Martinez v. United States ( 2022 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 20-1981
    MELILUZ MARTÍNEZ; NOEL MARTÍNEZ; NOELIE MARTÍNEZ; JESHICA
    MARTÍNEZ,
    Plaintiffs, Appellants,
    v.
    UNITED STATES,
    Defendant, Appellee.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Raúl M. Arias-Marxuach, U.S. District Judge]
    Before
    Barron, Chief Judge,
    Thompson and Kayatta, Circuit Judges.
    Michelle Annet Ramos-Jimenez for appellants.
    Robert P. Coleman III, Assistant United States Attorney, with
    whom W. Stephen Muldrow, United States Attorney, and Mariana E.
    Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
    Division, were on brief, for appellee.
    April 29, 2022
    BARRON, Chief Judge.    This appeal is from a grant of
    summary judgment against Noel Martínez-Marrero's four children in
    their medical malpractice suit under the Federal Tort Claims Act
    ("FTCA").   The plaintiffs filed the suit against the United States
    in the United States District Court for the District of Puerto
    Rico in 2016 in connection with the allegedly negligent treatment
    their father received in the days leading up to his death at the
    United States Department of Veterans Affairs Medical Center.     We
    reverse the grant of summary judgment against the plaintiffs and
    remand for further proceedings.
    I.
    We begin with a description of the undisputed facts and
    the procedural history.      We then describe some of the legal
    background to the analysis that follows.
    A.
    The following facts are not in dispute in this appeal.
    On October 17, 2014, Noel Martínez-Marrero, a sixty-six-year-old
    male with a history of medical conditions including chronic liver
    disease, arrived at the Medical Center ("Hospital") operated by
    the U.S. Department of Veterans Affairs in San Juan, Puerto Rico.
    He was experiencing, among other things, abdominal pain, jaundice,
    a headache, and vomiting.
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    The Hospital diagnosed Martínez-Marrero with obstructive
    jaundice and admitted him.      The Hospital treated Martínez-Marrero
    for a urine infection by placing him on the antibiotic, Zozyn.
    While at the Hospital, Martínez-Marrero fell down on
    October 19, 2014, and fractured his femur after attempting to rise
    from his stretcher.    Then, three days later, the Hospital switched
    Martínez-Marrero from Zozyn to a different antibiotic, Vancomycin,
    to treat his urine infection. The Hospital continued to administer
    this antibiotic to him for six days, until October 28, 2014.1
    Martínez-Marrero died one day later, on October 29.           His
    autopsy report detailed contusions, which a pathologist stated
    "imply bleeding."
    B.
    On August 3, 2016, the plaintiffs filed this lawsuit in
    the District of Puerto Rico pursuant to the FTCA against the United
    States, which oversees the Hospital.        See 
    28 U.S.C. §§ 1346
    (b),
    2671-2680.    The complaint seeks monetary damages and attorneys'
    fees for the United States' "negligence and omissions" that the
    plaintiffs    allege   caused   "mental   and   physical   anguish[]"   to
    Martínez-Marrero and "mental anguish[]" to themselves.
    1 Although the parties appear to list different dates
    for when Martínez-Marrero was placed on Vancomycin, we adopt for
    the purposes of this appeal the District Court's factual finding
    made in its summary judgment order that he began Vancomycin
    treatment on October 22, 2014.
    - 3 -
    "The law of Puerto Rico, where the alleged malpractice
    occurred, provides the standard of liability in this FTCA action."
    Torres-Lazarini v. United States, 
    523 F.3d 69
    , 72 (1st Cir. 2008)
    (citing 
    28 U.S.C. §§ 1346
    (b)(1), 2674).                    A plaintiff who seeks to
    "prove medical malpractice under Puerto Rico law" must establish
    three elements.          
    Id.
          First, a plaintiff who brings a medical
    malpractice    claim       of   negligence         under    Puerto     Rico   law   must
    "establish"    the       "'duty    owed     (i.e.,    the     minimum    standard    of
    professional       knowledge       and     skill     required     in    the   relevant
    circumstances).'"          
    Id.
     (quoting Cortés–Irizarry v. Corporación
    Insular De Seguros, 
    111 F.3d 184
    , 189 (1st Cir. 1997)).                        "Puerto
    Rico holds health care professionals to a national standard of
    care."     Cortés-Irizarry, 
    111 F.3d at 190
    .                   Second, a plaintiff
    bringing    such     a    claim     must    establish       "an   act    or   omission
    transgressing that duty."                
    Id. at 189
    .         With respect to this
    requirement, "Puerto Rico law presumes that physicians exercise
    reasonable care."         
    Id. at 190
    .        Third, a plaintiff bringing such
    a claim must establish "a sufficient causal nexus between the
    breach and the claimed harm."              
    Id. at 189
    .
    Under Puerto Rico law, a plaintiff "ordinarily must
    adduce expert testimony to limn the minimum acceptable standard
    and confirm the defendant doctor's failure to meet it."                             
    Id. at 190
    .    The admissibility of expert testimony in federal court is
    governed by Federal Rule of Evidence 702, which provides:
    - 4 -
    A witness who is qualified as an expert by
    knowledge, skill, experience, training, or
    education may testify in the form of an
    opinion or otherwise if:
    (a) the expert's scientific, technical, or
    other specialized knowledge will help the
    trier of fact to understand the evidence or to
    determine a fact in issue;
    (b) the testimony is based on sufficient facts
    or data;
    (c) the testimony is the product of reliable
    principles and methods; and
    (d) the expert has reliably applied the
    principles and methods to the facts of the
    case.
    The Supreme Court of the United States explained in
    Daubert v. Merrell Dow Pharmaceuticals, Inc. that Federal Rule of
    Evidence   702    assigns   a   "gatekeeping   role   for   the   judge"   to
    determine that "an expert's testimony both rests on a reliable
    foundation and is relevant to the task at hand."             
    509 U.S. 579
    ,
    597 (1993).      "[N]othing in either Daubert or the Federal Rules of
    Evidence requires a district court to admit opinion evidence that
    is connected to existing data only by the ipse dixit of the expert.
    A court may conclude that there is simply too great an analytical
    gap between the data and the opinion proffered." Gen. Elec. Co. v.
    Joiner, 
    522 U.S. 136
    , 146 (1997).
