960 F.2d 239 (1st Cir. 1992), 91-2026, Thibeault v. Square D Co.

Docket Nº:91-2026.
Citation:960 F.2d 239
Party Name:Charles M. THIBEAULT, Plaintiff, Appellant, v. SQUARE D COMPANY, Defendant, Appellee.
Case Date:March 30, 1992
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 239

960 F.2d 239 (1st Cir. 1992)

Charles M. THIBEAULT, Plaintiff, Appellant,


SQUARE D COMPANY, Defendant, Appellee.

No. 91-2026.

United States Court of Appeals, First Circuit

March 30, 1992

Argued Feb. 5, 1992.

Page 240

[Copyrighted Material Omitted]

Page 241

Joseph M. Orlando, with whom Brian S. McCormick and Orlando & Associates were on brief, for plaintiff, appellant.

John F. Toomey, with whom Clark W. Yudysky and Gallagher & Gallagher, P.C., Boston, Mass., were on brief, for defendant, appellee.

Before SELYA, Circuit Judge, ALDRICH and BOWNES, Senior Circuit Judges.

SELYA, Circuit Judge.

Plaintiff-appellant Charles M. Thibeault challenges the entry of summary judgment in favor of defendant-appellee Square D Company. The linchpin of this appeal is whether the district court lawfully precluded certain expert testimony which Thibeault hoped to introduce at trial. This issue is of paramount importance because, in the absence of such evidence, Thibeault concedes that the record supports summary disposition of his civil action. Concluding that the trial court did not abuse its discretion in excluding the proffer, we affirm.


In December 1985, a punch press crushed appellant's left arm. The press was equipped with a foot switch manufactured by Square D. In late 1988, appellant sued Square D for damages. His complaint posited several theories of liability involving the design and manufacture of the foot switch.

In April 1989, Square D served interrogatories under Fed.R.Civ.P. 33. Interrogatory number 11 asked Thibeault to identify the experts he would call at trial and to elucidate upon the substance of their expected testimony. In July 1989, Thibeault answered the interrogatory by writing: "The plaintiff has not yet selected experts, but reserves the right to supplement this interrogatory timely [sic] before trial."

On November 26, 1990, a pretrial conference was held. Fed.R.Civ.P. 16(b). Counsel agreed to try the case in September 1991. The court explained the workings of its rolling trial list. The docket entry reflects that the parties would be "ready for trial as of September 1 [1991]."

On August 2, 1991, Square D filed its motion for summary judgment. On August 13, the district court issued two (potentially conflicting) orders. The court set the case for trial on a rolling list beginning September 3, 1991, promising only twenty-four hours notice of the start of trial. The court also set the summary judgment motion for hearing on October 8, 1991. Despite the odd juxtaposition of dates, there was not a peep of protest--or even an inquiry--from any of the parties. On August 19, appellant filed various discovery-related motions. On September 10, appellant filed both his response to Square D's summary judgment motion and a motion to remove the case from the current trial list.

On September 11, the court informed counsel that the case would be reached for trial on September 16. On September 12, appellant served a thirty-seven-page-long supplementary answer to Interrogatory No. 11. The supplementary answer named seven experts, including three engineers who, appellant proposed, would testify as

Page 242

to liability. On September 13, Square D filed a motion to preclude appellant's use of the experts' testimony. The primary basis for this motion was that Thibeault's opposition to the motion for summary judgment intimated a shift in the prevailing winds. Square D contended that Thibeault was belatedly attempting to convert the case's focus from electrical malfunction, attributable to faulty manufacture and design, to a supposed deficiency in the foot switch's mechanical guards. Square D also cited the lack of a timely disclosure of the experts' identities.

When the parties appeared for a final pretrial conference on September 13, the district judge denied Thibeault's motion to postpone the trial. Next, citing Thibeault's tardiness in supplementing his answers to interrogatories and his last-minute revision of his case concept, the judge granted Square D's motion to preclude the proffered expert testimony. The judge then considered, and allowed, Square D's motion for summary judgment. Thibeault's case proceeded to trial against another defendant. It was settled.

There are two issues on appeal. The first issue centers around timing, that is, whether the district court acted permissibly in electing to hear and determine Square D's Rule 56 motion at the final pretrial conference. The second issue centers around the propriety of the district court's preclusionary order. Although the issues are interrelated, we examine them sequentially.


Appellant claims that the lower court erred in hearing the summary judgment motion on September 13. Neither of appellant's two reasons possesses convictive force.

  1. Lack of Time for Discovery.

    Appellant's lament that summary judgment was premature because he was not afforded sufficient time for discovery is idle. Admittedly, lawyers sop up time like a sponge soaks up water. There is, however, a difference; that is the purpose of the sponge. We firmly believe there must be limits to the amount of time an attorney can command for pretrial preparation. 1 By September of 1991, the case had been pending for well over two and one-half years. Exercising due diligence, thirty-three months is more than enough time to conduct pretrial discovery in a run-of-the-mill product liability action.

    To be sure, appellant tries to shift the blame, claiming that Square D's evasion of a deposition was the principal reason for the soporific pace. The claim is a catchpenny. The record shows that, over the course of time, Square D's deposition was scheduled on several occasions. Each time, it was postponed by mutual consent. Given the fact that appellant invariably agreed to the postponements, never filing a timeous motion to compel Square D to attend the deposition, his claim of deprivation has a hollow ring. A litigant who has not actively pursued discovery cannot be heard to complain that too little discovery was had.

  2. The Scheduling Snafu.

    Appellant's remaining point has more to commend it. He assails the district court's sudden decision to hear the Rule 56 motion on September 13 after having originally scheduled a hearing for October 8. We review a district court's decisions concerning pretrial matters, such as docket control and case management, with a deferential mien. See In re San Juan Dupont Plaza Hotel Fire Litigation, 859 F.2d 1007, 1019 (1st Cir.1988). The appellant carries the burden of showing an abuse of discretion--and the burden is a heavy one. See id.; see also Independent Oil & Chem. Workers of Quincy, Inc. v. Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir.1988) (discussing general parameters

    Page 243

    for an abuse-of-discretion inquiry). Appellant has failed to shoulder this heavy burden.

    Appellant's bellwether case is Marshak v. Tonetti, 813 F.2d 13 (1st Cir.1987) (per curiam). There, we found an abuse of discretion when the district court unilaterally accelerated the trial date by several weeks without advance notice to counsel. Id. at 18. Marshak, however, is not a fair congener. In the case at hand, appellant received ample notice--ten months, more or less--that his case would likely be tried in September of 1991. Despite the confusion that may have been created by the court's designation of October 8 as the scheduled date for hearing the summary judgment motion, the court's repeated warnings that the case could be reached for trial at any time on or after September 3 obviously took...

To continue reading