Genereux v. Raytheon Company

United States Court of Appeals
For the First Circuit
No. 13-1921
BARRY GENEREUX ET AL.,
Plaintiffs, Appellants,
v.
RAYTHEON COMPANY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Torruella and Selya, Circuit Judges,
and McAuliffe,* District Judge.
Ruben Honik, with whom Kevin W. Fay, Golomb & Honik, P.C.,
Michael B. Bogdanow, and Meehan, Boyle, Black & Fitzgerald, P.C.
were on brief, for appellants.
Jonathan M. Albano, with whom Janice W. Howe, Bingham
McCutchen LLP, James F. Kavanaugh, Jr., Ronald M. Jacobs, and Conn,
Kavanaugh, Rosenthal, Peisch & Ford, LLP were on brief, for
appellee.
John Pagliaro and Martin J. Newhouse on brief for New England
Legal Foundation and Associated Industries of Massachusetts, amici
curiae.
June 10, 2014
*
Of the District of New Hampshire, sitting by designation.
SELYA, Circuit Judge. A familiar bit of homespun
philosophy warns of the perils of attempting to change horses in
midstream. This admonition applies in litigation as well as in
life. Thus, when a litigant commits to a theory of the case and
sticks to that theory past the point of no return, he cannot
thereafter switch to a different theory simply because it seems
more attractive at the time. That is among the lessons of this
appeal.
I. BACKGROUND
We rehearse the facts in the light most favorable to the
plaintiffs, who opposed summary judgment below. See RTR Techs.,
Inc. v. Helming, 707 F.3d 84, 87 (1st Cir. 2013). In the process,
we reserve many important details for our later discussion of the
issues.
Beryllium is a useful but hazardous substance, and even
modest exposure can cause a malady known as Chronic Beryllium
Disease (CBD). This malady, caused exclusively by beryllium
exposure, is characterized by inflammation and scarring of lung
tissue. It can seriously impair organ function. Although there is
no known cure for CBD, early detection and treatment can ameliorate
its ravages.
The pathogenesis of CBD begins with beryllium
sensitization (BeS). Even though BeS is regarded as an abnormal
medical finding, it can be asymptomatic and is typically not
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treated. Nevertheless, persons with BeS should receive periodic
clinical screenings to detect disease onset.1 Those persons who
are diagnosed with BeS alone are at a high risk of developing CBD
during their lifetimes.
Since early detection of BeS is one key to effective
treatment of CBD, current medical practice calls for all persons
exposed to beryllium above background levels to be screened for BeS
every three to five years using a beryllium lymphocyte
proliferation test (BeLPT). The BeLPT sometimes yields false
positives, so BeS is defined by no fewer than two positive BeLPT
results. Because BeS and CBD can develop after a long latency
period, those persons registering negative BeLPT results should be
re-tested throughout their lifetimes.
We move now from the general to the specific. The
plaintiffs in this case are various members of the Bettuchy,
Balint, and Genereux families. The Bettuchys and the Balints are
the named plaintiffs in a putative class action filed in the United
States District Court for the District of Massachusetts, invoking
federal diversity jurisdiction under the special jurisdictional
provisions of the Class Action Fairness Act, 28 U.S.C.
§ 1332(d)(2). Their complaint alleged that the defendant, Raytheon
Company, endangered the health of the plaintiffs and others
1
Indeed, some persons are simultaneously diagnosed with BeS
and CBD.
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similarly situated by negligently exposing them to beryllium used
in the manufacturing process at its plant in Waltham,
Massachusetts.2
The plaintiffs seek to represent two proposed classes.
One comprises all persons who worked at the Waltham plant for at
least one month prior to December 31, 1996. The other comprises
all persons who lived with members of the first class and thus were
subject to take-home beryllium exposure. Persons already diagnosed
as having CBD (like Suzanne Genereux, see supra note 2) are
excluded from both proposed classes.
The action seeks to compel Raytheon to establish a trust
fund to finance appropriate medical monitoring for both classes of
plaintiffs. As the plaintiffs envision it, such medical monitoring
would include regular BeLPT testing.
Following extensive pretrial discovery and work devoted
to a narrowing of the issues, the district court granted summary
judgment in favor of Raytheon. See Genereux v. Hardric Labs.,
Inc., 950 F. Supp. 2d 329, 341 (D. Mass. 2013). This timely appeal
ensued.