    "There is an important difference," however, "between
    what is unreliable support and what a trier of fact may conclude
    is insufficient support for an expert's conclusion."              Milward v.
    Acuity Specialty Prods. Grp., Inc. (Milward I), 
    639 F.3d 11
    , 22
    (1st Cir. 2011).      That "the factual underpinning of an expert's
    - 5 -
    opinion is weak" is "a matter affecting the weight and credibility
    of the testimony -- a question to be resolved by the jury."          
    Id.
    (quoting United States v. Vargas, 
    471 F.3d 255
    , 264 (1st Cir.
    2006)).   In addition, "Rule 702 has been interpreted liberally in
    favor of the admission of expert testimony." Levin v. Dalva Bros.,
    Inc., 
    459 F.3d 68
    , 78 (1st Cir. 2006).
    "The party seeking to introduce the evidence has the
    burden of establishing both its reliability and its relevance,"
    and we review the District Court's decision to exclude the evidence
    "for   abuse   of   discretion."       Milward   v.   Rust-Oleum   Corp.
    (Milward II), 
    820 F.3d 469
    , 472-73 (1st Cir. 2016) (citing Daubert,
    
    509 U.S. at
    593 n.10); see also Joiner, 
    522 U.S. at 146
    .            The
    District Court's "[p]redicate factual findings are reviewed for
    clear error, while pure questions of law engender de novo review."
    Milward II, 820 F.3d at 472.
    Federal Rule of Civil Procedure 26 requires that a party
    seeking to admit expert witness testimony in federal court submit
    "a written report" that "must contain" certain information, such
    as "a complete statement of all opinions the witness will express."
    Fed. R. Civ. P. 26(a)(2)(B)(i).        The burden of showing that any
    noncompliance with Rule 26's requirements is justified or harmless
    is on the party seeking to admit the testimony.          See Wilson v.
    Bradlees of New England, Inc., 
    250 F.3d 10
    , 21 (1st Cir. 2001).
    - 6 -
    During   discovery,   the   plaintiffs    identified   to     the
    United States a proposed expert witness, Dr. José Ortiz Feliciano.
    The United States deposed him on March 20, 2018.       Then, on July 30,
    2018, the plaintiffs formally and timely notified the District
    Court of their intent to introduce Dr. Ortiz Feliciano as their
    expert witness in a proposed pre-trial conference report that the
    parties jointly filed with the District Court.            The plaintiffs
    stated in that joint report that Dr. Ortiz Feliciano would "testify
    about his qualifications as an expert and the deviations of care
    by VA Hospital in regards to the treatment provid[ed] to Noel
    Martinez Marrero, his cause of death and the medical standards
    applicable in this case."
    In the same report, the United States notified the
    District Court of its intent to introduce an expert witness of its
    own, Dr. Anibelle Altieri Ramirez.           The United States stated in
    the joint report that Dr. Altieri Ramirez would "testify that the
    VA   Hospital   medical   management   and    interventions   provided    to
    Mr. Martínez did not deviate from the accepted medical practices."
    Prior to the close of discovery, the plaintiffs provided the United
    States an expert report produced by Dr. Ortiz Feliciano pursuant
    to Rule 26(a)(2)(B).      The United States provided an expert report
    from Dr. Altieri Ramirez to the plaintiffs.
    - 7 -
    C.
    On February 11, 2019, the United States moved pursuant
    to Federal Rule of Evidence 702 for the District Court to exclude
    Dr. Ortiz Feliciano's expert testimony.             The motion pointed to
    deficiencies in the expert report from him that the plaintiffs had
    provided to the United States.
    The    United     States'     motion   to    exclude   Dr.   Ortiz
    Feliciano's     testimony    did      not   rely,     however,   solely   on
    deficiencies with his proposed expert testimony that were manifest
    in his expert report.        The motion also attached a copy of his
    curriculum vitae, various publications that he had provided to the
    United States, and excerpts from Dr. Ortiz Feliciano's deposition
    testimony, and pointed to their contents as well in arguing that
    his expert testimony had to be excluded under Federal Rule of
    Evidence 702.
    The District Court issued an opinion and order that
    granted the United States' motion to exclude Dr. Ortiz Feliciano's
    testimony.      See Martinez v. United States, No. 16-2340, 
    2019 WL 3022497
    , at *5 (D.P.R. July 10, 2019).             The District Court in
    doing so described not only the requirements of Federal Rule of
    Evidence 702, 
    id. at *1-2
    , but also the requirements of Federal
    Rule of Civil Procedure 26, 
    id. at *2-3
    . The District Court quoted
    the latter rule's requirement that that expert reports contain "'a
    complete statement of all opinions the witness will express'" and
    - 8 -
    "'a statement of the compensation to be paid'" for the proposed
    expert's testimony.          
    Id.
     (quoting Fed. R. Civ. P. 26(a)(2)(B)(i),
    (a)(2)(B)(vi))         The    District     Court   explained    that    the    rule
    "dictates that parties have a duty to supplement an expert's report
    by the time pretrial disclosure[s] are due."               See 
    id. at *3
    ; Fed.
    R. Civ. P. 26(e)(2).          In addition, the District Court noted that
    the "excerpt of Dr. Ortiz-Feliciano's deposition that was also
    included as an exhibit d[id] not discuss if the report is final."
    
    Id. at *4
    .
    The      District     Court    then   concluded    that    the   expert
    opinions set forth in the expert report -- which it determined to
    be the final expert report -- were not sufficiently "relevant" and
    "reliable"     to     meet     the   requirements     of     Federal    Rule    of
    Evidence 702.        
    Id. at *4-5
    .       The District Court also stated that
    the   expert   report     was    "not    admissible   because    it    d[id]   not
    completely contain any of the information required by" Federal
    Rule of Civil Procedure 26(a)(2)(B) and "was not supplemented
    accordingly    following        Dr. Ortiz-Feliciano's      deposition."         
    Id. at *5
    .   In the conclusion of the opinion, the District Court then
    ruled that Dr. Ortiz Feliciano's "report and proffered testimony
    do not fulfill the requirements" of Federal Rule of Evidence 702,
    Federal Rule of Civil Procedure 26(a)(2)(B), "and the applicable
    case law."     
    Id.
