
USCA1 Opinion

	




          February 11, 1993 UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-2060                     ALFONSO SERRANO-PEREZ AND LUZ DE DIEGO-R OS,                               Plaintiffs, Appellants,                                          v.              FMC CORPORATION, MONSANTO COMPANY, AND ICI AMERICAS, INC.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                          and Bownes, Senior Circuit Judge.                                      ____________________                                 ____________________               Raymond  Rivera-Esteves, with whom  Juan A. Hernandez-Rivera               _______________________             ________________________          was on brief, for appellants.               Jorge Luis-Cordova,  with whom Rivera, Tulla & Ferrer was on               __________________             ______________________          brief, for ICI Americas, Inc., appellee.                                 ____________________                                  February 11, 1993                                 ____________________                      BOWNES,   Senior   Circuit   Judge.     Plaintiffs-                                ________________________            appellants  raise two  issues  on appeal:    (1) whether  the            district   court  properly   granted  summary   judgment  for            defendant-appellee because  of lack of evidence of causation;            and  (2) whether the district court  abused its discretion in            denying plaintiffs' motion for reconsideration of the summary            judgment.  We affirm the district court on both issues.                                          I.                                          I.                            THE DISTRICT COURT PROCEEDINGS                            THE DISTRICT COURT PROCEEDINGS                            ______________________________                      On November 14,  1990, the  plaintiffs, father  and            mother of Carlos Serrano de Diego, filed  a complaint against            defendant-appellee, ICI  Americas, Inc., ("ICI")  and others.            There  has been no  appeal as to  the other  defendants.  The            complaint states that  it is "based on negligence  in failure            to adequately  warn and strict  liability."  It  alleges that            plaintiffs'  son, Carlos, was a farm worker for ten years and            as such  was required  to come  into contact  with "chemicals            and/or agricultural products" manufactured by the defendants.            The complaint  states that the  chemicals and/or agricultural            products  with  which Carlos  Serrano  came  in contact  "are            unknown  at  this time."   The  complaint  alleges that  as a            result  of   coming  in   contact  with  the   chemicals  and            agricultural  products  manufactured  by  defendants,  Carlos            Serrano developed "an aplastic  anemia that culminated in his                                         -2-            death"  on January 4, 1990.  Damages of three million dollars            were sought.                      In its  answer, ICI admitted  that it  manufactures            and   sells  agricultural  chemical  products  and  conducted            business in Puerto  Rico.  It specified  that it manufactured            and sold agricultural products under the trade name Gramaxone            from 1985 to 1987.                        On August 2, 1991,  the district court ordered that            discovery  be concluded by December 31, 1991.  A deadline was            set for the disclosure of expert witnesses.  On September 26,            1991,  all  parties  brought  a joint  motion  requesting  an            extension of  the discovery cut-off  date to March  31, 1992.            The  court  responded  in  October  of  1991  by  granting  a            discovery extension to February  5, 1992.  Trial was  set for            May 11, 1992.                      On  April 28, 1992,  the court  granted defendants'            motions for summary judgment.   On May 13 plaintiffs  filed a            motion for  reconsideration of  the summary judgment;  it was            denied on August 4, 1992.                                         II.                                         II.                                   SUMMARY JUDGMENT                                   SUMMARY JUDGMENT                                   ________________                      We  review a summary judgment de novo.  We read the                                                    __ ____            record and all reasonable inferences to be drawn therefrom in            the light  most  favorable to  the  non-moving party.    E.H.                                                                     ____            Ashley  & Co. v. Wells  Fargo Alarm Services,  907 F.2d 1274,            _____________    ___________________________                                         -3-            1277 (1st Cir. 1990).   Summary judgment is mandated  "if the            pleadings,  depositions,  answers  to   interrogatories,  and            admissions  on file,  together with  the affidavits,  if any,            show that  there is no genuine issue  as to any material fact            and  that the  moving party  is entitled  to a judgment  as a            matter of law."  Fed. R. Civ.  P. 56(c).  "[S]ummary judgment            will  not lie  if  the  dispute  about  a  material  fact  is            'genuine,' that is, if the evidence is such that a reasonable            jury  could  return  a  verdict  for  the  nonmoving  party."            Anderson v. Liberty  Lobby, Inc., 477  U.S. 242, 248  (1986).            ________    ____________________            Under Rule 56(e):                      . . .  