2
The district court consolidated this class action with an
earlier, non-class action brought by various members of the
Genereux family against Raytheon. See generally Genereux v. Am.
Beryllia Corp., 577 F.3d 350 (1st Cir. 2009). By that time,
Raytheon had settled with Suzanne Genereux (who had contracted
CBD). The Genereux plaintiffs, other than Suzanne Genereux, are
now named plaintiffs here and assert that they are encompassed
within the classes that the plaintiffs seek to represent.
-4-
II. ANALYSIS
We review de novo a district court's entry of summary
judgment. See Estate of Hevia v. Portrio Corp., 602 F.3d 34, 40
(1st Cir. 2010). In assessing the propriety of such a disposition,
we must take the record in the light most hospitable to the
nonmovants (here, the plaintiffs) and draw all reasonable
inferences in their favor. See Geshke v. Crocs, Inc., 740 F.3d 74,
76 (1st Cir. 2014). "If — and only if — the record, viewed in this
light, discloses the absence of any genuine issue of material fact
and reveals the movant['s] entitlement to judgment as a matter of
law, we will affirm the summary judgment order." Kouvchinov v.
Parametric Tech. Corp., 537 F.3d 62, 66 (1st Cir. 2008); see Fed.
R. Civ. P. 56.
Because this suit was brought in diversity jurisdiction,
see 28 U.S.C. § 1332(d)(2), state law supplies the substantive
rules of decision. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78
(1938); Katz v. Pershing, LLC, 672 F.3d 64, 72 (1st Cir. 2012).
The parties (who agree on little else) proceed on the shared
premise that Massachusetts law controls. Given the reasonableness
of this premise, we readily accept it. See Katz, 672 F.3d at 72.
The cornerstone of an action for medical monitoring under
Massachusetts law is the decision of the Massachusetts Supreme
Judicial Court (SJC) in Donovan v. Philip Morris USA, Inc. (Donovan
I), 914 N.E.2d 891 (Mass. 2009). There, a class of plaintiffs who
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shared a history of at least twenty pack-years of smoking3 but who
had not yet developed lung cancer, sought to compel the defendant
cigarette manufacturer to provide a court-supervised medical
surveillance program for early cancer detection. See id. at 895.
Although the suit did not fit the traditional tort mold because
none of the plaintiffs actually had contracted cancer, the SJC
acknowledged that Massachusetts tort law "must adapt to the growing
recognition that exposure to toxic substances and radiation may
cause substantial injury which should be compensable even if the
full effects are not immediately apparent." Id. at 901. The court
went on to rule that the cost of medical monitoring may be
recoverable in a tort suit under Massachusetts law. See id.
The Donovan I court took pains to tether its holding to
a doctrinal mooring: a combination of the defendant's failure to
meet an appropriate standard of care, a causal connection between
that failure and the plaintiffs' injuries, and resulting damages.
See id. at 898-99. To identify the injury in the absence of
evidence that a plaintiff actually has cancer, the court was
careful to demand a showing that some subcellular or other
physiological change has put him at increased risk. See id. at
901-02. Under the cause of action recognized in Donovan I,
3
As the SJC used the term, "pack-year" is the product of the
number of years smoked and the average number of packs of
cigarettes smoked per day over that period. See Donovan I, 914
N.E.2d at 895 n.6. For example, three years of smoking an average
of two packs per day would be six pack-years.
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increased epidemiological risk of illness caused by exposure,
unaccompanied by some subcellular or other physiological change, is
not enough to permit recovery in tort.
Beyond this particular cause of action, the SJC ruminated
about another possibility. It pondered whether, if a manufacturer
exposes a person to a dangerous carcinogen, a cause of action for
medical monitoring would lie even though no subcellular or other
physiological change had yet occurred. Id. at 901. The court made
no ruling on this hypothetical set of facts but, rather, left the
question "for another day." Id.
Against this backdrop, we turn to the plaintiffs'
assignments of error.
A. The Plaintiffs' Principal Theory: Subcellular Change.
The plaintiffs begin with a claim that their case fits
snugly within the confines of Donovan I. The district court
disagreed. See Genereux, 950 F. Supp. 2d at 340-41. The testimony
of the plaintiffs' main expert, Dr. Lee S. Newman, sits at the
fulcrum of the dispute.
