United States Court of Appeals
For the First Circuit
No. 05-2543
LIZZETTE SANTIAGO-DÍAZ,
Plaintiff, Appellant,
v.
LABORATORIO CLÍNICO Y DE REFERENCIA
DEL ESTE AND SARA LÓPEZ, M.D.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Saris,* District Judge.
Rudolph C. Campbell Valdez and Julio Gil de Lamadrid on brief
for appellant.
Arturo Díaz-Angueira, Roberto Feliberti, and Cancio, Nadal,
Rivera & Díaz, P.S.C., on brief for corporate appellee.
Igor J. Dominguez and Igor J. Dominguez Law Offices on brief
for individual appellee.
August 8, 2006
*
Of the District of Massachusetts, sitting by designation.
SELYA, Circuit Judge. On March 26, 2003, plaintiff-
appellant Lizzette Santiago-Díaz brought a diversity suit in the
United States District Court for the District of Puerto Rico, see
28 U.S.C. § 1332(a), alleging medical malpractice in connection
with the performance of a total abdominal hysterectomy. Following
more than two years of backing and filling on the plaintiff's part,
punctuated by persistent noncompliance with court orders and
discovery rules, the district judge dismissed the action with
prejudice. The plaintiff appeals. We affirm.
We need not tarry. The docket reflects that, under a
case-management order issued on August 12, 2003, the parties were
directed to adhere to the following deadlines: (i) the filing of a
discovery plan by September 8, 2003; (ii) the filing of a joint
case-management memorandum by October 6, 2003; (iii) the completion
of discovery by March 22, 2004; and (iv) the filing of a joint
pretrial order by June 7, 2004.
No discovery plan was ever filed. The defendants,1
professing a lack of cooperation on the part of the plaintiff's
attorney, filed their portions of the joint case-management
memorandum with the district court. On December 10, 2003 — more
than two months after the due date — the district court ordered the
1
We use the term "defendants" to refer to Laboratorio Clínico
y de Referencia del Este and Dr. Sara López, who are the only
appellees and, for aught that appears, the sole remaining
defendants.
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plaintiff to file her portion of the memorandum by December 19 or
face sanctions (which, the court warned, might include dismissal of
the case). When this order produced no response, the court
instructed the plaintiff to show cause why her case should not be
dismissed.
On January 22, 2004, the plaintiff replied. With respect
to timing, she asserted that she had initially filed her portion of
the joint case-management memorandum on October 9, 2003 (a date
that was beyond the due date) and had attempted, in a submission
dated December 17, 2003, to inform the court of that filing. She
explained, however, that her counsel inadvertently filed the
December submission under the wrong docket number.2 With respect
to substance, the plaintiff's submission merely stated that "[a]t
this time, there are no expert witnesses, however, Plaintiff
expects to retain one shortly." Without commenting on the
plaintiff's excuses, the district court allowed the case to
proceed.
On May 3, 2004, the defendants moved either to dismiss
the action for failure to prosecute, see Fed. R. Civ. P. 41(b), or
to enter judgment for failure to make discovery. The defendants
complained particularly that the plaintiff had neither identified
an expert witness who could substantiate her medical malpractice
2
The plaintiff offered no explanation, then or thereafter, as
to why the October submission, if duly filed with the clerk, had
not made its way into the case file.
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claims nor provided any expert reports. See Fed. R. Civ. P.
26(a)(2).
In an untimely opposition, the plaintiff effectively
conceded her failure to comply with the case-management order.
Attempting to confess and avoid, she rejoined variously that she
had not received the defendants' interrogatories; that she was
poised to complete discovery if allowed more time; that she had her
expert witnesses ready; that she had done all that she could; and
that her best-foot-forward approach to the complexities of the
litigation warranted a denial of the defendants' motion.
On June 7, 2004, the defendants submitted their portions
of the proposed joint pretrial order, complaining, however, that
they had not been able to cajole the plaintiff's participation in
the process. The plaintiff made no comparable submission.
