary judgment to defendants

since, "[w]ithout experts, the plaintiff cannot establish his claim

of negligence or breach of warranty . . . ." The order went on to

note that, even if the testimony of the late-disclosed experts were

allowed, plaintiff could not prove his claims.

IV. Analysis

Substantial Justification. This case differs somewhat from

others that have come before us. We have neither a series of

missed deadlines nor a last minute disclosure on the eve of trial.

Instead, we have one missed deadline, preceded by lengthy and

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persistent discovery that in the end proved a blind alley to

discovering the basic issue in the case. A request for extension

was filed three days after the deadline, before the scheduled close

of discovery or the setting of a trial date.

The parties, of course, differ completely on the justification

for what happened. Plaintiff claims that he reasonably relied on

defendants’ representations that the forklift complied with the

ANSI standards and that he was misled until he was able to buy the

vehicle and transport it to the United States for testing in 2004.

Defendants claim that plaintiff not only had ample opportunity to

test the forklift since 2001, but that his single-minded attempt to

build his case on testing information from defendants was

"vexatious behavior" mandating refusal of the proffered expert

testimonies.

As noted earlier, we review this case through a lens "highly

deferential" to the court. It is obvious that the court was not

impressed by plaintiff's arguments. It repeatedly expressed its

difficulty in understanding why plaintiff would confine his efforts

to probing defendants' knowledge and information about tests. It

also was unpleasantly surprised to learn that plaintiff knew the

location of, and had access to, the very forklift involved in the

accident for some three years. It saw no reason why he had not

made his own independent investigation of stability. Is this a

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view so "wide of the mark" that it is an abuse of discretion? A

number of indications in the record support the court’s conclusion.

To begin, plaintiff’s first experts concluded in 1999 that the

machine violated the ANSI/AMSE standards. Although those

individuals were later discharged, we have no explanation why their

initial conclusion was not further pursued. Plaintiff argues that

we should not fault his inaction in pursuing the instability theme

because of the pendency of a motion to dismiss filed by defendants.

We fail to see why a party may not continue the investigation of a

case even while responding to motions filed by his adversary.

Plaintiff's main justification, of course, was that he relied

on defendants’ representations that tests had been conducted that

led them to label the forklift with a plaque indicating compliance

with the stability standards. Plaintiff had received a copy of a

report by an independent testing facility, certifying that the

forklift had passed the ASME/ANSI standards relating to a "crush

test," which evaluated the protectiveness of the driver's cage.

He knew, however, that defendants did not have an independent

report on longitudinal stability and admits that he accepted their

assurance of compliance “at face value, albeit with some degree of

inquisitiveness."

That degree of inquisitiveness clearly did not satisfy the

district court. By September 2003, plaintiff knew that defendants

could not locate their tests supporting compliance. Although

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plaintiff persisted in a search for the tests, the district court

reasonably could conclude that placing implicit trust in the

integrity of tests conducted by an adversary, instead of

endeavoring to do original testing, resulted in delay for which

plaintiff was responsible. The court may be forgiven for thinking

that plaintiff could have done, at any time since 2001, what he did

in the spring of 2004. Plaintiff's explanation to the court that

costs of purchasing, shipping, and testing were "significant" does

not insulate him from "the consequences of the risk [he] assumed."

See LaPlace-Bayard v. Batlle, 295 F.3d 157, 162 (1st Cir. 2002).

While laws, rules of pleading and procedure, practices, and

ethical principles have considerably cabined and refined the

"sporting theory of justice," a continuing responsibility rests on

parties to investigate their causes of action. Too facile an

acceptance of representations from adversaries is dangerous.

Whether plaintiff was reasonable in relying on the litigation

strategy he adopted is not our question. It is whether the

district court abused the discretion accorded to it. We hold that

it did not.

What we have said concerns a party's obligation to

investigate. We now come to the obligation to observe deadlines

set by the court. As we have noted, the parties jointly moved for

a three-month extension of time in which to disclose experts. The

court accommodated by advancing the date to April 30, 2004, giving

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plaintiff five additional months. We have detailed the

difficulties plaintiff encountered, both with his new experts and

with making arrangements for testing the forklift. We have also

related how time ran out without any attempt to obtain a second

extension of time.