Dr. Newman opined that BeS is the first manifestation of
subcellular change resulting from beryllium exposure. He explained
that, if the entire membership of both of the proposed plaintiff
classes were to be tested, somewhere between one percent and twenty
percent of those persons would be found to have BeS. Since
beryllium exposure is the only known cause of BeS, this one percent
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to twenty percent likelihood puts the plaintiff classes at
appreciably higher risk of contracting CBD than a randomly selected
baseline population.
Dr. Newman could not confirm, however, that any named
plaintiff had as yet contracted BeS.4 By the same token, he could
not identify any particular member of either class known to have
developed BeS.
The plaintiffs also point to their expert's testimony
that all plaintiffs "are now at a significantly increased risk for
the development of beryllium related health effects in relation to
an unexposed population." In maintaining that this testimony is
sufficient to bring them within the compass of Donovan I, they try
to draw a parallel to expert opinion provided at a later stage of
the Donovan litigation. This effort fails.
In Donovan I, the SJC answered questions transmitted by
a federal district court. See Mass. S.J.C. Rule 1:03. In its
subsequent class certification ruling, the federal district court
4
The plaintiffs note that one of the named plaintiffs, Claire
Balint, experienced a single positive BeLPT result, which they say
may be indicative of subcellular change. This observation is
beside any relevant point for at least two reasons. First, it was
not relied on below and, thus, it has no traction here. See
Teamsters Union, Local No. 59 v. Superline Transp. Co., 953 F.2d
17, 21 (1st Cir. 1992) ("If any principle is settled in this
circuit, it is that, absent the most extraordinary circumstances,
legal theories not raised squarely in the lower court cannot be
broached for the first time on appeal."). Second, the plaintiffs'
own expert testified that BeS is defined by two positive BeLPTs;
one is not enough to show subcellular change.
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relied on expert testimony that "everyone with a twenty pack-year
smoking history has suffered subcellular harm [which] necessarily
mean[s] increased risk of lung cancer." Donovan v. Philip Morris
USA, Inc. (Donovan II), 268 F.R.D. 1, 16 (D. Mass. 2010) (emphasis
in original). Here, however, the class members share no such
universal harm. In sharp contrast to Donovan II, the expert
testimony in this case shows only that every plaintiff faces a
"significantly increased risk" of harm. Risk and harm are two
materially different concepts, and Dr. Newman disclaimed any
ability to state that any one plaintiff, named or otherwise, had
already suffered harm (that is, subcellular or other physiological
change). Donovan II is, therefore, of no help to the present
plaintiffs.
The bottom line is that the summary judgment record
discloses no evidence that any plaintiff — named or unnamed,
employee class or take-home class — has as yet developed BeS. This
gap in the proof is fatal to the plaintiffs' principal theory of
liability. The plaintiffs bear the burden of producing evidence
sufficient to preclude summary judgment, see Certain Interested
Underwriters at Lloyd's, London v. Stolberg, 680 F.3d 61, 65 (1st
Cir. 2012), and they have not carried that burden here. Donovan I
defines actionable injury in the medical monitoring milieu in terms
of subcellular or other physiological change, see 914 N.E.2d at
-9-
901-02, and the record reveals no significantly probative evidence
of such an injury here.
B. The Plaintiffs' Alternative Theory.
In an endeavor to obscure the portent of this lack of
evidence, the plaintiffs assign error to the district court's
rejection of an alternative theory of liability. They argue that
a cause of action for medical monitoring under Massachusetts law
does not require a showing of subcellular or other physiological
change. This argument has two branches.
The first branch of the argument posits that Donovan I
did not require a showing of subcellular or other physiological
change as an element of a cause of action for medical monitoring.
This theory rests on a strained attempt to recharacterize the SJC's
discussion of "subcellular change" as mere dictum. The plaintiffs
insist that policy considerations — principally the interest in
allowing persons who have been placed at risk of harm by a
defendant's conduct to get appropriate medical attention before it
is too late — justify such a recharacterization.
The plaintiffs read Donovan I through rose-colored
glasses. In that decision, the SJC made pellucid that it was
holding only that a cause of action for medical monitoring would
lie if a plaintiff could make a showing of subcellular or other
physiological change.