    - 9 -
    The District Court thereafter set a trial date, and the
    plaintiffs filed a motion to reconsider the District Court's ruling
    excluding Dr. Ortiz Feliciano's expert testimony.                     The motion to
    reconsider addressed both Federal Rule of Evidence 702 and Federal
    Rule of Civil Procedure 26. The plaintiffs attached to that motion
    to   reconsider      certain   records     from       the    Hospital,      Dr. Ortiz
    Feliciano's expert report, various publications in support of that
    report, and a transcript of his complete deposition.
    That same day, the District Court issued an opinion that
    denied the plaintiffs' motion to reconsider.                      See Martinez v.
    United     States,    No. 16-2430,       
    2019 WL 3402950
    , at *2            (D.P.R.
    July 26, 2019).        The District Court explained that despite the
    plaintiffs'    contention      that     they    had    provided       the   necessary
    "medical    literature,"       curriculum       vitae,       expert    compensation
    disclosure, and previous case history, "the report itself does not
    contain this information."        
    Id. at *1
    .
    The   District      Court     added       that    Rule 26       does    not
    "generally" permit parties to "'cure deficient expert reports by
    supplementing them with later deposition testimony'"                    
    Id.
     (quoting
    Rodríguez v. Torres, No. 11-1602, 
    2015 WL 1138256
    , at *6 (D.P.R.
    Mar. 13, 2015), aff'd sub nom. Santos-Rodríguez v. Seastar Sols.,
    
    858 F.3d 695
     (1st Cir. 2017)).
    The   District     Court     also     explained      that       Dr.    Ortiz
    Feliciano's "report fails to identify the national standard of
    - 10 -
    care," and that the "report does not mention any data or medical
    literature, beyond the hospital records, used to sustain his
    contention that there was a deviation from the standard of care.
    To comply with [Federal Rule of Civil Procedure] 26(a)(2)(B), the
    report necessarily needed to include this information, not simply
    provide copies of medical literature."      
    Id. at *2
    .   Finally, the
    District Court stated that "the main flaw" of Dr. Ortiz Feliciano's
    report "is not failing to mention the medical literature that he
    used.   The fundamental issue is that it does not relate the content
    of the publications utilized to his belief that the national
    standard of care was not met."      
    Id.
        Thus, the District Court
    concluded, "the report fail[ed] to comply with [Federal Rule of
    Evidence] 702."   
    Id.
    Later that same day, after the District Court had denied
    the plaintiffs' motion to reconsider, the United States filed a
    motion to dismiss the plaintiffs' complaint for failure to state
    a claim upon which relief could be granted, pursuant to Federal
    Rule of Civil Procedure 12(b)(6).       The District Court initially
    issued an electronic order that deferred consideration of the
    United States' motion to dismiss until trial, noting in an order
    that, "Plaintiffs should be afforded the opportunity for further
    factual development and legal analysis." But, less than two months
    later, the District Court issued an order denying the motion to
    dismiss in which it noted, "[i]n light of Plaintiffs' own admission
    - 11 -
    that 'the exclusion of [their] expert, technically, constitutes
    the dismissal of the case,' Defendants must file a motion for
    summary judgment, not a motion to dismiss." (second alteration in
    original).
    The District Court granted the United States twenty-one
    days to file such a motion and vacated the scheduled trial "[i]n
    the interest of conserving the parties' and judicial resources."
    The deadline to file a motion for summary judgment set by the
    Federal Rules of Civil Procedure had elapsed more than one year
    earlier.   See Fed. R. Civ. P. 56(b).
    The United States filed the motion for summary judgment.
    The District Court issued an opinion and order that granted summary
    judgment against the plaintiffs and in favor of the United States
    and dismissed the case with prejudice, "[d]ue to the absence of
    expert testimony."   Martinez v. United States, No. 16-2430, 
    2020 WL 5039242
    , at *6 (D.P.R. Aug. 26, 2020).     The plaintiffs filed
    this appeal from that judgment.
    II.
    For reasons that we will explain, we conclude that the
    District Court erred in excluding the expert testimony of Dr. Ortiz
    Feliciano pursuant to Federal Rule of Evidence 702 and that the
    District Court erred in excluding that testimony pursuant to
    Federal Rule of Civil Procedure 26.     As a result, we must vacate
    the grant of summary judgment against the plaintiffs, as the
    - 12 -
    District Court based          that ruling    on the     plaintiffs'      lack of
    supporting       expert    testimony    in   consequence       of     Dr.     Ortiz
    Feliciano's testimony having been struck.2
    We    review    the   District    Court's      ruling   to      exclude
    Dr. Ortiz       Feliciano's    testimony     based    on    Federal      Rule   of
    Evidence 702 and Federal Rule of Civil Procedure 26 for an abuse
    of discretion.      See Lawes v. CSA Architects & Eng'rs LLP, 
    963 F.3d 72
    , 90 (1st Cir. 2020).           Pursuant to that standard, "embedded
    findings of fact are reviewed for clear error, questions of law
    are reviewed de novo, and judgment calls are subjected to classic
    abuse-of-discretion review."           
    Id.
     (quoting Bricklayers & Trowel
    Trades Int'l Pension Fund v. Credit Suisse Sec. (USA) LLC, 
    752 F.3d 82
    , 91 (1st Cir. 2014)).           We "will reverse a trial court's
    decision if we determine the judge committed 'a material error of
    law' or 'a meaningful error in judgment.'"                 
    Id.
     (quoting United
    States v. Jordan, 
    813 F.3d 442
    , 445 (1st Cir. 2016)). This "occurs
    when a material factor deserving significant weight is ignored,
    when an improper factor is relied upon, or when all proper and no
    The plaintiffs' appeal from the District Court's entry
    2
    of summary judgment against them permits us to consider separately
    their challenge to the District Court's predicate order striking
    Dr. Ortiz Feliciano's expert testimony. See Martínez-Serrano v.
    Quality Health Servs. of P.R., Inc., 
    568 F.3d 278
    , 283 (1st Cir.
    2009) (explaining that when an appellant "designate[s] the final
    judgment in a case as the appeal's object . . . such a notice of
    appeal is deemed to encompass not only the final judgment but also
    all interlocutory orders that merge into it").
    - 13 -
    improper factors are assessed, but the court makes a serious
    mistake in weighing them."       
