248 F.3d 29 (1st Cir. 2001)
JOSE ANTONIO ORTIZ-LOPEZ, ET AL., Plaintiffs, Appellants,v.SOCIEDAD ESPANOLA DE AUXILIO MUTUO Y BENEFICIENCIA DE PUERTO RICO, ETC., Defendant, Appellee.
No. 00-1278
United States Court of Appeals  For the First Circuit
Heard March 5, 2001Decided May 3, 2001

John Ward-Llambas with whom Ricardo Ruiz-Diaz and Ward &  Ward were on brief for appellants.
Jeannette M. Lopez-de-Victoria for appellee.
Before  Torruella, Chief Judge, Campbell, Senior Circuit Judge, and Selya, Circuit Judge.
CAMPBELL, Senior Circuit Judge.


1
Plaintiffs sued  Sociedad Espanola de Auxilio Mutuo Y Beneficencia de Puerto Rico  (hereinafter the "hospital") in the district court under, inter  alia, the Emergency Medical Treatment and Active Labor Act  (EMTALA), the "anti-dumping statute."1  EMTALA requires the  hospital to "appropriately screen" and "stabilize" the patient  before transferring her to another facility.  See 42 U.S.C.A. §  1395dd(a) and (b).  Plaintiffs are the family of deceased Rosa  Rivera, who died after succumbing to an allegedly self-inflicted  overdose of painkillers after arriving at the emergency room of  the hospital.  Plaintiffs allege in their complaint that the way  Rivera was treated by defendant's staff fell short of EMTALA's  requirements.


2
Plaintiffs, however, never reached trial on their  EMTALA claim.  On the day scheduled for trial, the court found  that plaintiffs had committed serious discovery abuses by  withholding information they were required to furnish, including  information relative to their proposed expert witness.  As a  sanction, the court ruled that plaintiffs' expert witness would  not be allowed to testify.  Thereafter, it granted defendant's  motion to dismiss2, concluding that plaintiffs could not prove  their EMTALA claim without the excluded evidence.  This appeal  followed.


3
In the course of the year preceding the scheduled  trial, the defendant filed three motions to compel under Rule  37(a) and (b).3  The district court acted on these motions  immediately prior to the time the jury trial was scheduled to  begin, January 24, 2000.  Defendant's allegations in those  motions to compel were two-fold.


4
First, defendant alleged (and the district court later  found) that for nearly three years plaintiffs had failed to  fully and truthfully answer interrogatories concerning the  deceased's medical history as repeatedly requested by the  defendant and as required by the Federal Rules of Civil  Procedure, see Fed. R. Civ. P. 26(e) (subsection of rule  requiring the supplementation of automatic discovery, such as  interrogatory answers, when the disclosing party learns "that in  some material respect the information disclosed is incomplete or  incorrect").  When asked at which hospitals and when and by whom  the deceased had been treated in the past, plaintiffs answered  by naming only three hospitals but without providing any further  information.  They claimed not to have any more specific  information.  When defendant again requested information about  Rosa Rivera's prior medical treatment, asking specifically for  medical documents and information, such as names of treating  physicians and the dates of such treatment (to which plaintiffs  had exclusive access), the plaintiffs did not respond.4  As it  turns out, the deceased had been hospitalized for five months in  1991 (for what seems to have been a combination of mental health  problems and cervical cancer) and was afterwards in and out of  hospitals for cancer treatment.  Not until the day of trial,  during settlement negotiations, did the defendant learn of this  from the plaintiffs, although defendant had requested  information of this type all along.


5
During the hearing on the motions to compel, the  district court determined that plaintiffs' withholding of this  information was in bad faith.  "They [the plaintiffs] know when  their sister, . . . his wife was hospitalized and they have kept  you [their counsel] in the dark as to all of this because  certainly five months hospitalization, it certainly is of such  magnitude that a husband or a sister or mother would know and  would have told you . . . [in the course of] answering  interrogatories . . . .  I am not implying that you [plaintiffs'  counsel] are at fault.  It is your client.  They have tried to  keep defendants in the dark as to your client's  problems . . . ."