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To begin, the court listed this requirement as the third
of seven elements of the approved cause of action. See id. at 902.
Later in the opinion (when discussing the application of statutes
of limitations), the court referenced "physiological change" as a
triggering point for accrual of the cause of action. Id. at 903.
To cinch matters, the court made it abundantly clear that it had
considered the possibility of allowing a cause of action based on
mere increased risk, but opted to leave that question "for another
day." Id. at 901.
Where state tort law is at issue, policy considerations
are best reconciled by state courts. The SJC is the final arbiter
of Massachusetts law, and a federal court sitting in diversity
jurisdiction has no roving writ to rewrite that court's
pronouncements about state law. See Jones v. Secord, 684 F.3d 1,
10-11 (1st Cir. 2012). Nor can a federal court make an end run
around this boundary by relabeling as dictum what is undeniably a
part of a state court's holding. Consequently, we decline the
plaintiffs' brash invitation to cast aside the SJC's unambiguous
language.
The second branch of the plaintiffs' argument implicates
the question that the SJC "le[ft] for another day," that is, the
question of whether a cause of action for medical monitoring might
lie when "no symptoms or subclinical changes have occurred."
Donovan I, 914 N.E.2d at 901. This is precisely the plaintiffs'
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situation, but the court below concluded that they had not
preserved a claim under this alternative theory. See Genereux, 950
F. Supp. 2d at 340. Accordingly, the court refused to consider the
claim on its merits. See id.
In reaching the conclusion that the potential theory of
liability that the SJC had "le[ft] for another day" had not been
preserved, the court relied heavily on a status conference held
after the summary judgment motion had been fully briefed (but
before it was argued). See id. at 333-34. At that conference,
which was designed to frame the issues presented by the pending
summary judgment motion, the court stated its understanding that no
claim based on the question that the SJC had "le[ft] for another
day" was being pressed. Plaintiffs' counsel agreed unreservedly.
See id.
The plaintiffs labor to reinvent the April 26, 2013
status conference: they tell us that no such disclaimer took place.
But the district court wisely arranged to have a court reporter
record the status conference, and the transcript belies the
plaintiffs' exercise in revisionist history.
The district court was meticulous in expressing its
understanding of the scope of the action. The court stated its
understanding not once, but repeatedly; and plaintiffs' counsel
concurred in the court's statement each and every time. Examples
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are rife. For present purposes, however, we think it suffices to
offer a few illustrations.
C The court twice described the issue that Donovan
I left open and stated that it did not read the
plaintiffs' complaint as presenting that issue.
Plaintiffs' counsel agreed.
C The court noted that should Raytheon prevail on
its summary judgment motion, "the plaintiffs
might be able to file another case . . . on
behalf of a class which has not experienced
subcellular change." To this, plaintiffs'
counsel responded that the court had mapped out
"an eminently reasonable way to proceed."
C After some potentially confusing dialogue, the
court once again said that it did not regard the
issue left open by Donovan I as properly before
it. Plaintiffs' counsel replied: "I think that's
right, Judge . . . I mean, in candor, if you were
to determine, on a summary judgment basis, that
one or another of the elements from [Donovan I]
can't be satisfied in the case, then I think it
would be dispositive."
C The district judge later confirmed that "I don't
plan to decide the issue the SJC said it 'left
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for another day'" and reiterated that, on the
summary judgment motion, he would be deciding
whether or not the plaintiffs had made out a
genuine issue of material fact as to the seven
elements specified in Donovan I. Plaintiffs'
counsel rejoined: "I agree, your Honor . . . ."
C Using a belt and suspenders approach, the judge
again sought assurances that the plaintiffs'
theory of the case required proof of already-
incurred subcellular changes. Plaintiffs'
counsel provided such an assurance, responding
that the plaintiffs' claim was that subcellular
changes were already present. He continued, "I
think the [case is] still within the description
of [Donovan I] . . . . [Y]ou may tell me that
. . . the case really does squarely fall within
the question that [Donovan I] didn't reach.
Today I don't think that's the case . . . ."
