          United States Court of Appeals
                     For the First Circuit


No. 16-2291

                           NANA AMOAH,

                      Plaintiff, Appellant,

                               v.

                DENNIS MCKINNEY; SMITH TRANSPORT,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Timothy S. Hillman, U.S. District Judge]


                             Before

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


     Stephen Gordon, with whom Kenneth Onyema was on brief, for
appellant.
     Matthew C. Welnicki, with whom Melick & Porter, LLP was on
brief, for appellees.


                        November 13, 2017
          BARRON, Circuit Judge.       This case arises from a suit for

negligence that the plaintiff, Nana Amoah, brought against the

driver of a tractor trailer and the company that owned the vehicle

and hired the driver, after Amoah and the driver were involved in

a vehicle collision that occurred in Massachusetts on October 17,

2014.   The   District   Court   granted    summary    judgment   to   the

defendants after ruling favorably for the defendants on their

motion to strike the plaintiff's statements of facts.             For the

reasons that follow, we conclude that the District Court did not

abuse its discretion in ruling on the defendants' motion to strike

those statements of facts, and that summary judgment in favor of

the defendants, based on the record that remained, was proper.          We

therefore affirm.

                                  I.

          Amoah filed suit against defendants Dennis McKinney and

Smith Transport, the appellees, in November 2014, in Worcester

Superior Court, following the injuries that Amoah suffered when

his car crashed on a highway in Massachusetts.        Amoah alleges that

the tractor trailer that McKinney was driving, and which was owned

by Smith Transport, struck Amoah's car from behind and caused him

to lose control and to strike a median.       Amoah brought claims for

negligence against both defendants, and negligent entrustment and

negligent hiring against Smith Transport.




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             The defendants, who countered that Amoah first lost

control of his car and struck the median before bouncing off and

hitting    McKinney's      tractor    trailer,    removed    the    case   to   the

District     Court   for    the     District    of    Massachusetts    based     on

diversity.    Both parties thereafter moved for summary judgment and

made motions to strike various statements of facts that the other

party had offered.

             The District Court referred all of the parties' opposing

motions to a Magistrate Judge.             The Magistrate Judge recommended

granting the defendants' motions to strike many of the facts that

were set forth in Amoah's statement of facts in support of his own

summary judgment motion, and the entirety of Amoah's statement of

facts set forth in Amoah's opposition to defendants' summary

judgment     motion,    including      two     expert   reports     attached    as

exhibits.     The Magistrate Judge did so on the ground that Amoah,

in offering those statements of facts, had failed to comply with

Local Rule 56.1, which requires oppositions to motions for summary

judgment to include "a concise statement of the material facts of

record as to which the moving party contends there is no genuine

issue to be tried."        LR, D. Mass 56.1.         The Magistrate Judge then

recommended that the defendants' motion for summary judgment be

granted as there was "no contrary expert opinion as to the cause

of   the   accident"    left   in    the   record    that   could   counter     the




                                       - 3 -
defendants' facts, including the defendants' expert report ("the

Melcher Report") regarding the accident's cause.

          Amoah filed objections to the Magistrate Judge's report

and recommendation. The District Court then adopted the Magistrate

Judge's report and recommendation and entered summary judgment in

favor of the defendants.

                                 II.

          We first consider Amoah's contention that the expert

reports attached to his opposition to defendants' motion for

summary judgment should not have been struck and thus that the

summary judgment ruling may not stand. We review a ruling granting

a motion to strike for an abuse of discretion, see Cummings v.

Standard Register Co., 265 F.3d 56, 62 (1st Cir. 2001), and we

find none here.

          The   Magistrate   Judge   recommended   to   strike   the   two

expert reports attached to Amoah's opposition to the defendants'

motion for summary judgment because Amoah provided the expert

reports to the defense nearly four months after the deadline for

expert disclosures as set by a scheduling order.         The Magistrate

Judge found that the late disclosure was neither "substantially

justified" nor "harmless" and thus that the reports should be

struck under Macaulay v. Anas, 321 F.3d 45, 51 (1st Cir. 2003).

          Macaulay provides that where a district court opts to

preclude evidence,


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           [W]e review that decision with reference to a
           host of factors, including: (1) the history of
           the litigation; (2) the sanctioned party's
           need for the precluded evidence; (3) the
           sanctioned party's justification (or lack of
           one) for its late disclosure; (4) the
           opponent-party's ability to overcome the late
           disclosure's adverse effects -- e.g., the
           surprise and prejudice associated with the
           late disclosure; and (5) the late disclosure's
           impact on the district court's docket.

Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 78 (1st Cir.