    Id.
     (quoting Fashion House, Inc. v.
    K mart Corp., 
    892 F.2d 1076
    , 1081 (1st Cir. 1989)).
    A.
    The District Court concluded that Dr. Ortiz Feliciano's
    testimony must be struck under Federal Rule of Evidence 702 because
    the plaintiffs had failed to show that it was "relevant" or
    "reliable."   Martinez, 
    2019 WL 3022497
    , at *4.           The District Court
    explained that "to be considered relevant" expert testimony "must
    help the trier of fact to understand the evidence or determine a
    fact in issue."    Id.; see Fed. R. Evid. 702(a) (permitting expert
    testimony   when   "the   expert's    scientific,    technical,    or   other
    specialized knowledge will help the trier of fact to understand
    the evidence or to determine a fact in issue").           The District Court
    explained that to be considered "reliable" expert testimony must
    be "based on sufficient data and/or facts and [be] the product of
    trustworthy    principles."    Id.;     see   Fed.   R.    Evid. 702(b)-(d)
    (permitting expert testimony when it is "based on sufficient facts
    or data," the "product of reliable principles and methods," and
    the expert has "reliably applied the principles and methods to the
    facts of the case").      We address each part of the District Court's
    Rule 702 ruling separately.
    - 14 -
    1.
    The District Court ruled that the proffered testimony of
    Dr. Ortiz Feliciano would not "help the trier of fact," Fed. R.
    Evid. 702(a) -- and so, in the District Court's vernacular, was
    not "relevant" -- because the plaintiffs failed to show that the
    testimony would "provide any helpful information that could not be
    obtained from revi[ewing] Mr. Martínez-Marrero's hospital record
    and autopsy report."      Martinez, 
    2019 WL 3022497
    , at *5 (emphasis
    removed); see Fed. R. Evid. 702(a) ("A witness who is qualified as
    an expert by knowledge, skill, experience, training, or education
    may testify in the form of an opinion or otherwise if . . . the
    expert's scientific, technical, or other specialized knowledge
    will help the trier of fact to understand the evidence or to
    determine a fact in issue[.]").         The District Court concluded in
    support of that ruling that Dr. Ortiz Feliciano's expert report
    did not "explain, or even define, the medical conditions and
    medications   described    in   said    records   in   a   way   that   would
    facilitate understanding them."        Martinez, 
    2019 WL 3022497
    , at *5.
    The District Court further concluded in support of that ruling
    that the report "glaringly omit[ted] mentioning the applicable
    standard of care that Defendant[s] should have met prior to
    concluding that a departure occurred."        
    Id.
    We start with the District Court's latter conclusion,
    which, as we will explain, is not supported by the record.                 In
    - 15 -
    proffering       his   expert   opinion,   the    record    shows,    Dr. Ortiz
    Feliciano identified two separate national standards of care that
    Martínez-Marrero's treatment implicated.                 Moreover, the record
    shows that Dr. Ortiz Feliciano identified a deviation from each of
    those standards of care.           We consider what the record shows as to
    each standard of care (and the asserted deviation from it) in turn.
    The first standard of care that Dr. Ortiz Feliciano
    identified is, as the plaintiffs contend, set forth in his expert
    report. He described that standard of care as requiring a hospital
    to monitor and correct blood platelet levels as they decrease.
    The expert report stated in that regard that "[t]he
    decline in [Martínez-Marrero's] platelet levels was not monitored
    or corrected during the last 3 days prior to death" and that it
    was "accepted medical practice" to undertake such monitoring.                
    Id. at *4
    .   Indeed, the report also noted that Martínez-Marrero was
    receiving       an   antibiotic,    Vancomycin,    for     his   urinary   tract
    infection, and that "[s]evere bleeding can occur in Vancomycin
    immune-induced [t]hrombocytopenia," and the report then went on to
    note that, for this reason, too, the "patient must be monitored
    for decrease in platelet levels."3
    In the excerpt from his deposition testimony that the
    3
    United States attached to its motion to exclude Dr. Ortiz
    Feliciano's   testimony,    Dr. Ortiz   Feliciano   agreed   that
    "thrombocytopenia is a decrease of platelets[.]"
    - 16 -
    We   also   agree   with   the   plaintiffs   that   Dr.   Ortiz
    Feliciano identified in his expert report a departure from this
    standard of care.      The report explained that Martínez-Marrero's
    thrombocytopenia "had reached critical levels on 10/26/2014" -- a
    date after which the report then went on to state "there was no
    monitoring."     The report further stated that the "progressive
    decrease   in   the    platelet   count     during   [Martínez-Marrero's]
    hospitalization . . . was not evaluated or managed."         To that same
    point, the report included a chart that listed the "progressive
    decrease" in Martínez-Marrero's platelet levels that Dr. Ortiz
    Feliciano identified, which showed that Martínez-Marrero's blood
    platelet counts steadily decreased during his stay at the Hospital,
    from 80 on October 20th to 54 on October 26th.           The report then
    went on to state, "[t]his [failure to monitor] is a departure from
    accepted medical practice" (emphasis added).
    The second standard of care that Dr. Ortiz Feliciano
    identified is, as the plaintiffs assert, the requirement to monitor
    levels of the antibiotic Vancomycin in a patient's body.              True,
    Dr. Ortiz Feliciano's report did not clearly describe this standard
    of care in the way that his report identified the standard of care
    regarding the requirement to monitor blood platelet levels.            But,
    Dr. Ortiz Feliciano did identify this standard of care in a portion
    of his deposition testimony that the United States itself attached
    to its motion to exclude his testimony under Federal Rule of
    - 17 -
    Evidence 702 and that the District Court acknowledged that it
    reviewed in making its ruling under that rule.
    Specifically, Dr. Ortiz Feliciano's report explained
    that Martínez-Marrero had been placed on "antibiotic therapy for
    urine infection" with "Vancomycin," which "can produce severe
    bleeding d[ue] to thrombocytopenia."                  Then, in the excerpt from
    Dr. Ortiz Feliciano's deposition testimony mentioned above, the
    doctor referred to the monitoring of Vancomycin levels as being
    "the accepted clinical practice" (emphasis added).