When a motion for summary judgment                      is made and supported as provided in this                      rule, an adverse party  may not rest upon                      the  mere allegations  or denials  of the                      adverse party's pleading, but the adverse                      party's  response,  by  affidavits or  as                      otherwise provided in this rule, must set                      forth specific facts  showing that  there                      is  a genuine  issue for  trial.   If the                      adverse  party  does   not  so   respond,                      summary  judgment, if  appropriate, shall                      be entered against the adverse party.            "The  mere existence of a scintilla of evidence in support of            the plaintiff's position will  be insufficient; there must be            evidence  on which  the jury  could reasonably  find  for the            plaintiff."  Anderson, 477 U.S. at 252.                         ________                      . . .  In our view, the plain language of                      Rule 56(e) mandates the entry  of summary                      judgment,   after   adequate   time   for                      discovery  and  upon  motion,  against  a                      party   who  fails  to   make  a  showing                      sufficient to establish the  existence of                      an  element  essential  to  that  party's                                         -4-                      case, and on  which that party will  bear                      the burden of proof at trial.            Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).            _____________    _______                      In  its opinion and order granting summary judgment            for the defendants the  court noted that defendants presented            the  testimony of  six  expert witnesses  to the  effect that            there  was no  causal connection  between any  of defendants'            pesticides and aplastic  anemia.   Defendants also  submitted            medical  literature to  the court  showing that there  was no            causal   link   between  aplastic   anemia   and  defendants'            pesticides.   The court further found that plaintiffs had not            presented  any expert  testimony indicating  that defendants'            pesticides caused aplastic anemia.                      We  have scoured  the record  thoroughly, including            statements  in  Carlos Serrano's  hospital records  that were            excluded  by the district court,  and have found nothing that            would  engender a genuine issue of material fact.1  There was            no  expert  testimony   or  medical  literature   offered  by            plaintiffs  tending   to  establish  a  causal  link  between            defendants'  pesticides and aplastic anemia.  It is true that            the  excluded  hospital  records  indicated  a  link  between            pesticides and Carlos  Serrano's illness.   But there was  no            evidence  that  any of  the  pesticides  manufactured by  the                                            ____________________            1  We  do  not intimate  that  the  district  court erred  in            excluding  the portions  of the  hospital records  offered in            evidence.                                         -5-            defendants could have  caused aplastic anemia.   More to  the            point,  there   was   no  evidence   offered  by   plaintiffs            implicating  Gramaxone, which  was  manufactured by  the sole            remaining  defendant -  ICI Americas, Inc.  - as  a causative            agent of aplastic  anemia.  The district  court concluded its            summary judgment order as follows:                           Plaintiffs in this case have offered                      no evidence, no  expert testimony, and no                      epidemiological  data  that  would  prove                      that   defendants'   insecticides  caused                      Serrano's aplastic anemia.  Nor have they                      submitted   evidence   that   defendants'                      insecticides can cause aplastic anemia at                      all.  Plaintiffs have failed to set forth                      any  specific facts  that show  a genuine                      triable  issue as  to  the  causation  of                      Serrano's illness.                      After reviewing  the record carefully in  the light            most  favorable to plaintiffs-appellants,  we are constrained            to agree.  The summary judgment is affirmed.                                         III.                                         III.                         DENIAL OF MOTION FOR RECONSIDERATION                         DENIAL OF MOTION FOR RECONSIDERATION                         ____________________________________                      In denying plaintiffs'  motion for  reconsideration            of the summary judgment, the district court stated:                           On April 28, 1992, the Court granted                      defendants' motions  for summary judgment                      on the grounds that plaintiffs had failed                      to  present   evidence  that  defendants'                      insecticides   caused    the   decedent's                      aplastic  anemia.    Plaintiffs  now move                      for reconsideration on  the grounds  that                      they  have obtained  the  services of  an                      expert who has stated that there may be a                      link  between  defendants'  products  and                      aplastic anemia.                                         -6-                           This  case  was  filed  in  November                      1990.    In  October of  1991,  the Court                      granted  the  parties  until February  5,                      1992   to   conclude   discovery.     