In complex cases, considerations of both fairness and
efficiency dictate that a trial judge use his best efforts to
winnow and clarify the issues. In this case, Judge Wolf did
exactly what was required. He was relentless in his insistence on
ensuring that the parties shared a common vision of what issues
were to be adjudicated; and he was fully entitled to rely on
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counsel's repeated assurances that the issue that the Donovan I
court had "le[ft] for another day" was not in the case.
Plaintiffs' counsel had multiple opportunities to expound
a theory of the case that encompassed this issue. He likewise had
multiple opportunities to correct the judge's repeated declarations
that the motion for summary judgment did not require adjudication
of the question that the SJC had "le[ft] for another day."
Plaintiffs' counsel let all of these opportunities slide. And far
from disputing the court's understanding, counsel embraced it.
To be sure, there are snippets in the transcript that, if
taken in isolation, might sow the seeds of doubt. But context is
important, and the status conference transcript, read as a whole,
is transparently clear: the plaintiffs told the court that they
were not pursuing a theory based on the question that the SJC had
"le[ft] for another day." The transcript cannot fairly be read in
any other way.
There is one loose end. The plaintiffs argue weakly that
the issue that the SJC "le[ft] for another day" was raised (and
thus preserved) in the amended class complaint and/or their written
opposition to Raytheon's motion for summary judgment. But both the
amended class complaint and the written opposition were filed well
before the status conference, and, in all events, the particular
passages to which the plaintiffs allude are freighted with
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ambiguities. Only the most flattering reading of those papers
lends the slightest support to the plaintiffs' current claims.
In the end, we need not parse these papers. At the
status conference, plaintiffs' counsel time and again expressly
represented to the court that the plaintiffs' case depended on
their ability to prove subcellular change. As we have said before
(and today reaffirm), "[w]e consider an express representation by
an officer of the court to be a solemn undertaking, binding on the
client." CMM Cable Rep., Inc. v. Ocean Coast Props., Inc., 48 F.3d
618, 622 (1st Cir. 1995); accord Ungar v. Arafat, 634 F.3d 46, 50
n.2 (1st Cir. 2011); United States v. Coady, 809 F.2d 119, 121 (1st
Cir. 1987).
The short of it is that, during the status conference,
counsel made clear and affirmative representations to the effect
that the issue of whether a cause of action for medical monitoring
might lie without proof of subcellular or other physiological
change was not in the case. Where, as here, counsel makes such
representations to the trial court and to the lawyers for the
opposing party, neither he nor his clients can complain when the
trial court takes them at their word. See Uncle Henry's Inc. v.
Plaut Consulting Co., 399 F.3d 33, 49 (1st Cir. 2005); cf. Rivera-
Velázquez v. Hartford Steam Boiler Insp. & Ins. Co., ___ F.3d ___,
___ (1st Cir. 2014) [No. 13-1301, slip op. at 10] (explaining that
"in litigation matters, lawyers act for their clients," with the
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result that the lawyer's actions are customarily binding on the
party). Thus, the representations made at the status conference
overrode any contrary suggestion that might have been contained in
the plaintiffs' earlier filings.
That ends this aspect of the matter. The plaintiffs made
a strategic decision to press a theory of the case that relied on
the elements of the cause of action explicitly recognized in
Donovan I. That theory having failed, they cannot now disavow
their earlier decision and attempt to change horses midstream in
hopes of finding a swifter steed.
C. The Disputed Procedural Ruling.
There is one final issue, which involves the dimensions
of the summary judgment record. For the purpose of opposing
summary judgment, the plaintiffs wanted to rely upon a supplemental
expert witness declaration (the 2012 Declaration) submitted to the
district court in support of their motion for class certification.
Raytheon countered by moving to strike the 2012 Declaration from
the summary judgment record. In its motion, Raytheon noted that
the 2012 Declaration had not been filed until some thirteen months
after the deadline for expert witness submissions agreed to by the
parties and confirmed in the district court's scheduling order.
The district court granted the motion to strike.
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The plaintiffs assign error.5 They argue that their
reliance on the tardily filed 2012 Declaration worked no prejudice.
For good reason, the Civil Rules cede considerable
control over discovery to district courts. See Fed. R. Civ. P. 16,
26, 37. This web of rules "permits district courts, among other
things, to set temporal deadlines for the identification of experts
and the disclosure of their opinions." Martínez-Serrano v. Quality
Health Servs. of P.R., Inc., 568 F.3d 278, 283 (1st Cir. 2009).
