Andrews v. Target Pharmacy

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 16-2160
FRANK ANDREWS and ROBIN ANDREWS,
Plaintiffs, Appellants,
v.
TARGET PHARMACY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Lipez, Circuit Judges.
Edward L. Wells, Jr. on brief for appellants.
Sean J. Milano, Meredith M. Lasna, and Morrison Mahoney LLP
on brief for appellee.
October 23, 2017
SELYA, Circuit Judge. This civil action was brought in
a Massachusetts state court and removed to the federal district
court on the basis of diversity jurisdiction. See 28 U.S.C.
§§ 1332(a), 1441. Massachusetts law supplies the substantive rules
of decision. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78
(1938); Summers v. Fin. Freedom Acq. LLC, 807 F.3d 351, 354 (1st
Cir. 2015). The district court granted summary judgment in favor
of the defendant and the plaintiffs now appeal.
The facts of the case are straightforward. The
plaintiffs, Frank Andrews (Frank) and his wife Robin Andrews
(Robin), allege that the defendant negligently filled a
prescription for Frank by dispensing a dosage ten times higher
than prescribed.1 The plaintiffs further allege that Frank
unwittingly ingested these pills between September 10 and
September 13, 2009, causing him to suffer renal failure and other
harm. Frank seeks damages for pain and suffering, hospital and
medical expenses, and lost wages; Robin (who sues derivatively)
seeks damages for lost wages and loss of consortium.
We briefly rehearse the travel of the case. In the
course of pretrial discovery, the district court set July 1, 2015,
1
The plaintiffs named "Target Pharmacy" as the defendant.
The record indicates, however, that no such entity as "Target
Pharmacy" exists and that Target Corporation operates the pharmacy
(and, thus, is the proper defendant in this action). Nothing turns
on this misnomer.
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as the date for the plaintiffs' expert witness disclosures. See
Fed. R. Civ. P. 26(a)(2). This date passed without any vestige of
compliance on the plaintiffs' part. In October, the defendant
moved to preclude the plaintiffs from offering any expert
testimony. The district court granted the plaintiffs another bite
at the cherry, extending the deadline for expert witness
disclosures to December 21. See Fed. R. Civ. P. 26(a)(2).
Within the extended period, the plaintiffs identified
Dr. Steven Gabardi as a prospective expert witness. They
nonetheless failed to provide Dr. Gabardi's report to the defendant
as required by the district court's pretrial order, and they did
not name any other prospective expert witnesses.
The district court gave the plaintiffs yet a third bite
at the cherry. But this was only a partial bite: even though the
court allowed the plaintiffs another opportunity to furnish Dr.
Gabardi's report, it granted the defendant's earlier motion and
precluded the plaintiffs from offering the testimony of any expert
not identified by the December 21 deadline.
Withal, Dr. Gabardi's report was not forthcoming within
the allotted time. Bending over backwards, the district court
gave the plaintiffs a final extension to February 9, 2016, to
provide the report. This time, the plaintiffs did so.
Faced with a record dominated by the plaintiffs' blithe
disregard for deadlines, the district court reaffirmed its earlier
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order and again precluded the plaintiffs from offering any expert
testimony apart from Dr. Gabardi's testimony. The defendant
proceeded to move for summary judgment. See Fed. R. Civ. P. 56(a).
The plaintiffs immediately sought leave to reopen discovery.
In due course, the district court denied the plaintiffs'
motion to reopen discovery and granted the defendant's motion for
summary judgment. See Andrews v. Target Pharmacy #T-2292, No. 13-
cv-12268, 2016 WL 4250243, at *7 (D. Mass. August. 10, 2016). This
timely appeal ensued.
We have made no secret of our view that the court of
appeals should not wax longiloquent for no reason other than to
hear its own words resonate. See, e.g., Eaton v. Penn-Am. Ins.
Co., 626 F.3d 113, 114 (1st Cir. 2010); Collier v. City of
Chicopee, 158 F.3d 601, 604 (1st Cir. 1998); Ayala v. Union de
Tronquistas, Local 901, 74 F.3d 344, 345 (1st Cir. 1996); Holders
Capital Corp. v. Cal. Union Ins. Co. (In re San Juan Dupont Plaza
Hotel Fire Litig.), 989 F.2d 36, 38 (1st Cir. 1993). When a lower
court has accurately taken the measure of a case and articulated
its reasoning clearly and cogently, it would serve no useful
purpose for us to write at length. This is such a case.
Consequently, we affirm the judgment below for substantially the
reasons elucidated in the district court's rescript, adding only
a few specific observations.