6
While the court found purposeful evasion in failing to  reveal Rosa Rivera's medical history, supra, this was not the  finding that led directly to the dismissal of plaintiffs' case.  Defendant's second allegation contained in their last two  motions to compel was the basis for the exclusionary ruling that  ultimately ended the case.  Defendant complained that plaintiffs  had failed to comply with the automatic expert disclosure  requirements of Rule 26(a)(2)(B), to wit, providing the names of  court cases in which their designated expert had previously testified.  Defendant successfully argued that this omission  should cost plaintiffs the use of their expert without whom they  would be unable to make out a case.


7
Plaintiffs' response to this allegation, in writing and  at argument before the district court, was that it had been  impossible to produce the required information because their  expert did not "keep his records" that way (allegedly the  plaintiffs' expert did not keep a list of all the cases in which  he testified and only remembered the attorneys' names). Plaintiffs further responded that they had fulfilled Rule  26(a)(2)'s requirement by providing to the defendant the names  of some of the attorneys with whom the expert had previously  worked.


8
After hearing arguments on all outstanding motions to  compel and, after recessing for a time in which the parties  could negotiate further and the court could conduct some  independent research into the motions pending, the court  thereupon granted defendant's motion to exclude plaintiffs'  expert witness.  Plaintiffs protested that they would have no  way to admit relevant documents other than through their expert  witness. The court noted that that being the case, plaintiffs  might not be able to make out their EMTALA claim.  The court  informed both parties they had the afternoon and evening to  discuss the matter and recessed until the following morning when  the jury would be brought in for opening arguments.


9
The next day, January 25, 2000, in an attempt to get  the court to reverse its previous ruling excluding their expert  witness, plaintiffs' counsel produced to defendant and the court  -- contrary to their earlier arguments that such information was  unavailable -- a list of all the court cases in which their  expert witness had previously testified.  Calling plaintiffs'  belated proffer both "an insult" and "a shame", the district  court refused plaintiffs' list and then invited both parties to  present arguments as to why the case should or should not be  dismissed for failure to state a claim or, in the alternative,  for lack of subject matter jurisdiction, the plaintiffs having  lost their chance to present evidence as to their one remaining  claim.  Thereupon defendant renarrated the lengthy story of its  frustrating attempts to obtain discovery.  At the conclusion of  defendant's story, to which plaintiffs had little relevant to  add, the district court announced its dismissal of the  plaintiffs' case with prejudice.


10
Plaintiffs say little in their appellate briefs and  argument by way of justifying their failure to have provided the  above-described discovery.  Instead, plaintiffs contend that the  district court misapplied the law of this circuit when it  excluded the expert evidence as a discovery sanction without  first having made a finding that plaintiffs were in violation of  a court order to compel.  Plaintiffs point to Rule 37(b)(2),  which provides:


11
(b) Failure to Comply With Order


12
If a party or an officer, director, or  managing agent of a party . . . fails to  obey an order to provide or permit  discovery, including an order made under  subdivision (a) of this rule . . . the court  in which the action is pending may make such  orders in regard to the failure as are just,  and among others the following:


13
(A) An order that the matters regarding  which the order was made or any other  designated facts shall be taken to be  established for the purposes of the action  in accordance with the claim of the party  obtaining the order;


14
(B) An order refusing to allow the  disobedient party to support or oppose  designated claims or defenses, or  prohibiting that party from introducing  designated matters in evidence;  (C) An order striking out pleadings or parts  thereof, or staying further proceedings  until the order is obeyed, or dismissing the  action or proceeding or any part thereof, or  rendering a judgment by default against the  disobedient party.


15
Fed. R. Civ. P. 37(b)(2) (emphasis added).  Plaintiffs cite case  law from this circuit holding that "[Rule 37]'s language clearly  requires two things as conditions precedent to engaging the  gears of the rule's sanction machinery:  a court order must be  in effect, and then must be violated, before the enumerated  sanctions can be imposed."  R.W. International Co. v. Welch  Foods, Inc., 937 F.2d 11, 15 (1st Cir. 1991).