At oral argument we sought the reason.

COURT: There was a lot of investigation done by your
side of the case but there's a disconnect for me in terms
of missing the deadline. Exactly what was the
justification for that?

COUNSEL: Your honor, in many respects it was an
error on our part. We talked to the other side about a
concurrence. But there is a simple reason for why we
waited until when we waited. And the answer is we
thought we could do it. We thought in February that we
could get these tests done. And it wasn't until the
middle of April that we realized that we couldn't. If we
knew what we knew now, clearly you could say what we
should have done is go into Judge Lindsay's courtroom in
February and say we've got a problem, your honor. But
that would have immediately then have said: No. 1, we're
certain that when we get this test it will fail and we
weren't certain of that, and secondly, we would have been
in a position where we were asking for an extension early
on.

COURT: When did you realize that you couldn't make
it?

COUNSEL: In mid April your honor.

COURT: And when was the deadline?

COUNSEL: The deadline was April 30th.

COURT: Well, why didn't you then say, Judge, we've
got a problem.

COUNSEL: We should have. We should have.

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 This has not been a tale of lack of effort, of bland

disobedience of a series of court orders, or of unsavory scheming,

but of what the district court could reasonably view as a

miscalculated strategy topped by an inexcusable failure to observe

a long-established deadline. We add that both the magistrate judge

and the court gave consideration and sensitive reconsideration to

plaintiff's attempted justification for late disclosure. The court

did not commit an abuse of discretion in impliedly ruling, as a

basis for its preclusion of expert witnesses, that the failure to

disclose was not substantially justified.

Harmlessness. We therefore turn to the smaller escape valve

in Rule 37(c)(1): whether the late disclosure, though not

justified, was nonetheless harmless. The contours of this

provision are not well charted.

The Advisory Committee notes to the 1993 amendments to the

rule state that the harmlessness provision is intended "to avoid

unduly harsh penalties in a variety of situations." Illustrative

examples are late disclosures of a potential witness known to all

parties, a trial witness already listed by the adverse party, or a

witness on behalf of a pro se litigant ignorant of the requirement.

These suggest a fairly limited concept of "harmless." Certainly,

were the concept to be a balancing of harms or burdens of the

parties, without consideration of fault or concerns about present

and future court administration, an individual plaintiff in a

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product liability case would likely always prevail against a

corporate defendant, no matter how poor his counsel's

representation or how case management might be affected. The

latter would be seriously compromised.

As we stated in Macaulay, 321 F.3d at 51, "[T]rial judges must

work a complicated equation, balancing fairness to the parties with

the need to manage crowded dockets." This means that

the court of appeals must 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. Surprise and prejudice are important
integers in this calculation. So too is an assessment of
what the late disclosure portends for the court’s docket.

Id. (internal citations omitted).

Plaintiff argues that his late disclosure was made before any

trial date had been set and did not involve serious or repeated

misconduct. The only prejudice faced by defendants, he asserts, is

the need to support the representations about stability that they

have made for two decades and could address by repeating the

testing that allegedly had been done. Defendants point out that

their response to plaintiff’s appeal is at least the sixth time

they have invested effort to oppose plaintiff's motion for a six-

week extension, and prejudice also exists in their having prepared

a dispositive motion for summary judgment predicated on the

preclusion of the expert testimony.

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 Our problem with the record before us is that, restricted

though the concept of harmlessness might be, there was not only no

balancing of fairness, burden, and case management needs, but also

no evident consideration of the issue. The magistrate judge noted

the plaintiff's contention that the late disclosure would have

"only 'slight impact' on the Court's administration of the case,"

but disposed of the argument, stating:

That decision is not one for the plaintiff's counsel to
make; it is one for the District Court. It appears to
this Court that the District Court has spoken clearly and
authoritatively on such matters in this case, and it is
not for this Court to second-guess such decisions.

The district court, however, made no findings on the issue and

engaged in no discussion of it. Consequently, the record is not

developed enough for us to make a valid judgment on review.