    We    also   agree       with   the    plaintiffs       that    Dr.   Ortiz
    Feliciano set forth his opinion that there had been a deviation
    from this Vancomycin-monitoring-based standard of care.                       Dr. Ortiz
    Feliciano   did    so    by    stating      in    that    same    excerpt     from    his
    deposition mentioned above that "Vancomycin has to be given at a
    therapeutic      level";      that    on    October      24th    "the   lab    from   VA
    identifie[d] this level was too high"; that the lab "recommended
    that the levels be repeated for monitoring"; that "[y]ou have to
    repeat the level to know what is going on.                      Is it still high, or
    is it low"; that "[t]hey did not monitor it on the 24th.                      They did
    not even change the dosage"; and that no such monitoring or changes
    in dosage occurred "despite a recommendation from the lab and the
    accepted clinical practice that you have to monitor those levels"
    (emphasis added).
    - 18 -
    It   is   true   that   "Puerto   Rico   holds   health   care
    professionals to a national standard of care." Cortés-Irizarry,
    
    111 F.3d at 190
    .     But, to the extent that the District Court based
    its Rule 702 "relevance" ruling on Dr. Ortiz Feliciano's failure
    to have identified either of the standards of care just described
    as being a "national" standard of care, see Martinez, 
    2019 WL 3022497
    , at *5; Martinez, 
    2019 WL 3402950
    , at *1-2, the District
    Court erred.
    At the summary judgment stage, "affiants and witnesses
    need not be precise to the point of pedantry" with respect to this
    requirement.    Cortés-Irizarry, 
    111 F.3d at 190
    .     Thus, an expert's
    "references to the 'average gynecologist' and to the 'prevailing
    medical standard'" have been found, when "read in context," to
    constitute a "satisfactory statement" of "the national standard of
    care."    
    Id.
    Given that precedent, Dr. Ortiz Feliciano sufficiently
    made clear that he stated each of the standards of care from which
    he identified a deviation as a "national" one.        His expert report
    stated that the failure to monitor platelet levels -- the only
    opinion of Dr. Ortiz Feliciano's that the District Court addressed
    -- was "a departure from accepted medical practice" (emphasis
    added).   Furthermore, Dr. Ortiz Feliciano clarified in the excerpt
    from his deposition that the United States attached to its motion
    to exclude that his opinion concerning what data was relevant to
    - 19 -
    the monitoring of the platelets applied not just to his analysis
    but "[t]o any analysis" (emphasis added).               And, although the
    District   Court    did   not   address   Dr. Ortiz     Feliciano's    second
    opinion concerning the failure to monitor levels of Vancomycin, we
    note that this opinion, too, identified a national standard of
    care, as Dr. Ortiz Feliciano referred in the same excerpt from his
    deposition that the United States attached to its motion to exclude
    to the need to monitor and adjust Vancomycin levels as "a clinical
    decision" governed by the "accepted clinical practice" (emphasis
    added).
    There     remains    to     address    the    District     Court's
    independent decision to exclude Dr. Ortiz Feliciano's testimony
    for lack of "relevance" because his expert report did "not explain,
    or even define, the medical conditions and medications described
    in said records in a way that would facilitate understanding them."
    Martinez, 
    2019 WL 3022497
    , at *5.             But, here, too, we conclude
    that the record does not support the District Court's conclusion.
    The expert report highlighted the components of the
    medical record relevant to Dr. Ortiz Feliciano's opinions in a
    manner that assists "understand[ing]" those records.                  Fed. R.
    Evid. 702(a).      The report noted, for example, the dates on which
    "there was no monitoring" of Martínez-Marrero's platelet levels
    and included a chart that listed his platelet level on each day.
    The report also explained what Dr. Ortiz Feliciano believed the
    - 20 -
    Hospital should have done ("monitor[] for decrease in platelet
    levels" and "obtain[]" "further levels" of Vancomycin), and why
    (to avoid "[s]evere bleeding").
    Moreover, Federal Rule of Evidence 702(a) refers broadly
    to whether an expert's "specialized knowledge will help the trier
    of facts to understand the evidence or to determine a fact in
    issue."    Fed. R. Evid. 702(a).       See, e.g., Fed. R. Evid. 702(b),
    (c) (referring to "the testimony"); Lawes, 963 F.3d at 100–01
    (considering deposition testimony in evaluating preclusion of
    expert pursuant to Federal Rule of Evidence 702); Milward II, 820
    F.3d at 474 (considering testimony elicited from expert at Daubert
    hearing); see also Cortés-Irizarry, 
    111 F.3d at 188
     ("Voir dire is
    an   extremely     helpful    device   in    evaluating     proffered    expert
    testimony . . . .").         The showing required under Federal Rule of
    Evidence 702 is thus not keyed solely to what is set forth in the
    expert    report    provided     pursuant    to   Federal    Rule   of   Civil
    Procedure 26.
    That is significant here.           As we have explained, when
    Dr. Ortiz Feliciano's report is considered along with the excerpt
    from his deposition testimony that the United States attached to
    its motion to exclude, it is evident that Dr. Ortiz Feliciano
    explained what the Hospital's medical records showed in a manner
    sufficient to make his testimony relevant to understanding whether
    Martínez-Marrero received negligent treatment.
    - 21 -
    The United States does advance one additional ground for
    affirming the ruling excluding Dr. Ortiz Feliciano's testimony
    pursuant to Federal Rule of Evidence 702 that appears to relate to
    what the District Court deemed to be the "relevance" issue.            The
    United States contends that none of Dr. Ortiz Feliciano's opinions
    address whether there is "a causal relation between the act or the
    omission   of   the   physician   and   the   injury   by   the   patient."
    Santiago v. Hosp. Cayetano Coll y Toste, 
    260 F. Supp. 2d 373
    , 381
    (D.P.R. 2003) (quoting Sierra Perez v. United States, 
    779 F. Supp. 637
    , 643 (D.P.R. 1991)) (emphasis added).        The United States then
    argues that "[w]ithout an opinion as to how Martínez[-Marrero]'s
    treatment would have been different if these levels [of platelets
    and Vancomycin] were monitored, there is no reason to believe that
    the lack of monitoring played any role in Martínez[-Marrero]'s
    death."
