FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Gustavo A. Gelpí, Jr., U.S. District
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.
Howard, Chief Judge, Torruella and Selya, Circuit Judges.
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.
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. 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 anesthesia carelessly and
without her consent, rendering inadequate post-operative
care, and discharging her with undiagnosed neurological
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
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.
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. 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.
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 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
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").
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 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
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 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." Macaula ...