                 Not for Publication in West’s Federal Reporter

          United States Court of Appeals
                        For the First Circuit


No. 09-2022

                              CHERISE ROACH,

                         Plaintiff, Appellant,

                                      v.

              CUNA MUTUAL INSURANCE CO., INC., ET AL.,

                        Defendants, Appellees.


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

          [Hon. William G. Young,          U.S. District Judge]


                                   Before

                       Boudin, Circuit Judge,
                     Souter, Associate Justice,*
                     and Howard, Circuit Judge.


     Sergei Lemberg, with whom Lemberg & Associates, LLC was on
brief, for appellant.
     Edward C. Cooley, with whom Giarrusso, Norton, Cooley &
McGlone, P.C. was on brief, for appellees.



                               July 14, 2010




     *
          The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
          SOUTER, Associate Justice.   A subsidiary of the appellee

CUNA Mutual Insurance Company, Inc., was the transferee of a bank’s

interest in a truck subject to a defaulted installment loan, and

the CUNA subsidiary retained a Texas company, the appellee Assets

Recovered, LLC to repossess the vehicle.     The truck was found on

the lot of Stanley Services, Inc., which had taken possession of it

using equipment of its own, according to a receipt indicating a

mileage figure of 66,782. In anticipation of eventual sale by Auto

Auction of New England, Assets acted on CUNA’s behalf in obtaining

a Texas title certificate.   Since the truck was locked and had no

keys, Assets did not read the truck’s digital odometer, but instead

gave the Texas agency an odometer reading of 66,782 miles, not

realizing that the mileage figure on the receipt referred to

Stanley’s transport vehicle, not the truck.     A title certificate

was issued accordingly.

          Thereafter, new keys were made for the truck and it was

discovered that the odometer actually read 31,245.     Auto Auction

had not yet sold the truck, and Assets still had the title

certificate with the higher, wrong number.    Assets applied for an

amended certificate showing the actual odometer figure, which was

obtained before the truck changed hands, first to a wholesaler, and

then to a retail dealer, who finally sold it to the appellant,

Cherise Roach.   She took title by accepting a certificate showing

mileage under 32,000.


                                -2-
          In due course, Roach discovered she had a lemon and sued

the appellees CUNA and Assets1 on a claim they had violated a law

commonly known as the Odometer Act, which requires a transferor of

a motor vehicle to state correct mileage or to say that mileage is

unknown, 49 U.S.C. § 32705(a)(1)(A) and (B), and gives a transferee

a private right of action for a statutory violation committed with

intent to defraud, § 32710(a) and (b).      The parties agree the

intent requirement may be satisfied by showing a transferor’s

reckless disregard for accuracy, and we may assume this to be so.

See Haynes v. Manning, 917 F.2d 450, 453 (10th Cir. 1990).      On

cross motions, the district court granted summary judgement to CUNA

and Assets.   We affirm.

          The dispositive issue as the case was litigated in the

trial court was the nature and significance of the appellees’

intent when obtaining the first title certificate with the 66,782

number: was there a genuine dispute about any material fact bearing

on the intent that stood in the way of either Roach’s or the

appellees’ entitlement to judgement as a matter of law?    Roach’s

answer in her favor seems to assume that an error resulting from

misreading a record (Stanley’s record, in this case) is immune to

subsequent correction and is an actionable violation of the Act on

the complaint of any downstream transferee who later learns that


     1
       Appellee Wachovia Corporation informed this court by letter
that it had settled with Roach and would not file a brief in this
appeal.

                               -3-
the error had once been made.        Perhaps sensing the unlikelihood

that the law could be in her favor, she resorts to alternative

stratagems: on the one hand, she claims that reliance on the

earlier, mistaken figure is not a necessary element of a private

claim; on the other, she claims that she was “entitled . . . to

rely on the veracity of historical odometer disclosures” and was in

fact “guided” by the earlier figure to make an imprudent purchase.

           We agree with the district court that Roach’s position is

untenable, however stated. First, we will assume for argument that

the mistaken reading of Stanley’s receipt (as showing the truck’s

mileage)   was   negligent,   but   negligence   is    not   recklessness

tantamount to fraudulent intent, and reliance upon the receipt in

these   circumstances   (where   access   to   the    odometer   was   not

immediately possible and where the mistake was timely corrected

before Assets transferred the truck) cannot fairly give rise to an

inference of reckless disregard for the truth.         See W. Keeton et

al., Prosser and Keeton on the Law of Torts § 34, p. 213 (5th ed.

1984) (defining “reckless” as intentional acts “of an unreasonable

character in disregard of a known or obvious risk . . . usually

accompanied by a conscious indifference to the consequences”); cf.

United States v. Ranney   298 F.3d 74, 78 (1st Cir. 2002) (“reckless

disregard for the truth” requires proof that the speaker “in fact

entertained serious doubts as to the truth of the [statement]” and




                                    -4-
may be “inferred from circumstances evincing obvious reasons to

doubt [its] veracity” (internal quotation marks omitted)).

          Next, even if the appellees had been reckless, Roach’s

claim must fail for the further reason that she can prove no injury

caused by the allegedly fraudulent misrepresentation. See Huson v.

Gen. Motors Acceptance Corp., 108 F.3d 172, 173 (8th Cir. 1997) (no

liability where a failure to investigate “could not have caused any

injury” to the plaintiffs).   There is no support in the statute for

the astonishing notion that a mistake once made, whatever the

intent behind it, is impervious to correction, such that a buyer

apprised of the correction may ignore it. On the contrary, Roach’s

position is at odds with the very justification for providing a

private cause of action for statutory violation; there may well be

more than one strand of policy behind the private remedy, but at

the least it is a remedy for injury.      See 49 U.S.C. § 32710(a)

(creating liability for treble damages with a $1,500 minimum).   It

is a source of compensation for harm traceable to a statutory

violation, whereas Roach can trace no causation to a mileage

statement that had been amended by the time she bought the truck.