When a party flouts such a deadline, one customary remedy is
preclusion. See Macaulay v. Anas, 321 F.3d 45, 50 (1st Cir. 2003);
Thibeault v. Square D Co., 960 F.2d 239, 246-48 (1st Cir. 1992);
see also Fed. R. Civ. P. 37(c)(1). But preclusion is not
automatic, and a lapse may be excused if the court determines that,
in the particular circumstances, a different remedy is more
condign. See Macaulay, 321 F.3d at 50; see also Fed. R. Civ. P.
37(c)(1)(C).
We review a district court's choice of sanction for late
submissions under a deferential abuse of discretion standard. See
Macaulay, 321 F.3d at 51 (citing Nat'l Hockey League v. Metro.
Hockey Club, Inc., 427 U.S. 639, 642 (1976) (per curiam)). In
5
At sundry times, the plaintiffs inveigh against the district
court for rejecting their attempt to file an untimely and
unauthorized surreply brief and for denying their request to
present live evidence at the hearing on summary judgment. These
remonstrances are unaccompanied by any developed argumentation and,
therefore, we deem them waived. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).
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conducting this tamisage, we consider the totality of the
circumstances, including the overall history of the litigation, the
importance of the precluded evidence, the justification (or lack of
justification) for the delay, the nature and extent of prejudice to
the other side, and the impact of the failure to comply with the
discovery deadline on the district court's docket. See Esposito v.
Home Depot U.S.A., Inc., 590 F.3d 72, 78 (1st Cir. 2009). Here,
the plaintiffs focus with laser-like intensity on an asserted lack
of prejudice.
The plaintiffs' argument misses the mark for at least
three reasons. First, the presence or absence of prejudice is only
one of a myriad of factors that should be considered. See id. The
plaintiffs virtually ignore all of the other relevant factors and,
critically, proffer no explanation at all for the late submission.
See Macaulay, 321 F.3d at 52 (affirming preclusion where "the
appellant ha[d] not advanced any real justification for [the] tardy
emergence" of a new expert report).
Second, the district court could reasonably have
concluded that prejudice to Raytheon would result from allowing the
plaintiffs to use the out-of-time 2012 Declaration. After all,
Raytheon deposed the expert and probed his opinions long before the
2012 Declaration emerged, and that ground would have to be
repastinated in light of the expert's newly advanced position. See
Santiago-Díaz v. Laboratorio Clínico Y De Referencia Del Este, 456
-19-
F.3d 272, 277 (1st Cir. 2006) (weighing need to redo discovery as
part of analysis of prejudice). So, too, its own experts likely
would have to be re-interviewed. Taking new depositions and re-
interviewing experts would undoubtedly increase Raytheon's
expenses, a circumstance that can be considered as part of the
prejudice calculus. See id.; Primus v. United States, 389 F.3d
231, 236 (1st Cir. 2004).
Last — but far from least — the plaintiffs' argument
overlooks "the court's [strong] independent interest in
administering its docket." Tower Ventures, Inc. v. City of
Westfield, 296 F.3d 43, 46 (1st Cir. 2002). This is complex class
action litigation, and the district court has the right — indeed,
the duty — to ensure that such litigation proceeds in an orderly
manner. Holding the parties to the strictures of a scheduling
order helps to achieve this goal.
To say more would be pointless. Given the totality of
the circumstances, it beggars credulity for the plaintiffs to argue
that the district court abused its discretion in striking the
egregiously late 2012 Declaration.6
6
At the expense of carting coal to Newcastle, we add that
allowing consideration of the 2012 Declaration would have been
unlikely to affect the disposition of the case. The plaintiffs
invite us to read the declaration's ambiguous statement that
"beryllium causes subcellular changes" to mean that beryllium
always causes subcellular changes. However, we agree with the
district court that, read in the context of the declaration as a
whole, the statement is better understood to mean that beryllium
can cause subcellular changes. See Genereux, 950 F. Supp. 2d at
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III. CONCLUSION
We need go no further. We applaud the district court's
handling of this complicated case and, for the reasons elucidated
above, the judgment is
Affirmed.
337 n.3. Understood in this sensible way, the 2012 Declaration
adds nothing to the plaintiffs' asseverational array.
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