The                      defendants  point   out,  and  plaintiffs                      admit as much in  their motion, that they                      were  not  noticed of  this  expert until                      April  24,  1992,  more than  two  months                      after the discovery deadline.   Discovery                      deadlines  are  necessary for  the proper                      management  of cases.   See  Thibeault v.                                              ___  ____________                      Square D Co., 960  F.2d 239, 247 n.7 (1st                      ____________                      Cir. 1992).   Because plaintiffs'  expert                      was secured after the discovery deadline,                      the Court denies the motion to reconsider                                denies                      based on their expert's testimony.                         On appeal,  plaintiffs claim  that the district  court abused            its discretion in denying their motion.  We disagree.                        The  district  courts   are  necessarily   afforded            substantial   discretion   in    ruling   on   motions    for            reconsideration.   See  Mackin v.  City of  Boston, 969  F.2d                               ___  ______     _______________            1273, 1279  (1st Cir. 1992),  cert. denied, 61  U.S.L.W. 3314                                          _____ ______            (1993); Weinberger v. Great  Northern Nekoosa Corp., 925 F.2d                    __________    _____________________________            518, 528 (1st  Cir. 1991); see also  Appeal of Sun Pipe  Line                                       ___ ____  ________________________            Co., 831 F.2d 22, 25 (1st Cir. 1987), cert. denied, 486  U.S.            ___                                   _____ ______            1055 (1988).   Substantial discretion, though,  does not mean            unbridled discretion and a  district court's decision to deny            a  motion to  reconsider its  judgment will  be reviewed  for            abuse  of discretion.  United States v. Roberts, 978 F.2d 17,                                   _____________    _______            20-21,  (1st Cir.  1992); Weinberger,  925 F.2d  at 528;  Sun                                      __________                      ___            Pipe, 831  F.2d at  25.   In  Roberts  we reiterated  how  we            ____                          _______            determine whether there has been an abuse of discretion.                                         -7-                           In making discretionary judgments, a                      district court abuses its discretion when                      a    relevant    factor   deserving    of                      significant weight is overlooked, or when                      an    improper    factor   is    accorded                      significant  weight,  or  when the  court                      considers the appropriate mix of factors,                      but commits a  palpable error of judgment                      in  calibrating  the  decisional  scales.                      See  Independent Oil and Chem. Workers of                      ___  ____________________________________                      Quincy,  Inc. v.  Procter  & Gamble  Mfg.                      _________________________________________                      Co., 864  F.2d 927, 929  (1st Cir. 1988);                      ___                      In re  San Juan  Dupont Plaza  Hotel Fire                      _________________________________________                      Litig.,  859 F.2d  1007,  1019 (1st  Cir.                      _____                      1988);  United  States  v. Hastings,  847                              ___________________________                      F.2d 920, 924  (1st Cir.), cert.  denied,                                                 _____  ______                      488 U.S.  925, 109 S. Ct. 308, 102 L. Ed.                      2d 327 (1988).            United States v. Roberts, 978 F.2d at 21.            _____________    _______                      The  broad  measure of  discretion  enjoyed  by the            district courts in managing the litigation before it includes            the control of pre-trial discovery.  Mark v. Great Atlantic &                                                 ____    ________________            Pacific Tea Co., Inc., 871 F.2d 179, 186  (1st Cir. 1989); In            _____________________                                      __            re  Recticel Foam Co., 859  F.2d 1000, 1006  (1st Cir. 1988),            _____________________            (district  judge  is  in   unique  position  to  balance  all            potentially conflicting interests among the litigants and its            decisions  on   the  scope  of  the   discovery  process  are            ordinarily left to the judge's informed judgment).                       The use  of discovery closure  dates and  deadlines            for  disclosure of  the identities  of experts  are important            tools for  case management.  Their use, including the setting            of  specific   deadlines,  is  not  only   within  the  sound            discretion of the district court, but has been strongly urged                                         -8-            by us.  In Thibeault v. Square  D Co., 960 F.2d 239, 247  n.7                       _________    _____________            (1st Cir. 1992), we stated:                       .  .  .    [W]e urge,  in  the  strongest                      possible terms, that district courts (as,                      indeed, is most  frequently done in  this                      circuit)   set  pretrial   deadlines  for                      disclosing the identities of experts.  In                      the  same vein,  we heartily  endorse the                      utilization  of discovery  closure dates,                      available under Fed.R.Civ.P. 16(b)(3), as                      a case  management tool.  