16
Plaintiffs' argument fails because the district court  did not act here under Rule 37(b)(2)(B), the provision at issue  in Welch Foods.  Rule 37(b)(2)(B) does indeed contemplate a  threshold determination by the court that the offending party  has failed to comply with a court order issued under Rule 37(a). But the same is not true where automatic discovery provisions of  Rule 26(a) and 26(e) are violated, triggering subsection (c) of  the same Rule 37.  See Fed. R. Civ. P. 37(c).  Subsection (c) of  Rule 37 provides, in relevant part, that should a court find  that


17
a party that without substantial  justification fails to disclose information  required by Rule 26(a) or 26(e)(1) [, that  party] shall not, unless such failure is  harmless, be permitted to use as evidence at  a trial, at a hearing, or on a motion any  witness or information not so disclosed. In  addition to or in lieu of this sanction, the  court, on motion and after affording an  opportunity to be heard, may impose other  appropriate sanctions. In addition to  requiring payment of reasonable expenses,  including attorney's fees, caused by the  failure, these sanctions may include any of  the actions authorized under subparagraphs  (A), (B), and (C) of subdivision (b)(2) of  this rule and may include informing the jury  of the failure to make the disclosure.


18
Fed. R. Civ. P. 37(c)(1).  Under part (c), therefore, a court  order issued under part (a) need not first be violated before  the court may impose the sanctions provided under (c).  What the  district court must find under Rule 37(c) is that the offending  parties were not "substantially justified" in failing to  disclose information required by Rule 26(a) or Rule 26(e) and  that the failure to disclose was not harmless.  This is a "self-executing sanction for failure to make a disclosure required by  Rule 26(a), without need for a motion under subdivision  [37](a)(2)(A)."  Fed. R. Civ. P. 37, advisory committee notes.


19
It is true that when defendant requested sanctions  here, it referred to Rule 37(a) and (b) rather than to Rule  37(c).  However, the record of the proceedings indicates that  the court, in refusing to allow plaintiffs to call their expert,  expressly invoked Rule 37(c) and not 37(b).  On the first  hearing on this issue (the first day of trial), the district  court cited to and quoted the text of Rule 37(c)(1).  "This is  what I [am] going to do.  I [am] going to read from the Federal  Rules of Civil Procedure, 37(c)(1) which [is] the one that  provides for the sanctions in the event that the party fails to  make the required disclosure . . . [under] Rule 26(a)[,] which  this one is (a)(2)(B) . . . ."  The district court referred  explicitly to the so-called "self-executing" provision of Rule  37(c)(1) and to the mandatory disclosure requirements for expert  witnesses.  The court then made the explicit finding that  plaintiffs' discovery abuse was not substantially justified and  was not harmless.


20
From what I have heard, it is not harmless. I mean, you were requested, you were  notified since June of last year, notified  that the [expert] report was deficient, that  it did not comply with the rules. . . . Now, there has been no explanation brought  to the court of why this expert is unable or  unwilling to provide a report which complies  with the rules. . . .  The selection [or]  retention of an expert witness is within the  control of the party employing the expert. That is[,] to the exten[t] that there is a  disadvantage created by the expert's failure  to disclos[e , it] must be born by the party  retaining the expert witness.


21
We accordingly find no merit in plaintiffs' argument  that the court could not impose sanctions as it was not  enforcing a Rule 37(a) order.  The only question is whether the  sanctions it imposed were within its authority and discretion  under Rule 37(c)(1).  We hold they were.


22
Under Rule 37(c), the district court's latitude is  wide.  See Poulin v. Greer, 18 F.3d 979, 984 (1st Cir. 1994). For failure to make the specified discovery, the district court  is directed to preclude as evidence "any witness or information  not so disclosed," and "[i]n addition to or in lieu of this  sanction, the court, on a motion and after affording an  opportunity to be heard, may impose other appropriate  sanctions . . . [which] may include any of the actions  authorized under subparagraphs (A), (B), and (C) of subdivision  (b)(2) of this rule."  Fed. R. Civ. P. 37(c).  These latter  provisions specifically provide for "prohibiting that party from  introducing designated matters into evidence" (subparagraph  (b)(2)(B)) and for "dismissing the action" (subparagraph  (b)(2)(C)).  The range of sanctions provided in Rule 37(c), from  the most harsh (total exclusion and dismissal of the case) to  more moderate (limited exclusion and attorney's fees), gives the  district court leeway to best match the degree of non-compliance  with the purpose of Rule 26's mandatory disclosure requirements. See Klonski v. Mahlab, 156 F.3d 255, 269 (1st Cir. 1998) ("[T]he  new rule [37(c)] clearly contemplates stricter adherence to  discovery requirements, and harsher sanctions for breaches of  this rule, and the required sanction in the ordinary case is  mandatory preclusion.")