Because lack of prejudice is a specific caveat in Rule 37(c)(1),

and preclusion is the death knell of plaintiff's case, we think the

issue sufficiently important to warrant the district court’s

explicit consideration.

This is not to say that findings are always required. In many

instances, the court’s deliberation is apparent or “findings may be

easily inferred from the record,” Robson v. Hallenbeck, 81 F.3d 1,

5 (1st Cir. 1996) (referring to rulings on a party's misconduct and

excuses); see also Woodworker’s Supply, Inc. v. Principal Mut. Life

Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999) (harmless error). In

David v. Caterpillar, Inc., 324 F.3d 851, 857-58 (7th Cir. 2003),

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the court noted the trial judge’s consideration of prejudice,

concluding, "Given the district court's thoughtful discussion of

this issue, we cannot say" it abused its discretion. And in

Primus, we noted, "Although ‘preclusion of expert testimony is a

grave step, not to be undertaken lightly,’ the court here acted

with due deliberation" in offsetting the exclusion by allowing

supplementation of a disclosed expert’s testimony. See 389 F.3d at

234-35 (internal citation omitted).

An expectation of focused consideration of harmlessness is

implicit, we feel, in Robson’s acknowledgment, citing Velazquez-

Rivera v. Sea-Land Service, Inc., 920 F.2d 1072, 1077-78 (1st Cir.

1990), that dismissal for a minor act of negligence in the absence

of prior warning or a showing of special prejudice would be too

harsh, but that a "pattern of unexcused noncompliance" or a

"succession of violations" would in itself justify dismissal. See

Robson, 81 F.3d at 3-4. In the absence of such circumstances, some

attention should be given to the issue of possible prejudice.

Here, however, we have no report of any such deliberation.

We therefore deem the need for remand evident. We do not wish

to restrict the court in its inquiry, which may or may not, in its

judgment, require hearing, argument, or evidence. Possible

inquiries include addressing the history of plaintiff's strategy,

and assessing whether it deems such action sufficiently blameworthy

to warrant dismissal without consideration of harmlessness;

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assaying the burden and expense that defendants have faced and

would likely face in dealing with the issue presented by the

belated June 14 disclosure; and looking closely at the impact of

any decision on concerns of court management for the present and

future caseload. The court also may wish to consider whether a

less severe sanction would be effective.

V. Materiality of the Expert Testimony

Because we deem the court’s primary holding insufficient, at

this juncture, to support summary judgment, we must consider the

effect of its alternative conclusion that, even with the proffered

expert testimony, plaintiff’s case is flawed. Noting that the

experts addressed only the condition of the forklift at the time it

was tested in 2004, the court observed that this evidence would not

assist plaintiff in proving that the machine was defective at the

time of manufacture or when the accident occurred.

Defendants argue that plaintiff is foreclosed from arguing the

merits of the expert testimony because the issue was not raised

below. Plaintiff counters that the court addressed the issue sua

sponte, preventing him from fully responding to perceived

deficiencies in the experts’ affidavits. Defendant responds that

the court’s questioning at the summary judgment hearing plainly put

plaintiff on notice that the materiality of the expert opinions was

of concern, and they further argue that plaintiff had multiple

opportunities to object to the court’s having addressed the issue.

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 We decline to referee this debate. The district court likely

gave short shrift to its alternative ruling because its Rule

37(c)(1) holding was dispositive. Given that defendants moved for

summary judgment based solely on the exclusion of expert testimony,

we think the court would have provided plaintiff additional

opportunity to support his position on the merits had it not

already determined the case should be dismissed. On remand, the

court may again reach the same outcome on the first issue, finding

that plaintiff’s late disclosure was not harmless and that the case

accordingly must be dismissed. Further discussion of the content

of the offered testimony would then be unnecessary. If, however,

the district court chooses to allow the expert testimony based on

lack of prejudice, we think the interests of justice are best

served if it reconsiders as well the cogency of that testimony. We

therefore conclude that the grant of summary judgment for

defendants must be vacated.

The judgment below is VACATED and the case is REMANDED for

further proceedings in accordance with this opinion. The parties

shall bear their own costs.

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