          United States Court of Appeals
                     For the First Circuit


No. 18-1991

                     AGLAED GONZÁLEZ-RIVERA,

                      Plaintiff, Appellant,

                               v.

  CENTRO MÉDICO DEL TURABO, INC., d/b/a Centro Ambulatorio HIMA
      San Pablo Caguas, d/b/a HIMA San Pablo Caguas, et al.,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]


                             Before

                      Howard, Chief Judge,
              Torruella and Selya, Circuit Judges.


     David 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.


                          July 19, 2019
            SELYA, Circuit Judge.        Scheduling 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.

            The 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.1         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



     1 The defendants include Omega Anesthesia, PSC; Grupo HIMA
San Pablo, Inc.; Dr. Héctor Berríos-Echevarría; Dr. Francisco
Golderos-Sanabria; and Dr. Geovannie Marcano-Centeno.


                                    - 2 -
anesthesia     carelessly        and     without       her     consent,     rendering

inadequate     post-operative          care,     and    discharging        her   with

undiagnosed neurological damage.

             After    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 year.

             Within 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.

             By 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.


                                        - 3 -
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. Lasalle's

exclusion.2

                When 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



         2
       For the most part, these rulings are not challenged on
appeal. Although the plaintiff's brief makes passing reference to
the district court's exclusion of Dr. Lasalle, there is no mention
of that exclusion order in her notice of appeal. Thus, we lack
jurisdiction to consider that order.        See Rojas-Velàquez v.
Figueroa-Sancha, 676 F.3d 206, 209 (1st Cir. 2012) (noting that
"the jurisdiction of the court of appeals normally is limited to
review of orders and judgments specifically described in the notice
of appeal"); see also Fed. R. App. P. 3(c)(1)(B).       And in any
event, any challenge to Dr. Lasalle's exclusion has been waived.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(admonishing that "a litigant has an obligation 'to spell out its
arguments squarely and distinctly,' or else forever hold its peace"
(quoting Rivera-Gomez v. De Castro, 843 F.2d 631, 635 (1st Cir.
1988))).


                                       - 4 -
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 followed.

            The 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").

            We 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


                                     - 5 -
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 Cir.

1992).

              In    this   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


                                          - 6 -
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."                Macaulay

v. Anas, 321 F.3d 45, 51 (1st Cir. 2003).           "Surprise and prejudice

are important integers in this calculus," as is "what the late

disclosure portends for the court's docket."              Id.

            The district court adopted this approach.                 It assayed

the totality of the circumstances and found that the lion's share

of the pertinent factors favored exclusion.               To begin, the court

appraised the history of the litigation and discerned a strategic

attempt by the plaintiff, bordering on bad faith, to develop a

"contingency plan" through which she could salvage her case should

Dr. Lasalle's testimony be excluded.          Next, the court weighed the

plaintiff's     stated   justification       for    the   lengthy      delay    in

producing Dr. Hausknecht's report — that the disclosure deadline

referred exclusively to Dr. Lasalle's report — and found it

specious.       Having   concluded    that    the    delay      was   manifestly

unwarranted, the court went on to find that it would be "wishful

thinking" to suggest that the defendants would not be prejudiced

by the late disclosure, especially since discovery had long since

closed and the defendants had already moved for summary judgment.




                                     - 7 -
Finally, the court explained that allowing the belated disclosure

would have a negative effect on its docket.

           On the other side of the scale, the district court found

slim pickings.     Only one factor favored the plaintiff:              the need

for the precluded evidence.        After all, excluding Dr. Hausknecht

would leave the plaintiff without any expert testimony and, thus,

would "effectively dispose of the case."             Esposito v. Home Depot

U.S.A., Inc., 590 F.3d 72, 79 (1st Cir. 2009); see Cortés-Irizarry

v. Corporación Insular de Seguros, 111 F.3d 184, 190 (1st Cir.

1997) (explaining that "because Puerto Rico law presumes that

physicians      exercise    reasonable      care,   a     plaintiff    bent   on

establishing a breach of a physician's duty of care ordinarily

must   adduce    expert    testimony   to   limn    the   minimum     acceptable

standard and confirm the defendant doctor's failure to meet it").