23
In this case, over the course of six months, defendant  repeatedly warned the plaintiffs - through correspondence and  motions to the court - that plaintiffs' expert disclosures were  deficient.  In particular, defendant asked for the list of what  plaintiffs claims were "forty or more" cases in which their  expert had previously testified.  Defendant explained, and the  district court credited the explanation, that without the  information about the cases in which plaintiffs' expert has  previously testified, defendant was prevented from deposing him  as to his prior experience in EMTALA cases, which he claimed was  extensive and on which he was going to buttress his own opinion  in this case.  Also, as plaintiffs planned exclusively to rely  on their expert to support their claim of an EMTALA violation,  the expert's credibility and persuasiveness, supported by his  qualifications and his experience, would be directly at issue. It was, therefore, reasonable for the district court to find  that plaintiffs' failure  to provide defendant with this  information prejudiced defendant's case.5


24
Here, plaintiffs' deficient expert report flies in the  face of the purpose of the mandatory expert disclosure  requirements delineated in Rule 26(a)(2), which Rule 37(c) is  intended to uphold and facilitate.  See Fed. R. Civ. P. 26  advisory committee's note (stating that the threat of "[r]evised  Rule 37(c)(1) [is to] provide an incentive for full  disclosure").  See also Richard M. Heimann & Rhonda L. Woo, Import of Amended Federal Rule of Civil Procedure 26(a), 506  PLI/Lit 279, 293 (July-Aug. 1994) (stating that the availability  of the automatic sanctions pursuant to Rule 37(c)(1) "put[s]  teeth into the rule").  The purpose of a "detailed and complete"  expert report as contemplated by Rule 26(a), Fed. R. Civ. P. 26  advisory Committee's note, is, in part, to minimize the expense  of deposing experts, and to shorten direct examination and  prevent an ambush at trial.  See Klonski, 156 F.3d at 269; Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 284  (8th Cir. 1995).  See also Thibeault v. Square D Co., 960 F.2d  239, 244 (1st Cir. 1992) (stating that "[t]his sort of  disclosure is consonant with the federal courts' desire to make  a trial less a game of blindman's buff and more a fair contest  with the basic issues and facts disclosed to the fullest  practical extent").  Failure to include information concerning  the retained expert that is specifically required by Rule  26(a)(2)(B) -- such as "a listing of any other cases in which  the witness has testified as an expert at trial or by deposition  within the preceding for years", see Rule 26(a)(2)(B) --  frustrates the purpose of candid and cost-efficient expert  discovery.