    The District Court did not itself purport to rely on
    this ground, however, in either its order excluding Dr. Ortiz
    Feliciano's expert testimony or its subsequent order denying the
    plaintiffs' motion to reconsider.       See Martinez, 
    2019 WL 3022497
    ,
    at *4-5; Martinez, 
    2019 WL 3402950
    , at *1-2.           The United States
    thus appears to be contending that, even though the District Court
    did not identify any failure to address causation on Dr. Ortiz
    Feliciano's part, we must affirm the District Court's ruling to
    - 22 -
    exclude his testimony pursuant to Federal Rule of Evidence 702 on
    that ground.   We decline to do so.
    The United States is right that Dr. Ortiz Feliciano's
    report did not itself address this causation issue.    But, as we
    have explained, for purposes of excluding expert testimony under
    Federal Rule of Evidence    702, the report    is not necessarily
    dispositive.   Indeed, the United States itself recognizes that is
    so.   In pressing this ground for affirming the District Court's
    ruling under Federal Rule of Evidence 702, the United States goes
    on to argue that Dr. Ortiz Feliciano's deposition testimony failed
    to make up for the report's deficiency.
    Moreover, in then addressing the deposition testimony,
    the United States identifies only one deficiency with respect to
    how Dr. Ortiz Feliciano addressed causation.    The United States
    contends that even though Dr. Ortiz Feliciano opined in that
    testimony that with proper monitoring of blood platelet levels the
    Hospital could have intervened to provide Martínez-Marrero "a
    transfusion of platelets or steroids," Dr. Ortiz Feliciano still
    failed to address causation because he "agreed" with the United
    States' expert that such a "transfusion would have provided only
    a temporary benefit" to Martínez-Marrero.
    But, the United States does not identify where in either
    the report or the deposition (including in the portions of the
    deposition to which it cites) Dr. Ortiz Feliciano conceded that a
    - 23 -
    transfusion would provide only a temporary benefit, such that a
    transfusion would not have extended Martínez-Marrero's life.                 And,
    our own review reveals that, to the contrary, Dr. Ortiz Feliciano
    explained in the excerpt from his deposition that was attached to
    the   motion     to   exclude   his   testimony    that   even    though     blood
    transfusions or steroids could not have cured Martínez-Marrero "of
    the chronic liver disease," they could have "extend[ed] his life."
    Dr. Ortiz       Feliciano   also   explained      in   that   portion   of    his
    deposition testimony that Martínez-Marrero died from bleeding not
    "[b]ecause he had chronic liver disease" but "because he had a low
    platelet count," even though the low platelet count may in turn
    have been caused by his chronic liver disease.                   And, Dr. Ortiz
    Feliciano explained in that portion of his deposition testimony
    not only that "not all patients with chronic liver disease die
    from bleeding," but also that Martínez-Marrero "didn't die the
    other two times" because his platelet levels "didn't go down
    critically" as Dr. Ortiz Feliciano concluded they did here.                  Thus,
    the sole causation-based ground that the United States identifies
    for excluding Dr. Ortiz Feliciano's testimony pursuant to Federal
    Rule 702 does not hold up.4
    The United States does not assert that Dr. Ortiz
    4
    Feliciano's deposition testimony failed to address causation with
    respect to the deviation in the claimed national standard of care
    that he identified with respect to the monitoring of Vancomycin
    - 24 -
    2.
    The   District    Court    separately    ruled      that    Dr. Ortiz
    Feliciano's testimony was not admissible pursuant to Federal Rule
    of Evidence 702 because the plaintiffs did not make the requisite
    showing that the opinions that he proffered were, as the District
    Court put it, "reliable" or "based on sufficient data and/or facts"
    and "the product of trustworthy principles."             Martinez, 
    2019 WL 3022497
    , at *4; see Fed. R. Evid. 702(b)-(d) (explaining that
    expert testimony must be "based on sufficient facts or data," must
    be "the product of reliable principles and methods," and requires
    that the expert "has reliably applied the principles and methods
    to the facts of the case").            The District Court based this
    conclusion   solely   on   the   shortcomings     that   it    identified     in
    Dr. Ortiz Feliciano's report, without addressing the content of
    his   deposition   testimony,      including    the   excerpt        from   that
    testimony that the United States itself had attached to its motion
    to exclude his testimony.        See Martinez, 
    2019 WL 3022497
    , at *5.
    levels.   That is understandable.   He explained in that excerpt
    from his deposition testimony that it was his opinion that the
    Hospital could have "change[d] the amount of the dose" or "given
    it in a different frequency," and that Martínez-Marrero died not
    "[b]ecause he had chronic liver disease," but "because he had a
    low platelet count" -- to which "Vancomycin contributed." Because
    the District Court does not appear to have addressed Dr. Ortiz
    Feliciano's opinion concerning monitoring of Vancomycin levels, we
    need not go further.
    - 25 -
    The District Court determined in so ruling that the
    report failed "to show that the testimony is supported by an
    accepted    methodology           based     on     substantial     scientific        or
    specialized information" and that it "lack[ed] key facts that are
    fundamental for its conclusion."                 
    Id.
       The only specific failing
    that the District Court identified in support of that conclusion,
    however, was that Dr. Ortiz Feliciano "explicitly state[d]" in the
    report "that he can 'only postulate' that Mr. Martinez-Marrero's
    platelet count continued to decrease during the three days prior
    to his death."        
    Id.
            Then, seemingly on that basis alone, the
    District Court determined that it "must conclude that there is
    'simply too great an analytical gap between the data and the
    opinion proffered'"          
    Id.
     (quoting Gen. Elec. Co. v. Joiner, 
    522 U.S. 136
    , 146 (1997)).           We cannot agree.
    The   plaintiffs         rightly       argued   in    their     brief    in
    opposition to the motion to exclude, just as they point out to us
    in their briefing on appeal, that Dr. Ortiz Feliciano relied for
    the   "postulate[d]"        decrease       in    platelet    levels       not   on   an
    unexplained or ungrounded analysis but on a review of the relevant
    medical    records.         In    particular,      the   record   shows     that     the
    "progressive decrease" that his expert report identified relied on
    the fact that the Hospital's own medical records showed that
    decrease. The record further shows that Dr. Ortiz Feliciano stated
    in his report that a continued decrease in those levels "would
    - 26 -
    lead to a bleeding coagulopathy      as evidenced by the autopsy
    findings" (emphasis added).    In other words, Dr. Ortiz Feliciano
    stated in his report both that the medical records showed a
    progressive decrease in platelets in the period leading up to the
    three days prior to Martínez-Marrero's death and that the autopsy
    records showed the kind of "bleeding coagulopathy" that a continued
    decrease in platelets would "lead to."
