United States Court of Appeals

For the First Circuit

No. 00-1278

JOSE ANTONIO ORTIZ-LOPEZ, ET AL.,

Plaintiffs, Appellants,

v.

SOCIEDAD ESPAÑOLA DE AUXILIO MUTUO Y 

BENEFICIENCIA DE PUERTO RICO, ETC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Torruella, Chief Judge,

Campbell, Senior Circuit Judge,

and Selya, Circuit Judge. 

John Ward-Llambías with whom Ricardo Ruiz-Diaz and Ward &

Ward were on brief for appellants.

Jeannette M. López-de-Victoria for appellee.
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-

May 3, 2001

CAMPBELL, Senior Circuit Judge. Plaintiffs sued

Sociedad Española 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.

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
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.

-3-

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. 

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. 

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
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. 

-4-

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
-5-

from the plaintiffs, although defendant had requested

information of this type all along. 

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 . . . .”

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
-6-

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.

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. 

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
-7-

discuss the matter and recessed until the following morning when

the jury would be brought in for opening arguments.

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.

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
-8-

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:

(b) Failure to Comply With Order

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:

(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;

(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.

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
-9-

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). 

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 

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.
-10-

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 “selfexecuting 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.

 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
-11-

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. 

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. 

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.

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
-12-

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.”)

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
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. 

-13-

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

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
-14-

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) --
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). 

-15-

frustrates the purpose of candid and cost-efficient expert

discovery.

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
-16-

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).
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.

-17-

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:

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
-18-

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 . . . . 

. . . .

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. 

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
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”).

-19-

proving an EMTALA violation. We find no legal error in the

district court’s ruling dismissing plaintiffs’ case.8

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
-20-

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).

For all of these reasons, we affirm the judgment below.

Costs to appellees.