          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


                                    -2-
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.

                                          -3-
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


                                   -5-
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.

                                        -6-
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


                                  -7-
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.

                                      -8-
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.




                                    -10-
            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'


                                    -11-
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




                                       -12-
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


                                        -13-
                 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


                                  -14-
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




                                   -15-
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


                               -16-
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.




                               -17-
              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).

                                         -18-
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

                                    -20-
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.

                                -21-