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First: the plaintiffs' claim that they were improperly
precluded from offering expert testimony lacks any semblance of
merit. We review a challenge to a discovery-related preclusion
order for abuse of discretion, see Macaulay v. Anas, 321 F.3d 45,
51 (1st Cir. 2003), and we discern no hint of abused discretion in
this case.
To help ensure an orderly system of adjudication, the
Federal Rules of Civil Procedure provide for extensive pretrial
disclosures concerning expert witnesses and expert testimony. See
Fed. R. Civ. P. 26(a)(2). Parties disregard either these
strictures or the provisions of pretrial orders implementing them
at their peril. See Macaulay, 321 F.3d at 50. Where gross
violations occur, preclusion of expert testimony may be an
appropriate sanction. See Thibeault v. Square D Co., 960 F.2d
239, 245 (1st Cir. 1992); see also Esposito v. Home Depot U.S.A.,
Inc., 590 F.3d 72, 77-78 (1st Cir. 2009) (listing "host of factors"
to consider when determining whether a preclusion sanction is
proper). Where, as here, the sanction has serious consequences
for the disposition of the case, "the justification for it must be
comparatively more robust." Esposito, 590 F.3d at 79.
Here, the district court exhibited extraordinary
patience in the face of persistent disregard of discovery
deadlines. The plaintiffs were afforded ample opportunities to
comply with the disclosure obligations reasonably imposed by the
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district court. By and large, the plaintiffs rewarded the district
court's patience by turning a blind eye to their court-imposed
obligations. Given the absence of any credible justification for
their lapses, the prejudice to the defendant that those lapses
manifestly portended, and the adverse impact of those lapses on
the district court's ability to manage its docket, the preclusion
order was well within the wide encincture of the district court's
discretion. See id. at 78.
Second: the plaintiffs' motion for leave to reopen
discovery was too little and too late. Although the plaintiffs
belatedly asserted that their lawyer's health problems between
late 2014 and early 2015 somehow interfered with their ability to
comply with the deadlines set by the district court, they advance
no reason for failing to ask for a continuance on this basis. See
Faigin v. Kelly, 184 F.3d 67, 85 (1st Cir. 1999) ("[A] reviewing
court may attribute special significance to the party's eschewal
of a continuance and assume that the party did not require
additional time to adjust his litigation strategy."). In all
events, the stated health concerns afford no plausible
justification for flouting the December 2015 deadline. Viewing
the record as a whole, we conclude, without serious question, that
the district court did not abuse its discretion in denying the
plaintiffs' motion to reopen discovery.
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Third: despite their protestations to the contrary, the
plaintiffs' challenge to the entry of summary judgment in favor of
the defendant is unavailing. In Massachusetts, a party ordinarily
must produce "expert testimony . . . to establish medical
causation." Milward v. Rust-Oleum Corp., 820 F.3d 469, 476 (1st
Cir. 2016) (quoting Reckis v. Johnson & Johnson, 28 N.E.3d 445,
461 (Mass. 2015) (applying Massachusetts law); see Case of Canavan,
733 N.E.2d 1042, 1051 (Mass. 2000) ("Because understanding medical
causation is 'beyond the . . . knowledge of the ordinary layman
. . . proof of [such causation] must rest upon expert medical
testimony.'" (quoting Hachadourian's Case, 162 N.E.2d 663, 666
(Mass. 1959))). Here, the plaintiffs had to prove that Frank's
ingestion of the wrong dosage caused the injuries of which he
complained. That was a medical causation question that fell within
the general rule (not within the long-odds exception to it). Yet,
the plaintiffs did not offer a scintilla of expert testimony to
prove causation.2 We therefore conclude, on de novo review, see
Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 4 (1st Cir.
2010), that the court below did not err in ruling that the
plaintiffs had failed to make out a genuine issue of material fact
with respect to causation.
2
To be sure, the plaintiffs did submit Dr. Gabardi's expert
witness report. Dr. Gabardi made it crystal clear, though, that
he had not formed — and would not venture — any opinion on medical
causation.
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Fourth: the plaintiffs contend that they were entitled
to have their case heard by a medical malpractice tribunal. See
Mass. Gen. Laws ch. 231, § 60B. The statute itself belies their
contention: the defendant, operating as a pharmacy, was not a
"provider of health care" within the statutory compass. Id.
We need go no further. Though the plaintiffs make a
host of other arguments, none of them is persuasive. For the
reasons limned in the district court's lucid rescript and
supplemented here, the judgment of the district court is summarily
Affirmed. See 1st Cir. R. 27.0(c).
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