    In the excerpt from Dr. Ortiz Feliciano's deposition
    that the United States attached to its motion to exclude his
    testimony, moreover, the doctor stated that "[i]t says in the
    literature"   that   Martínez-Marrero's   bruising   about   which   the
    United States was questioning him was "a warning sign that you are
    bleeding into the soft tissue."    The doctor then went on to state
    that such bleeding was "a consequence of the platelet decrease"
    and "that is why you have to treat it." In addition, in conjunction
    with Dr. Ortiz Feliciano's reliance on the "progressive decrease"
    in platelets that he observed in that record, he made clear in the
    excerpt from the deposition attached to the United States' motion
    to exclude that his opinion also relied on his own clinical
    experience, including the fact that he had "been treating chronic
    liver disease all [his] life," that he had experience operating on
    at least thirty-four patients that "all had chronic liver disease,"
    - 27 -
    and that the "focus" of what he "studied and treated" included
    "[t]he treatment of bleeding."5
    In sum, the medical records, combined with Dr. Ortiz
    Feliciano's    own   clinical   experience,   provided   a   sufficiently
    reliable basis for his opinions, including the one that the
    District Court identified as having been merely "postulate[d]."
    We also agree with the plaintiffs that the criticisms that the
    United States made in its motion to exclude the expert testimony
    -- and that the United States repeats to us on appeal -- about the
    strength of the support that the sources on which Dr. Ortiz
    Feliciano relied provide for his opinions speak to the probative
    weight of the testimony, not to its admissibility.           See Daubert,
    
    509 U.S. at 596
        ("Vigorous cross-examination, presentation of
    contrary evidence, and careful instruction on the burden of proof
    are the traditional and appropriate means of attacking shaky but
    admissible evidence."); Crowe v. Marchand, 
    506 F.3d 13
    , 18 (1st
    Cir. 2007) ("Objections of this type, which question the factual
    underpinnings of an expert's investigation, often go to the weight
    of the proffered testimony, not to its admissibility."); Payton v.
    Abbott Labs, 
    780 F.2d 147
    , 156 (1st Cir. 1985) (explaining that
    5That same excerpt from Dr. Ortiz Feliciano's deposition
    testimony that the United States attached to its motion emphasized
    his experience; Dr. Ortiz Feliciano explained, for example, that
    Martínez-Marrero had "a bleeding problem.      Who works more with
    bleeding problems than a surgeon?"
    - 28 -
    "the fact that [a] defendant [i]s able to undercut some of the
    research basis for the doctors' opinions" affects "the weight and
    credibility," but not "the admissibility[,] of those opinions").
    Thus, we cannot sustain the District Court's ruling to exclude the
    testimony pursuant to Federal Rule of Evidence 702 insofar as that
    ruling is based on concerns about the reliability of the opinions
    expressed in that testimony. See Crowe, 
    506 F.3d at 16-17
     (finding
    that physician's reliance on medical records met the "sufficient
    facts or data" requirement for his conclusion that an alternative
    surgical timeline "would have worsened the plaintiff's condition,
    not ameliorated it"); see also Mueller v. Auker, 
    700 F.3d 1180
    ,
    1191   (9th       Cir.   2012)("Clinical   instinct   as   a   diagnostic   and
    treatment tool is not new.").6
    Dr. Ortiz Feliciano's opinion in his report that
    6
    Martínez-Marrero's platelet levels continued to decrease also
    finds support in the publications attached to the United States'
    motion to exclude Dr. Ortiz Feliciano's testimony and on which,
    Dr. Ortiz Feliciano testified in the excerpt from the deposition
    that was also attached to that motion, he had relied in forming
    his opinions.   Those publications explained that critically low
    platelet counts can lead to the kind of bleeding that Dr. Ortiz
    Feliciano identified in his deposition testimony that Martínez-
    Marrero experienced. One of those publications stated that for
    patients with "platelet counts between 40,000 and 100,000 per mm3,
    bleeding may occur after injury or operation," and another observed
    that a platelet count lower than 50,000 per mm3 constitutes "severe
    thrombocytopenia."    And, Dr. Ortiz Feliciano explained in the
    excerpt from the deposition that the United States attached to its
    motion to exclude his testimony that the Hospital's records showed
    that Martínez-Marrero "bled extensively into the soft tissue"
    after "he fell on the 19th," and he explained that this bleeding
    was "cause[d]" by "[l]ow platelets."
    - 29 -
    B.
    We next consider the District Court's apparent decision
    to exclude Dr. Ortiz Feliciano's expert testimony based on Federal
    Rule of Civil Procedure 26. We note that the United States appears
    to contend that the District Court did not rely on Rule 26 in
    excluding Dr. Ortiz Feliciano's testimony.                          But, the plaintiffs
    are of the opposite view.                Moreover, we note that the District
    Court did point out that the plaintiffs failed to supplement their
    expert   report       "following         Dr.     Ortiz-Feliciano's             deposition"
    pursuant to Rule 26(e)(2); that the District Court ruled that
    Dr. Ortiz Feliciano's report was "not admissible because it does
    not   completely      contain      any    of     the    information        required       by"
    Rule 26(a)(2)(B); and that the District Court, in the conclusion
    of that order, stated that Dr. Ortiz Feliciano's "report and
    proffered testimony do not fulfill the requirements of" that rule.
    Martinez,     
    2019 WL 3022497
    ,      at *5.        Thus,       we   proceed    on    the
    understanding        that    the    District           Court        excluded    Dr. Ortiz
    Feliciano's     testimony       not       only     based       on     Federal      Rule    of
    Evidence 702 but also based on a determination that the plaintiffs
    failed   to    meet    the     requirements            of   Federal       Rule of     Civil
    Procedure 26.
    The plaintiffs contend that the District Court abused
    its discretion in imposing the "harsh sanction" of excluding Dr.