2009) (citing Macaulay, 321 F.3d at 51).        And here, the District

Court accepted the Magistrate Judge's report and recommendation,

which specifically found that the "[p]laintiff has repeatedly

flouted his discovery obligations and for this court to excuse his

conduct in order to protect an opportunity for a merits-based

determination would not only reward such conduct, but also would

disregard all but the second of the Macaulay factors, diminishing

a five-part test to a single factor."

           Amoah argues on appeal that his late disclosure of the

experts who produced the reports should have been excused because

it was based on a belief than an order postponing a status

conference essentially authorized an open-ended discovery period.

But, the record shows that Amoah failed to disclose the experts

even   after   defense   counsel   advised   Amoah   that   the   discovery

deadline had not been canceled.      And thus, as the Magistrate Judge

correctly found, at a minimum, "it would have been prudent for




                                   - 5 -
plaintiff    to    inquire"     about    the    deadline      if    there     was   any

confusion.

             In addition, the record supports the conclusion that the

defendants would have been substantially prejudiced by allowing

the late expert reports.         As the Magistrate Judge found, if those

reports    were    allowed,     then    "defendants       would    be   required     to

withdraw    their     current    motion     for    summary        judgment,    depose

plaintiff's       experts,    perhaps    have     their    own     experts    prepare

amended expert reports based on plaintiff's expert reports, and

then -- if still deemed prudent -- file a new motion for summary

judgment."

             Even though we find no abuse of discretion in the

decision to strike Amoah's expert reports, there did remain in the

record the defendants' own statement of facts and the Melcher

Report.     And, Amoah now contends that the facts that remained in

the record precluded the granting of summary judgment to the

defendants, because those remaining facts themselves created a

genuine issue of disputed fact as to whose version of the accident

was correct.

             In    particular,     Amoah    argues        that     defendants'      own

statement     of    facts    referenced        facts   that       contradicted      the

conclusion reached in the Melcher Report regarding the cause of

the accident.       However, the "facts" in the defendants' statement

that Amoah refers to, such as Amoah's representations in both his


                                        - 6 -
Personal Injury Protection application and his response to the

defendants' interrogatory that the cause of the accident was that

"[his car] was struck by a Smith Trucking vehicle," are nothing

more than conclusory assertions about what happened.      Accordingly,

they provide no basis for concluding that the summary judgment

ruling was wrong.     See Rivera-Corraliza v. Morales, 794 F.3d 208,

227 (1st Cir. 2015) (holding that conclusory assertion without

factual support constitutes waiver of a claim).

           Nor is there anything else in the record that supports

Amoah's assertion in his brief to us that the record contains

evidence that he observed the tractor trailer hitting his car.      In

fact, Amoah admitted in his deposition that he was not looking in

his rearview mirror and did not see how the accident occurred.

           Thus, when the Magistrate Judge found that the "in effect

uncontroverted" evidence supported the defendants' version of how

the accident occurred and therefore that summary judgment was

warranted, the Magistrate Judge was not -- as Amoah contends --

impermissibly ruling on the credibility of the Melcher Report.

Instead,   to   use    the   Magistrate   Judge's   own   words,   "the

determination that summary judgment is warranted in favor of

defendants plainly is predicated on the striking of plaintiff's

opposition and expert reports," as, without them, the Magistrate

Judge found, there was simply no evidence in the record to support




                                 - 7 -
plaintiff's version of the events and thus to create a factual

dispute with the account given in the Melcher Report.

           To be sure, Amoah does argue that the Melcher Report

itself should have been struck.          But even if striking it would

somehow   aid    Amoah's   cause   --   notwithstanding   the    Magistrate

Judge's ruling that there was nothing in the record to support the

plaintiff's version of events -- we do not see how it was an abuse

of discretion to decline to strike the Melcher Report.

           The crux of Amoah's contrary argument is that the Melcher

Report was not based on scientific or technical knowledge, because

it included an analysis of testimony offered by the trooper at the

scene of the collision, and thus was not admissible pursuant to

Rules 702 and 703 of the Federal Rules of Evidence.             But, as the

Magistrate Judge correctly found, Rules 702 and 703 "govern the

admissibility of expert evidence . . . not the materials that

factor into an expert's determinations."

           Moreover, Amoah's argument that the Melcher Report was

not signed under penalty of perjury and thus was inadmissible fares

no better.      Amoah did not make this argument below, and we find

that it now fails on plain error review, as the Melcher Report's

admission did not affect Amoah's substantial rights.             After all,

the Magistrate Judge found that there was no evidence in the record

to support Amoah's version of the events.




                                   - 8 -
                                   III.

            Accordingly,   the   judgment   of   the   District   Court   is

affirmed.




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