In the same time frame, the defendants again moved for
dismissal or, in the alternative, for preclusion of any expert
testimony in the plaintiff's behalf. The defendants premised this
motion on the plaintiff's failure timely to submit her portions of
the joint case-management memorandum and pretrial order, her
refusal to engage with the defendants' counsel on those
submissions, her unwillingness to announce her expert witnesses,
and her failure to produce an expert report. The plaintiff
received an extension of time to oppose this motion and, on July 6,
2004, inexplicably filed copies of the same opposition papers that
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she previously had submitted in response to the original
dispositive motion.
Citing the plaintiff's persistent flouting of court
orders and rules, the district judge granted the defendants' motion
to preclude the plaintiff's expert testimony. The judge
simultaneously ordered the plaintiff to show cause why the
complaint should not be dismissed given her inability to
substantiate her claims through expert testimony. The plaintiff
responded that she had both identified her expert and provided his
report to the defendants. In an effort to validate that claim, she
submitted the curriculum vitae of José A. Rodríguez Robles, M.D.
(Dr. Rodríguez), along with a one-page statement dated October 26,
2004. This statement, even if taken at face value, did not by any
stretch of the most fertile imagination meet the criteria set by
the Civil Rules for expert witness reports. See Fed. R. Civ. P.
26(a)(2)(B).
The defendants disputed the plaintiff's claim of
compliance on divers grounds. Equally unimpressed, the district
court concluded that the plaintiff had failed to show good cause
and dismissed the action on August 19, 2005, pursuant to Fed. R.
Civ. P. 16(f), Local Rule 16(g), and its inherent authority. This
timely appeal followed.
We begin our substantive discussion with the bedrock
proposition that federal courts possess wide-ranging power to
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sanction parties who repeatedly balk at complying with court-
imposed deadlines. See, e.g., Nat'l Hockey League v. Metro. Hockey
Club, 427 U.S. 639, 643 (1976). This authority extends to the
enforcement of case-management orders. Tower Ventures, Inc. v.
City of Westfield, 296 F.3d 43, 45-46 (1st Cir. 2002). Thus, "when
noncompliance occurs, the court may choose from a broad universe of
possible sanctions." Id. at 46.
Where, as here, a party aspires to disclose expert
evidence out of time and the trial court opts to exclude it, we
review that determination for abuse of discretion. See, e.g.,
Macaulay v. Anas, 321 F.3d 45, 51 (1st Cir. 2003). This standard
of review obtains both as to the finding that a discovery violation
occurred and as to the appropriateness of the sanction selected.
See Thibeault v. Square D Co., 960 F.2d 239, 243 (1st Cir. 1992).
A party who strives to overturn the trial court's exercise of its
discretion with respect to such a sanction order must carry a heavy
burden. See Gagnon v. Teledyne Princeton, Inc., 437 F.3d 188, 191
(2006); Macaulay, 321 F.3d at 51; see also Torres-Vargas v.
Pereira, 431 F.3d 389, 392 (1st Cir. 2005).
On appeal, the plaintiff concentrates her fire on the
order of preclusion. She asseverates that she substantially
complied with her discovery obligations through submission of Dr.
Rodríguez's one-page "written report" and that, in all events, any
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delinquency on her part did not prejudice the defendants. These
asseverations lack force.
The plaintiff's argument that she substantially complied
with her expert witness discovery obligations is substantially
incorrect. Rule 26(a)(2)(A) requires a party to "disclose to other
parties the identity of any person who may be used at trial to
present [expert] evidence." This disclosure must be "accompanied
by a written report," which is to 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.
Fed. R. Civ. P. 26(a)(2)(B). The disclosures are to be made "at
the times and in the sequence directed by the [district] court."
Fed. R. Civ. P. 26(a)(2)(C).