Nevertheless, the other factors preponderated so heavily against

excusing a blatant violation of the court's scheduling order that

exclusion (the court believed) was a condign sanction.

           Although the plaintiff characterizes this ruling as

draconian, we think that it draws its essence both from the

particulars of the case and from the realities of modern-day

litigation.     As we have warned, "discovery must not be allowed to

degenerate into a game of cat and mouse."            Thibeault, 960 F.2d at

244.   In choosing to disclose only a single expert report by the

court-ordered deadline, the plaintiff elected to gamble her case


                                   - 8 -
on the admissibility of that expert's testimony.            She must abide

the foreseeable consequences of that lost gamble.             When all is

said and done, "[a] party who knowingly chooses to put all [her]

eggs in one basket is hard-pressed to complain when the basket

proves inadequate and the trial court refuses to allow [her] to

substitute    a   new   and   previously    undisclosed   basket   for   it."

Samaan, 670 F.3d at 37.        This is particularly true when — as in

this case — allowing the plaintiff to change course after the

defendants have already expended time and resources briefing a

motion for summary judgment would be obviously prejudicial.              See

Amoah v. McKinney, 875 F.3d 60, 63 (1st Cir. 2017) (denying belated

attempt to add new experts because granting it would prejudice

defendants by requiring them "to withdraw their current motion for

summary judgment, depose plaintiff's experts, . . . and then — if

still deemed prudent — file a new motion for summary judgment").

             If more were needed — and we doubt that it is — we cannot

forget that "the district court has an interest in the efficient

management of its docket."        Santiago-Díaz, 456 F.3d at 277.         It

follows that "[w]henever a party, without good cause, neglects to

comply with reasonable deadlines, the court's ability to manage

its docket is compromised."       Id.

             We do not gainsay that the plaintiff had a compelling

need for Dr. Hausknecht's testimony.          But that circumstance was a

by-product of the plaintiff's tactical choices; and in all events,


                                    - 9 -
that circumstance alone cannot carry the day.                See id. at 277-78

(affirming exclusion of plaintiff's sole expert when plaintiff's

need for expert testimony was only factor weighing in her favor).

Judicial decisions about sanctions cannot be made solely from the

perspective of one party to the case but, rather, must strike an

equitable balance between the rights and responsibilities of all

of the affected parties.

            That is game, set, and match. Because the district court

did not abuse its discretion in excluding Dr. Hausknecht, its grant

of summary judgment was unimpugnable.           See id. at 278 (explaining

that "[h]aving concluded that the district court's preclusion of

the   plaintiff's       expert    evidence     [in    Puerto    Rico      medical

malpractice case] was well within its discretion, it follows,

virtually   a    fortiori,    that    the    lower   court   did   not    err   in

dismissing the action").             Indeed, the plaintiff has made no

developed argument that her malpractice claims can succeed without

expert testimony.       See United States v. Zannino, 895 F.2d 1, 17

(1st Cir. 1990) (explaining that issues "unaccompanied by some

effort at developed argumentation, are deemed waived").

            We   need   go   no   further.      There   is   little    point    in

repastinating soil already well-plowed, and this case bears a

strong family resemblance to Samaan.                 In each instance, the

district court ably evaluated "the relevant factors and made a

sensible (though not inevitable) choice of sanctions."                   670 F.3d


                                     - 10 -
at 37.   Accordingly, we hold that the court below did not abuse

its discretion in excluding Dr. Hausknecht as an expert witness.

            "District judges live in the trenches, where discovery

battles are repeatedly fought."         Thibeault, 960 F.2d at 244

(quoting Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076, 1082

(1st Cir. 1989)).     When a district judge — especially a district

judge who has become intimately familiar with a case over the

course of several years — appropriately weighs the relevant factors

and selects a reasonable sanction for a discovery violation, "[w]e

cannot, from the remote vista of an algid appellate record, second-

guess that choice."    Samaan, 670 F.3d at 37.



Affirmed.




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