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McKeague v. One World Technologies, Inc.

United States Court of Appeals, First Circuit

June 8, 2017

TODD MCKEAGUE, Plaintiff, Appellant,


          Alfred Paul Chamberland, Law Office of Alfred Chamberland, Robert Gerard LaFlamme, and Law Office of Robert G. LaFlamme on brief for appellant.

          Anthony V. Agudelo and Sugarman, Rogers, Barshak & Cohen, P.C. on brief for appellees.

          Before Torruella, Lynch, and Kayatta, Circuit Judges.

          KAYATTA, Circuit Judge.

         This appeal arises out of a civil case in which the plaintiff's two lawyers did nothing to prosecute the plaintiff's claims within generous deadlines, received a second chance, and then failed to oppose a pending motion for summary judgment. On such a record, we find that the district court did not abuse its discretion in failing to grant yet another reprieve.


         Todd McKeague suffered injuries to his hand while using a table saw. In late 2014, he sued the three defendants, claiming that they were responsible for a defect in the design of the saw that proximately caused his injuries. Defendants removed the suit to federal court. In April of 2015, the parties filed a discovery plan that the district court approved and adopted as an order under Federal Rule of Civil Procedure 16(b). The plan required the parties to complete fact discovery by December 31, 2015. It further required plaintiff to serve expert disclosures by January 29, 2016, and it required defendants to serve expert disclosures by March 11, 2016. Expert depositions were to be taken by April 29, 2016. After the case was assigned to a new judge, the court modified the order slightly to require that all discovery requests be served by December 31, 2015, with fact discovery to be completed within sixty-five days. The court also set May 31, 2016, as the deadline for filing summary judgment motions, and June 30, 2016, as the response date. Trial was scheduled for September 19, 2016. All in all, this was plenty of time within which to conduct pretrial proceedings in ordinary course.

         Defendants thereupon propounded discovery, serving interrogatories and document requests and deposing plaintiff, all well within the deadlines. Inexplicably, plaintiff served no discovery before the December 31, 2015, deadline. Instead, in early February of 2016, and without leave of the court, plaintiff belatedly served written discovery requests. Plaintiff's counsel prevailed upon defendants to assent to a motion to extend the discovery deadline nunc pro tunc, but then never filed the motion.

         Worse yet, apparently plaintiff's counsel did not at the outset retain an expert in this design-defect product-liability case in which plaintiff concedes an expert is required in order to get to trial. See Triangle Dress, Inc. v. Bay State Serv., Inc., 252 N.E.2d 889, 891 (Mass. 1969); Esturban v. Mass. Bay Transp. Auth., 865 N.E.2d 834, 835-36 (Mass. App. Ct. 2007). But see Smith v. Ariens Co., 377 N.E.2d 954, 957 (Mass. 1978) ("[I]n cases in which a jury can find of their own lay knowledge that there exists a design defect which exposes users of a product to unreasonable risks of injury, expert testimony that a product is negligently designed is not required."). In his initial disclosures under Federal Rule of Civil Procedure 26(a)(1) filed on June 12, 2015, plaintiff identified Dr. Stephen Gass, David Fanning, and David Fulmer (the cofounders of a table saw manufacturer in Oregon) and Darry Robert Holt (a mechanical engineer) as possible expert witnesses who could testify about the safe design of table saws and the likelihood that defendants knew of safer alternative designs for the saw that plaintiff alleged injured him, but plaintiff noted in his disclosure that he had "not retained any expert witness as of the date of this filing." In an interrogatory answer served four months later on October 26, 2015, plaintiff added another name to the list, stating that he might call as an expert witness an engineer named Richard Montifusco. Plaintiff's counsel, however, did not retain Montifusco or any of the other four possible experts at that time. The final expert disclosure deadline under the scheduling order came and went with no expert designation by plaintiff. Even when defendants subsequently and timely designated their own expert, plaintiff's lawyers were nowhere to be found, seemingly content to make no effort at a counter-designation. Nor was this merely a problem of not filing something; plaintiff's lawyers had retained no expert to designate.

         Plaintiff's counsel's cumulative neglect came to a head when defendants timely and predictably filed a motion for summary judgment on May 31, 2016. Citing Enrich v. Windmere Corp., 616 N.E.2d 1081, 1084 (Mass. 1993), and a handful of other cases, defendants argued in their motion, among other things, that the absence of any expert testimony was fatal to plaintiff's case given that the table saw functioned properly and suffered from no defect obvious to any layperson.

         Plaintiff's counsel thereupon threw themselves (or, rather, threw plaintiff) on the mercy of the court, asking that instead of granting the well-grounded motion for summary judgment, the court reopen discovery, set a new expert-disclosure deadline for the plaintiff, order defendants to respond to plaintiff's untimely discovery, and push back the date by which plaintiff needed to oppose the summary judgment motion. To the likely annoyance of the diligent defendants, the district court granted the delinquents all they sought. The net effect was to swap the order of production, allowing plaintiff to designate an expert after defendants had already done so, and after reviewing defendants' summary judgment motion. In other words, plaintiff received both mercy and some arguable advantage. Presumably, the district court decided that any prejudice to defendants was minimal, enough so to favor an outcome driven by the merits rather than by plaintiff's counsel's neglect. In its words, the district court was "reluctant to excuse [plaintiff's counsel's] neglect, but [was] unwilling to effectively prevent Plaintiff from pursuing his case solely because of [it]." The indulgence was complete, granting plaintiff all the time requested, and more, and without any sanction.

         Having evaded the potential consequences of their remarkable inattention to their client's case, plaintiff's lawyers unfortunately stayed their irresponsible course. The new, extended deadline for filing an opposition to the long-pending motion for summary judgment came and went without anything -- even a new motion for extension -- being filed on plaintiff's behalf. On August 10, 2016, two days after the new deadline passed, the district court dismissed the case for failure to prosecute and failure to comply with scheduling orders.

         Twelve days after the case was dismissed -- yes, twelve, not one or two -- plaintiff moved for reconsideration. He argued he had timely retained an expert, but that the expert needed more time to review a large number of documents received from defendants on August 2, 2016, and that the documents should have been delivered by defendants on August 1, ...

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