Nana Amoah v. Dennis McKinney; Smith Transport

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.

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