Serrano Perez v. FMC Corp.

• Court: Court of Appeals for the First Circuit
• Decided: February 11, 1993
• Docket: 92-2060
• Status: Published

Opinion

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

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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,
            _____________    ___________________________

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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

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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.

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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.

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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

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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.
                      _______________________________________

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