In sum, there were no undisputed facts that entitled Roach to a

finding that Assets acted with reckless disregard of the truth when

it filed the original application for a title certificate, nor

would such a finding, even if permissible, support a conclusion of

liability on Roach’s private complaint.


                                -5-
             The appellees’ converse request for judgement as a

matter of law fares better.      There being no proffered evidence to

the contrary, the only sensible explanation for the initial higher

figure is that someone at Assets read the Stanley record as

referring to mileage on the repossessed truck, instead of Stanley’s

recovery vehicle. As we explained, that was conceivably negligent,

but it could not reasonably be seen, without more, as evidence of

reckless disregard for truth.           Moreover, as the district judge

concluded, Assets’s correction of the figure before transfer of the

truck   precluded    any   reasonable    inference   that   Assets   or   its

principal, CUNA, ever meant to defraud someone when it used the

earlier number. However true it is that “summary judg[e]ment is to

be used sparingly when intent or motive is at issue,” Catrone v.

Thoroughbred Racing Ass’ns of N. Am., Inc., 929 F.2d 881, 889 (1st

Cir. 1991), this is the unusual instance in which no fact finder

could   reasonably    infer   the   fraudulent   intent     necessary     for

liability.   And of course, as noted before, the correction stands

in the way of finding any causation between the original statement

and Roach’s bad buy, as the private cause of action would require.

           The view of the case just set out rests on our resolution

of disputed issues about the use of two affidavits, the first being

that of Filipe Ossa, Assets’s managing officer, filed by the

appellees. Roach objected that Ossa was not speaking from personal

knowledge, with the consequence that his affidavit was incompetent


                                    -6-
as summary judgement evidence. See Fed. R. Civ. P. 56(e)(1); Perez

v.   Volvo     Car    Co.,   247   F.3d    303,       315-16      (1st     Cir.    2001).

Howevermuch Roach would now like to expand the scope of the

statements to which this objection might refer, in the district

court   her    sole     specific   reference          was   to    Ossa’s     conclusory

allegation that Assets did not use the wrong figure intentionally

when it submitted the first title application.                         See Addendum to

Reply   Brief    for     Appellant   4.         But    this      is    a   point   of    no

consequence, for disregarding Ossa’s conclusion would not affect

the appellees’ entitlement to judgement. As explained before, even

if the original application included a reckless misstatement, Roach

could not show a causal connection to her decision to buy the truck

accompanied by a corrected title certificate.                         Any error in the

district court’s consideration of the affidavit was thus harmless.

              The second disputed affidavit goes to Roach’s fall-back

position that even the corrected figure of 31,245 was a fraudulent

falsehood, despite its being the reading on the odometer as found

when the new keys allowed inspection of the digital display.                            Her

only evidence for this claim was the affidavit of William Zaher,

the principal of a “diagnostic” service that Roach asked to examine

the truck after she had driven it, unsatisfactorily, for about

8,000 miles.         Zaher stated that he inspected the truck and found

its condition “entirely inconsistent” with the odometer reading.

On appellee’s motion, the district court struck the affidavit on


                                          -7-
the ground that Roach had failed to comply with the Rule 26

requirement that a party disclose the identity of any expert

witness to be relied upon and supply a report indicating the

witness’s qualifications to provide expert opinion testimony.   See

Fed. R. Civ. P. 26(a)(2)(B).

          There was no abuse of discretion in this ruling.      See

Poulis-Minott v. Smith, 388 F.3d 354, 357 (1st Cir. 2004).    Roach

claims that she disclosed that a “representative” of the diagnostic

service “may” testify about the relationship of odometer mileage to

the condition of the truck, but she supplied neither Zaher’s name

(also required, along with his address and phone number, by Rule

26(a)(1)(A)(I)) nor the basis claimed for his qualification as an

expert before she submitted his affidavit in support of her summary

judgment motion.   Her argument that, according to the court’s

scheduling order, the deadline for these disclosures was still

months off misses the mark.    “The purpose of the expert disclosure

rules is to facilitate a fair contest with the basic issues and

facts disclosed to the fullest practical extent” and to prevent

parties from seeking the “unfair tactical advantage that can be

gained by failing to unveil an expert in a timely fashion.”

Poulis-Minott, 388 F.3d at 358 (internal quotation marks omitted).

Roach’s failure to make the disclosures before she attempted to

offer the affidavit as evidence at summary judgement frustrated

that purpose, even if she still had time to make disclosures before


                                 -8-
the evidence would be offered at trial.       Equally to the point is

the requirement of Rule 56, invoked by Roach herself in objecting

to the Ossa affidavit, that affidavits on summary judgement must

show the admissibility of the proffered evidence by including,

among other things, an indication “that the affiant is competent to

testify on the matters stated.”   Fed. R. Civ. P. 56(e)(1).   Roach’s

failure to disclose whatever qualifications Zaher may have as an

expert runs afoul of the rule.          Her only response is that his

affidavit was proffered as that of a fact witness who happened to

be an expert, not as that of an expert, a claim that is manifestly

erroneous.   The Zaher affidavit was properly kept out, and without

it Roach had no basis to raise any issue of fact about the accuracy

of the actual odometer reading or the appellees’ reliance on it.2

          The judgement is affirmed.




     2
       Roach argues that the affidavit should have stood in the way
of granting appellees’ motion even if it was incompetent to support
her own, citing Hayes v. Douglas Dynamics, Inc., 8 F.3d 88 (1st
Cir. 1993).    The case is no help to her, holding only that an
affidavit must satisfy Rule 56, whoever wishes to rely on it.

                                  -9-