25
As discussed, infra, the district court was entitled  to conclude on this record, as it did conclude, that plaintiffs'  failure to comply with the automatic disclosure rule of Rule  26(a) was both without substantial justification and not  harmless.  For this, the district court - after hearing argument  from both sides - sanctioned the plaintiffs by excluding their  expert testimony entirely, a harsh sanction to be sure, but one  that is nevertheless within the wide latitude of the rule.6  See Fed. R. Civ. P. 37(c) (incorporating Rule 37(b)(2)(B) which  authorizes the district court to prohibit the offending party  from introducing designated matters in evidence).  See also Sheek v. Badger, 235 F.3d 687, 694 (1st Cir. 2000) (stating that  after the district court made a finding that the defendant  failed to supplement its expert report as required by the  automatic expert disclosure requirements, under Rule 37(c) the  district court could have excluded the expert from testifying  entirely - "a sanction well within the district court's scope of  discretion" - but chose only to exclude those portions of the  expert's testimony based on the undisclosed information);  Samos  Imex Co. v. Nextel Co., 194 F.3d 301, 305 (1st Cir. 1999)  (citing Rule 37(c) as authority for the proposition that "as  amended, the civil procedure rules make clear that exclusion of  evidence [such as an expert's testimony] is a standard sanction  for a violation of the duty of disclosure under Rule 26(a)"); Sears Roebuck & Co. v. Goldstone & Sudalter, 128 F.3d 10, 18 n.7  (1st Cir. 1997) (affirming the district court's exclusion under Rule 37(c) of expert testimony because the proffering party  failed to disclose the expert's identity in the beginning of the  litigation, although the identity was later disclosed); Thibeault, 960 F.2d at 245 (affirming the trial court's  preclusion at trial of plaintiff's expert testimony for failure  to supplement interrogatories concerning expert's proposed  testimony).  On this well-developed record indicating that the  plaintiffs' disregard of discovery rules was egregious and may  have been deliberate and willful, we cannot say this sanction  was an abuse of discretion.  See Grajales-Romero v. American  Airlines, Inc., 194 F.3d 288, 297 (1st Cir. 1999)("A district  court's rule 37 sanctions decision is reviewed for abuse of  discretion.").  We, therefore, affirm the district court's  ruling excluding plaintiffs' expert testimony under Rule 37(c).


26
The district court never reached the merits of the  other motions to compel - the subject of which was the  misstatement and absence of information from answers to  interrogatories regarding Rosa Rivera's extensive  hospitalization - because, on the second day of the scheduled  trial, the court concluded that without plaintiffs' expert  witness, they could not make out their EMTALA claim and thereby  dismissed the plaintiffs' case.  In so doing, the district court  was responding to yet another pending motion -- defendant's  motion to dismiss.7  This is apparently because of the  crystalizing situation - discussed at length during the previous  day's hearing and raised again the second day of trial - that  without their expert, the plaintiffs were not going to be able  enter into evidence the documents and testimony that would  support its EMTALA claim.  As the district court said on that  last day:


27
You have been made aware at least since last  summer of the deficiencies in the discovery  provided by the plaintiffs . . . .  I think  you are aware of the rule now that you come  in today with that belated[] case list  . . . and I think what you are trying to do  is play around with the Court.  Even if I  . . .  allowed the medical record to come  in, there is no way that you can prove [an  EMTALA violation].  A proffer is not  sufficient.  A proffer in trial does not  supply whatever is missing from the  witnesses . . . .   [A]nd even if you [rely  on] an adverse witness, . . . .  that  adverse witness is going to tell you that  they followed the protocol and they rendered  an appropriate  medical screening] . . . . That is if I allowed you do that which I am  not going to allow you to do . . . .


28
. . . .


29
It is a shame, I am really sad and  sorry to see that such practice has occurred  in my courtroom but that is the ruling of  the court so since you will not have any  testimony of . . . a medical expert and  since you cannot prove that it was an EMTALA  violation and since there is a motion to  dismiss pending by counsel for the  defendants, with this turn of events I am  going to grant the motion to dismiss and I  am going to enter a judgment in favor of the  defendant dismissing this case at this  moment.  There will be no more jury trial, I  am granting defendant's motion to dismiss  for failure to state that claim under which  relief can be granted in view of the fact  that you have no evidence to prove the  EMTALA violation.


30
Without an expert witness through which to enter  medical records or provide an opinion in support of their  allegations that the defendant failed to "appropriately screen"  and "stabilize" Rosa Rivera's emergency condition, allegedly  causing her death, plaintiffs could not satisfy their burden of  proving an EMTALA violation.  We find no legal error in the  district court's ruling dismissing plaintiffs' case.8