After  all, the                      adversarial   cast   of  our   system  of                      justice,  combined with  the increasingly                      complex  and  unwieldy  nature of  modern                      litigation  practice, frequently  require                      that trial courts provide strong guidance                      to counsel and assume hands-on control of                      the discovery process.                      Plaintiffs  have advanced three related reasons for            their  failure to comply  with the discovery  deadline.  They            argue first  that defendant  made it  difficult  for them  to            determine     the     chemical     ingredients     in     its            pesticide Gramaxone.      This  difficulty   was  compounded,            plaintiffs claim,  by the  court's pretrial  protective order            that  precluded the use of  an expert by  plaintiffs that was            associated with  the manufacturing  of pesticides.2   Both of            these factors,  according  to plaintiffs,  combined  to  make            obtaining an expert a difficult and slow process.  Plaintiffs            assert  that  the court  was informed  of  this problem  at a                                            ____________________            2 The  protective  order  was  issued to  protect  the  trade            secrets  pertaining   to  some  of   the  other   defendants'            pesticides, but did not pertain to ICI.                                         -9-            pretrial  conference on  February 20, 1992.   This  was after            discovery had closed.                      Plaintiffs eventually  obtained the services  of an            expert,   Dr.  Padovani,   a  university  professor   at  the            University  of Puerto Rico, Magaguez Campus.  It is not clear            from plaintiffs'  motion for reconsideration when  the expert            was retained, but it can be fairly inferred that it was after            the discovery closure date of February 5, 1992.  According to            plaintiffs' motion for reconsideration:                           As a result  of extensive  research,                      Dr. Padovani was also of the opinion that                      Paraquat exposure had led to the onset of                      aplastic  anemia.   In  support  of  that                      opinion,    plaintiffs    submitted    to                      defendant    ICI    fruits    of    their                      investigation which  established a causal                      link   and    consisted   of   scientific                      publications       entitled      Paraquat                                                       ________                      Intoxication   and   Isolated    Aplastic                      _________________________________________                      Anemia,  and   Isolated  Aplastic  Anemia                      ______         __________________________                      After Paraquat Poisoning.3                      ________________________                      This information  was disclosed to  defense counsel            on April 24,  1992, more  than two months  after the  cut-off            date for pretrial discovery.                      Plaintiffs'  reasons   for  failure  to   meet  the            discovery  schedule fell  far short  of showing  an  abuse of            discretion by the district court.  The deadlines imposed gave            plaintiffs  more than a year from the filing of the complaint            to obtain the  services of  an expert witness.   Counsel  for                                            ____________________            3  Paraquat  is one  of  the  ingredients  in Gramaxone,  the            pesticide manufactured by defendant, ICI Americas, Inc.                                         -10-            plaintiffs  knew  or  should  have  known  at  the  time  the            complaint   was  drawn  that   only  expert  testimony  could            establish  a causal  link  between defendant's  pesticide and            Carlos   Serrano's  illness  and  death.    Some  preliminary            spadework  should have  been  done before  the complaint  was            filed.     We  do  not  think   the  discovery  schedule  was            unreasonably short.                      In a pretrial order issued February 20, 1992, which            plaintiffs  signed,  the  court  listed  as  an  "uncontested            material  fact" that  the  plaintiffs had  not proffered  any            competent  expert   testimony  showing   that   any  of   the            defendants' products, to which  exposure was alleged,  caused            the  aplastic anemia.  By  this time, trial  had already been            set  for March 11, 1992.   Defendants and  the district court            were noticed of plaintiffs'  proposed expert witness on April            24,  1992 two months  after the  discovery deadline  and less            than one month prior to the start of the trial.                      Were we  to find that the district court abused its            discretion  in  denying  the motion  for  reconsideration, we            would  be   flouting  our   own  precedent,   abdicating  our            supervisory responsibility,  and turning over the  control of            discovery  to the lawyers.  The district court's order on the                                        The district court's order on the                                        _________________________________            motion for reconsideration is affirmed.            motion for reconsideration is affirmed.            ______________________________________                      Costs on appeal are awarded to appellee.                      Costs on appeal are awarded to appellee.                      _______________________________________                                         -11-
