United States Court of Appeals 

For the First Circuit 

No. 16-2291 

NANA AMOAH, 

Plaintiff, Appellant, 

v. 

DENNIS MCKINNEY; SMITH TRANSPORT, 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Timothy S. Hillman, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Torruella and Barron, Circuit Judges. 

 

Stephen Gordon, with whom Kenneth Onyema was on brief, for 

appellant. 

 Matthew C. Welnicki, with whom Melick & Porter, LLP was on 

brief, for appellees. 

November 13, 2017 
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BARRON, Circuit Judge. This case arises from a suit for 

negligence that the plaintiff, Nana Amoah, brought against the 

driver of a tractor trailer and the company that owned the vehicle 

and hired the driver, after Amoah and the driver were involved in 

a vehicle collision that occurred in Massachusetts on October 17, 

2014. The District Court granted summary judgment to the 

defendants after ruling favorably for the defendants on their 

motion to strike the plaintiff's statements of facts. For the 

reasons that follow, we conclude that the District Court did not 

abuse its discretion in ruling on the defendants' motion to strike 

those statements of facts, and that summary judgment in favor of 

the defendants, based on the record that remained, was proper. We 

therefore affirm. 

I. 

Amoah filed suit against defendants Dennis McKinney and 

Smith Transport, the appellees, in November 2014, in Worcester 

Superior Court, following the injuries that Amoah suffered when 

his car crashed on a highway in Massachusetts. Amoah alleges that 

the tractor trailer that McKinney was driving, and which was owned 

by Smith Transport, struck Amoah's car from behind and caused him 

to lose control and to strike a median. Amoah brought claims for 

negligence against both defendants, and negligent entrustment and 

negligent hiring against Smith Transport. 
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The defendants, who countered that Amoah first lost 

control of his car and struck the median before bouncing off and 

hitting McKinney's tractor trailer, removed the case to the 

District Court for the District of Massachusetts based on 

diversity. Both parties thereafter moved for summary judgment and 

made motions to strike various statements of facts that the other 

party had offered. 

The District Court referred all of the parties' opposing 

motions to a Magistrate Judge. The Magistrate Judge recommended 

granting the defendants' motions to strike many of the facts that 

were set forth in Amoah's statement of facts in support of his own 

summary judgment motion, and the entirety of Amoah's statement of 

facts set forth in Amoah's opposition to defendants' summary 

judgment motion, including two expert reports attached as 

exhibits. The Magistrate Judge did so on the ground that Amoah, 

in offering those statements of facts, had failed to comply with 

Local Rule 56.1, which requires oppositions to motions for summary 

judgment to include "a concise statement of the material facts of 

record as to which the moving party contends there is no genuine 

issue to be tried." LR, D. Mass 56.1. The Magistrate Judge then 

recommended that the defendants' motion for summary judgment be 

granted as there was "no contrary expert opinion as to the cause 

of the accident" left in the record that could counter the 
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defendants' facts, including the defendants' expert report ("the 

Melcher Report") regarding the accident's cause. 

Amoah filed objections to the Magistrate Judge's report 

and recommendation. The District Court then adopted the Magistrate 

Judge's report and recommendation and entered summary judgment in 

favor of the defendants.

II. 

 We first consider Amoah's contention that the expert 

reports attached to his opposition to defendants' motion for 

summary judgment should not have been struck and thus that the 

summary judgment ruling may not stand. We review a ruling granting 

a motion to strike for an abuse of discretion, see Cummings v. 

Standard Register Co., 265 F.3d 56, 62 (1st Cir. 2001), and we 

find none here. 

 The Magistrate Judge recommended to strike the two 

expert reports attached to Amoah's opposition to the defendants' 

motion for summary judgment because Amoah provided the expert 

reports to the defense nearly four months after the deadline for 

expert disclosures as set by a scheduling order. The Magistrate 

Judge found that the late disclosure was neither "substantially 

justified" nor "harmless" and thus that the reports should be 

struck under Macaulay v. Anas, 321 F.3d 45, 51 (1st Cir. 2003). 

Macaulay provides that where a district court opts to 

preclude evidence, 
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[W]e review that decision with reference to a 

host of factors, including: (1) the history of 

the litigation; (2) the sanctioned party's 

need for the precluded evidence; (3) the 

sanctioned party's justification (or lack of 

one) for its late disclosure; (4) the 

opponent-party's ability to overcome the late 

disclosure's adverse effects -- e.g., the 

surprise and prejudice associated with the 

late disclosure; and (5) the late disclosure's 

impact on the district court's docket. 

Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 78 (1st Cir. 