In the case at bar, the district court augmented this
regime through its case-management order. That order prescribed
the information that the case-management memorandum was to cover
and required the plaintiff, among other things, to announce her
expert witness within the structure of the case-management
memorandum and, when doing so, to "provide a curriculum vitae and
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report containing a discussion of elements of cause and effect,
diagnosis, and prognosis." The case-management order also required
the parties to file a proposed joint pretrial order, which was to
include all the disclosures anent expert witnesses mandated by both
the Civil Rules and the Local Rules, "including a brief and general
statement" about the anticipated testimony of each such expert
witness. D.P.R.R. 16(d)(8).
Here, the discovery violations are patent. The
plaintiff's filings were consistently out of time.3 Furthermore,
the substance of the belated disclosures — one consisting of one
line, the other consisting of one page — does not come within a
country mile of satisfying the requirements of either the case-
management order or the Civil Rules. After all, the case-
management order and Rule 26(a)(2)(B) both called for the parties
to make explicit and detailed expert disclosures. The plaintiff's
one-line statement did not even identify an expert, let alone
satisfy the mandated disclosure requirements. In short, that
attempt at compliance was too little as well as too late. See
Rosario-Diaz v. Gonzalez, 140 F.3d 312, 315 (1st Cir. 1998)
3
To be sure, the plaintiff says that she did essay a filing in
October of 2003 — but that filing (itself late) never made its way
to the docket. There is no indication that the plaintiff
diligently tried to monitor the docket to ensure that the record
properly reflected her filing. See, e.g., Rosario-Diaz v.
Gonzalez, 140 F.3d 312, 314 (1st Cir. 1998) (explaining that a
party is "fully chargeable with knowledge of what the docket
disclosed").
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(stating that "litigants have an unflagging duty to comply with
clearly communicated case-management orders").
The plaintiff did not elaborate on her proposed expert
evidence until (on the most favorable reading of the record) seven
months after the close of discovery. At that time, she identified
her expert witness. The one-page statement of the expert's
opinion, submitted to the court more than one month later, did not
by any means satisfy her obligation to provide an expert report.
See Fed. R. Civ. P. 26(a)(2)(B). That statement consists of two
conclusory paragraphs. Among other deficiencies, it does not
contain a list of Dr. Rodríguez's publications; it does not spell
out his compensation arrangement; and it does not enumerate the
other cases in which he testified as an expert. These are
significant omissions. See Pena-Crespo v. Puerto Rico, 408 F.3d
10, 13-14 (1st Cir. 2005). To add insult to injury, it was not
until March 2005, one year after the close of discovery and several
months after the preclusion of her expert evidence, that plaintiff
finally produced a more comprehensive expert statement, which she
now seeks to use in support of her appellate argument.
The question, then, reduces to the legitimacy of the
sanction imposed. The baseline rule is that "the required sanction
in the ordinary case is mandatory preclusion." Lohnes v. Level 3
Commc'ns, Inc., 272 F.3d 49, 60 (1st Cir. 2001) (citation and
internal quotation marks omitted); see Fed. R. Civ. P. 37(c)(1)
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(providing that a party who "without substantial justification
fails to disclose information required by Rule 26(a) . . . is not,
unless such failure is harmless, permitted to use" the non-
disclosed witness or information in later proceedings).
Still, preclusion is not a strictly mechanical exercise;
district courts have some discretion in deciding whether or not to
impose that onerous sanction. See, e.g., Jackson v. Harvard Univ.,
900 F.2d 464, 468-69 (1st Cir. 1990). In passing upon a district
court's decision to order preclusion, an appellate court should
consider an array of 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, 321 F.3d at
51.
Here, the plaintiff's need for expert testimony cuts in
her favor. The remaining factors, however, all cut in the opposite
direction. First and foremost, the history of the litigation casts
a pall over the plaintiff's position. Her dereliction was both
obvious and repeated. We have warned that "a litigant who ignores
a case-management deadline does so at his peril." Rosario-Diaz,
140 F.3d at 315. We likewise have warned that a party's "violation
of a time-specific order [is] not cured by subsequent compliance at
his leisure." Young v. Gordon, 330 F.3d 76, 82-83 (1st Cir. 2003).