31
Plaintiffs' last attempt at salvaging their case is to  argue that the district court abused its discretion when it  dismissed plaintiffs' case with prejudice.  Plaintiffs argue  that dismissal with prejudice is too harsh a sanction because  the discovery problems were caused by justifiable  misunderstandings and because, plaintiffs believe, defendant  will not be prejudiced should plaintiffs be permitted to  reinstate their case. We disagree.  Conduct which may warrant  dismissal of a claim with prejudice includes "disobedience of  court orders, [disregarding] warnings, [and] contumacious  conduct...." Figueroa Ruiz v. Alegria, 896 F.2d 645, 648 (1st  Cir. 1990) (quotation marks omitted).  The district court made  explicit and lengthy findings of egregious discovery abuses by  the plaintiffs that support precisely this standard.  The  district court was well within its discretion in concluding that  plaintiffs' disregard for their obligations under the Federal  Rules of Civil Procedure warranted the most severe sanction. See Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit  Int'l, Inc., 982 F.2d 686, 691-92 (1st Cir. 1993) (upholding a  dismissal with prejudice under Fed. R. Civ. P. 16(f) for party's  failure to appear at the scheduled pretrial and settlement  conference, his failure to prepare a pretrial order, and his  failure to otherwise comply with the court's orders); Barreto v. Citibank, N.A., 907 F.2d 15, 16 (1st Cir. 1990) (taking note of  the "well established principle that discovery orders, other  pre-trial orders, and, indeed, all orders governing the  management of a case are enforceable under pain of sanction for  unjustifiable violation" and holding that dismissal was  warranted to deter litigants from misconduct impeding the  court's ability to manage its limited resources).


32
For all of these reasons, we affirm the judgment below. Costs to appellees.



Notes:


1
  Initially, in addition to the EMTALA claim, plaintiffs  alleged malpractice claims against fictitious co-defendants  under the district court's supplemental jurisdiction.  Those  claims and defendants were voluntarily dismissed from the action  on June 7, 1999.


2
   Defendant's motion, filed December 13, 1999, was entitled  "Motion To Dismiss For Lack Of Subject Matter Jurisdiction  and/or For Failure To State A Claim For Which Relief Can Be  Granted."  For purposes of brevity here, we entitle it simply  Motion to Dismiss.


3
   The three motions to compel were filed on June 16, 1999,  July 29, 1999 and January 18, 2000.  The action itself was filed  on November 8, 1996 and discovery began on May 16, 1997.


4
  Although defendant managed to get permission from  plaintiffs to request hospital records of the deceased through  court order, a required procedure under Puerto Rico law, see Puerto Rico Law 101 of July 1965, §3-202, the very general  information plaintiffs provided defendant in order to fulfill  those requests was inadequate.  The hospitals to whom defendant  submitted the requests for information about Rosa Rivera were  unable to find many relevant records based on the information  provided.


5
  As the court noted, plaintiffs' proffer of the requested  information on the day after the trial was to begin, and after the court had already ruled against the plaintiffs on this  issue, showed that the plaintiffs misled both the party and the  court when they said they were unable to procure the requested  information.  The belated proffer also was insufficient to cure  the harm caused to the defendant as the trial had already begun;  the district court, having delayed the trial date twice already  at the plaintiffs' request, was not going to delay it any  further; and therefore, the defendant was short of time, due to  no fault of its own, to properly prepare cross-examination and  rebuttal of plaintiffs' expert based on the new information.


6
  We need not determine whether the exclusion of plaintiffs'  expert was specifically authorized and directed by Rule 37(c)'s  prohibition against the use of "any witness or information not  so disclosed."  Whether or not this first sentence of Rule 37(c)  applied, exclusion of the expert and dismissal of the case was  clearly authorized under subparagraphs (B) and (C) of  subdivision (b)(2) of Rule 37, incorporated into 37(c).


7
  On the first day of trial, before hearing the parties on  the outstanding motions to compel, the district court explicitly  acknowledged defendant's motion to dismiss, saying that "the  matter is under advisement." See supra note 2.


8
   Although it is true, as appellants points out, that the  effect of excluding their expert was to dismiss their case, we  note that dismissal of the case is one of the sanctions provided  by Rule 37(c)(1), as it incorporates 37(b)(2)(C) into its  arsenal.  See Rule 37(c).  See also Damiani v. Rhode Island  Hosp., 704 F.2d 12, 15 (1st Cir. 1983)(discussing the Supreme  Court's ruling in National Hockey League v. Metropolitan Hockey  Club, 427 U.S. 639 (1979) as "a turning point in the law on the  use of the sanction of dismissal for failure to obey a discovery  order").