2009) (citing Macaulay, 321 F.3d at 51). And here, the District 

Court accepted the Magistrate Judge's report and recommendation, 

which specifically found that the "[p]laintiff has repeatedly 

flouted his discovery obligations and for this court to excuse his 

conduct in order to protect an opportunity for a merits-based 

determination would not only reward such conduct, but also would 

disregard all but the second of the Macaulay factors, diminishing 

a five-part test to a single factor." 

Amoah argues on appeal that his late disclosure of the 

experts who produced the reports should have been excused because 

it was based on a belief than an order postponing a status 

conference essentially authorized an open-ended discovery period. 

But, the record shows that Amoah failed to disclose the experts 

even after defense counsel advised Amoah that the discovery 

deadline had not been canceled. And thus, as the Magistrate Judge 

correctly found, at a minimum, "it would have been prudent for 
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plaintiff to inquire" about the deadline if there was any 

confusion.

In addition, the record supports the conclusion that the

defendants would have been substantially prejudiced by allowing 

the late expert reports. As the Magistrate Judge found, if those 

reports were allowed, then "defendants would be required to 

withdraw their current motion for summary judgment, depose 

plaintiff's experts, perhaps have their own experts prepare 

amended expert reports based on plaintiff's expert reports, and 

then -- if still deemed prudent -- file a new motion for summary 

judgment."

Even though we find no abuse of discretion in the 

decision to strike Amoah's expert reports, there did remain in the 

record the defendants' own statement of facts and the Melcher 

Report. And, Amoah now contends that the facts that remained in 

the record precluded the granting of summary judgment to the 

defendants, because those remaining facts themselves created a 

genuine issue of disputed fact as to whose version of the accident 

was correct.

In particular, Amoah argues that defendants' own 

statement of facts referenced facts that contradicted the 

conclusion reached in the Melcher Report regarding the cause of 

the accident. However, the "facts" in the defendants' statement 

that Amoah refers to, such as Amoah's representations in both his 
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Personal Injury Protection application and his response to the 

defendants' interrogatory that the cause of the accident was that 

"[his car] was struck by a Smith Trucking vehicle," are nothing 

more than conclusory assertions about what happened. Accordingly, 

they provide no basis for concluding that the summary judgment 

ruling was wrong. See Rivera-Corraliza v. Morales, 794 F.3d 208, 

227 (1st Cir. 2015) (holding that conclusory assertion without 

factual support constitutes waiver of a claim). 

Nor is there anything else in the record that supports 

Amoah's assertion in his brief to us that the record contains 

evidence that he observed the tractor trailer hitting his car. In 

fact, Amoah admitted in his deposition that he was not looking in 

his rearview mirror and did not see how the accident occurred. 

Thus, when the Magistrate Judge found that the "in effect 

uncontroverted" evidence supported the defendants' version of how 

the accident occurred and therefore that summary judgment was 

warranted, the Magistrate Judge was not -- as Amoah contends -- 

impermissibly ruling on the credibility of the Melcher Report. 

Instead, to use the Magistrate Judge's own words, "the 

determination that summary judgment is warranted in favor of 

defendants plainly is predicated on the striking of plaintiff's 

opposition and expert reports," as, without them, the Magistrate 

Judge found, there was simply no evidence in the record to support 
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plaintiff's version of the events and thus to create a factual 

dispute with the account given in the Melcher Report. 

To be sure, Amoah does argue that the Melcher Report 

itself should have been struck. But even if striking it would 

somehow aid Amoah's cause -- notwithstanding the Magistrate 

Judge's ruling that there was nothing in the record to support the 

plaintiff's version of events -- we do not see how it was an abuse 

of discretion to decline to strike the Melcher Report. 

The crux of Amoah's contrary argument is that the Melcher 

Report was not based on scientific or technical knowledge, because 

it included an analysis of testimony offered by the trooper at the 

scene of the collision, and thus was not admissible pursuant to 

Rules 702 and 703 of the Federal Rules of Evidence. But, as the 

Magistrate Judge correctly found, Rules 702 and 703 "govern the 

admissibility of expert evidence . . . not the materials that 

factor into an expert's determinations." 

Moreover, Amoah's argument that the Melcher Report was 

not signed under penalty of perjury and thus was inadmissible fares 

no better. Amoah did not make this argument below, and we find 

that it now fails on plain error review, as the Melcher Report's 

admission did not affect Amoah's substantial rights. After all, 

the Magistrate Judge found that there was no evidence in the record 

to support Amoah's version of the events. 
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III. 

Accordingly, the judgment of the District Court is 

affirmed.