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The preclusion order in this case illustrates that chickens
sometimes come home to roost.4
Second, the plaintiff advanced no plausible (let alone
substantial) justification for her shortcomings. Any colorable
excuse must be culled from the plaintiff's jumbled protest that she
was paralyzed by a case-management order that was designed for
multiple defendants. But the need for prompt witness
identification and disclosure of her proposed expert testimony
should have been evident no matter how few or how many defendants
ultimately remained in the case.
Third, the plaintiff's importuning that her noncompliance
caused no harm to the defendants is wishful thinking. The record
is replete with instances in which the plaintiff refused to work
cooperatively with the defendants in creating an efficient
discovery process. Furthermore, the plaintiff's foot-dragging in
announcing her expert and providing his report deprived the
defendants of the opportunity to depose him, impeach his
credentials, pursue countering evidence, or generally prepare their
defenses. Factoring in the time and expense caused by the
plaintiff's misfeasance, see Primus v. United States, 389 F.3d 231,
4
The record makes manifest that the plaintiff was guilty of
several discovery violations besides those related to her expert
witness (e.g., she never submitted or participated in the drafting
of the pretrial order, nor did she ever furnish responses to the
defendants' interrogatories). While we need not dwell on these
peccadillos, they are part and parcel of the history of the
litigation.
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236 (1st Cir. 2004), the harm to the defendants is, as the district
court determined, palpable.5
Last — but far from least — the district court has an
interest in the efficient management of its docket. Whenever a
party, without good cause, neglects to comply with reasonable
deadlines, the court's ability to manage its docket is compromised.
Courts are entitled to take sensible measures to guard against such
debilitating occurrences. See Young, 330 F.3d at 83 (reaffirming
the court's "institutional interest" in ensuring compliance with
discovery deadlines).
The short of it is that the facts of this case fit well
within the factual constellations that have supported the
imposition of preclusionary sanctions in other cases. See, e.g.,
Primus, 389 F.3d at 234-36; Macaulay, 321 F.3d at 50-53;
Wilson v. Bradlees of New Engl., Inc., 250 F.3d 10, 19-21 (1st Cir.
2001); Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo y
Beneficiencia, 248 F.3d 29, 31-36 (1st Cir. 2001). Consequently,
the district court did not abuse its discretion in ruling that the
plaintiff's failures timely to disclose the identity of her expert
and to furnish a proper expert witness report were both
5
The plaintiff's argument that there was no prejudice to the
defendants because discovery was in an "infant stage" turns the
discovery schedule on its head. For aught that appears, the lack
of progress in discovery was caused entirely by the plaintiff's
dilatoriness.
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substantially unjustified and harmful. Accordingly, we uphold the
preclusion order.
That effectively ends the matter. Having concluded that
the district court's preclusion of the plaintiff's expert evidence
was well within its discretion, it follows, virtually a fortiori,
that the lower court did not err in dismissing the action. We
explain briefly.
In proving the elements of a medical malpractice case
under Puerto Rico law, a plaintiff generally is required to draw
upon expert testimony. See, e.g., Marcano Rivera v. Turabo Med.
Ctr. P'ship, 415 F.3d 162, 168 (1st Cir. 2005). With no expert
testimony available to the plaintiff, dismissal was an appropriate
next step. See Ortiz-Lopez, 248 F. 3d at 36-37 (dismissing action
because, without a medical expert, the plaintiffs could not prove
their claims); cf. Thibeault, 960 F.2d at 241 (holding dismissal
appropriate when plaintiff conceded that he could not make out a
case without the precluded expert evidence). At any rate, the
record is barren of any showing as to why the action should not be
dismissed in light of the limited evidentiary avenues still open to
the plaintiff.
We need go no further. The record reflects that the
plaintiff, on multiple occasions, failed to comply with her
discovery obligations. The district judge displayed the utmost
patience with the plaintiff in the face of continued recalcitrance.
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On this record, there is no principled way to find that the court
abused its discretion either in precluding the plaintiff's use of
a late-disclosed expert or in dismissing her action.
Affirmed.
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