    Ortiz Feliciano's expert testimony pursuant to Rule 26(a)(2)(B),
    - 30 -
    because that sanction "forced the dismissal of the case." In other
    words, they argue      that even if        the District Court correctly
    concluded that the plaintiffs failed to meet the requirements of
    Rule 26 by failing to supplement their expert report formally with
    the information that was missing from the report itself, the
    District Court still erred in excluding Dr. Ortiz Feliciano's
    testimony for that reason.         Thus, the question remains for us
    whether    the   District   Court's      decision     to   exclude   Dr.   Ortiz
    Feliciano's testimony for transgressing Rule 26 "was so wide of
    the mark as to constitute an abuse of discretion."                   Lawes, 963
    F.3d at 92 (quoting Macaulay v. Anas, 
    321 F.3d 45
    , 51 (1st Cir.
    2003)).     We conclude that it was.
    In Esposito v. Home Depot U.S.A., Inc., 
    590 F.3d 72
     (1st
    Cir. 2009), we explained that where "all parties acknowledged that
    the sanction" of a party for its failure to meet Rule 26(a)(2)(B)'s
    disclosure requirements "carried the force of a dismissal, the
    justification for it must be comparatively more robust," 
    id. at 79
    ;
    see also Lawes, 963 F.3d at 91 (similar). That requirement applies
    here.     See Rolon-Alvarado, 1 F.3d at 79 (describing "the general
    rule requiring expert testimony in medical malpractice cases"
    brought    under   Puerto   Rico   law    and   the    "narrowly     configured
    exception" to it).
    - 31 -
    As we explained in Esposito, we review the District
    Court's decision to impose that severe sanction "with reference to
    a host of factors" that include:
    (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.
    590 F.3d at 78; see also Lawes, 963 F.3d at 92 (similar).
    In assessing whether, given the facts described above,
    an abuse of discretion occurred here, our "focus" -- due to the
    severity of the sanction -- is "mainly upon" the fourth factor --
    the "surprise and prejudice" to the opposing party.     Lawes, 963
    F.3d at 92 (quoting Thibeault v. Square D Co., 
    960 F.2d 239
    , 246-
    47 (1st Cir. 1992)).   In fact, "we have never affirmed an expert's
    preclusion when we were not persuaded by the proffered evidence of
    surprise or prejudice in the record."   Id. at 96.
    In consequence, it is of concern to us that the United
    States made no argument to the District Court -- and that it has
    made none to us on appeal -- that the plaintiffs' failure to amend
    the report in light of the deposition, or to attach to it the other
    information required by Rule 26(a)(2)(B), surprised or prejudiced
    the United States.   In fact, the United States never moved for the
    - 32 -
    expert testimony at issue to be excluded pursuant to Rule 26.            It
    moved for the exclusion of that testimony solely pursuant to
    Federal Rule of Evidence 702, and, in doing so, cited in support
    of   that   argument   to   the    excerpt   from   Dr. Ortiz   Feliciano's
    deposition that was attached to that motion.7
    Thus, while it is true that the plaintiffs here did not
    in their brief in opposition to the United States' motion to
    exclude "quote[]" from or include an "attach[ment]" to Dr. Ortiz
    Feliciano's deposition, Lawes, 963 F.3d at 93, it is also true
    that the plaintiffs referred in that brief to the opinions "as
    stated by" their expert.          And while the District Court evaluated
    for admissibility purposes only the contents of the two-page report
    in its order, see Martinez, 
    2019 WL 3022497
    , at *4-5, "there is no
    support in the rules or our case law for disregarding deposition
    testimony in considering whether (and to what extent) sanctions
    are appropriate given the discovery violations at issue."            Lawes,
    963 F.3d at 94.   Thus, insofar as the District Court relied on the
    plaintiffs' failure to comply with Rule 26 to exclude Dr. Ortiz
    Feliciano's testimony, it is concerning that "the district court
    does not explain how, in view of the deposition excerpts available
    to it, [the United States] was surprised by" the testimony that
    We note further that at oral argument in this case,
    7
    the United States stated that it had not been prejudiced by the
    plaintiffs' failure to supplement or amend the report with this
    information.
    - 33 -
    Dr. Ortiz Feliciano provided in that deposition in support of the
    opinions he set forth in in his expert report.          Id. at 94.
    Similarly, the United States never argued that it was
    prejudiced by the plaintiffs' failure to attach to the expert
    report the medical literature on which Dr. Ortiz Feliciano relied
    for his expert opinions.      See Fed. R. Civ. P. 26(a)(2)(B)(i)-(iii)
    (requiring that the report contain "a complete statement of all
    opinions" and the "basis and reasons for them," "the facts or data
    considered by" the expert and "any exhibits that will be used to
    summarize or support" the expert's opinions).             Indeed, in the
    motion to exclude the expert testimony, the United States contended
    that "Dr. Ortiz [Feliciano] provided literature that does not
    support his own opinion," and attached copies of that literature
    to that motion.    And the other data on which Dr. Ortiz Feliciano
    relied, as we have explained, came from the Hospital's own medical
    records.    Nor did the United States represent in its motion to
    exclude    Dr. Ortiz   Feliciano's    testimony    that    it    had   been
    prejudiced by any failure to include in the report the remaining
    information   required   by     Rule 26(a)(2)(B)   --     "the   witness's
    qualifications," Fed. R. Civ. P. 26(a)(2)(B)(iv), the list of
    recent cases in which the witness testified as an expert, id.
    26(a)(2)(B)(v), and "a statement of the compensation to be paid,"
    id. 26(a)(2)(B)(vi). Nor, finally, has the United States developed
    any such argument in this appeal.
    - 34 -
    We acknowledge that the District Court, in its opinion
    granting    the    United   States'       motion      to    exclude    Dr. Ortiz
    Feliciano's    testimony,      cited     to   Santiago-Díaz v.        Laboratorio
    Clínico Y De Referencia Del Este to explain that Rule 26(a)(2)(B)
    "call[s] for the parties to make explicit and detailed expert
    disclosures."      
    456 F.3d 272
    , 276 (1st Cir. 2006).             See Martinez,
    
    2019 WL 3022497
    ,      at *3.      But,    in this case,        the plaintiffs'
    "pretrial   disclosures     and    relevant     excerpts      from    [Dr.   Ortiz
    Feliciano's] deposition[]" were sufficiently detailed to give the
    United States "more than sufficient notice" of the basis for and
    substance     of   Dr. Ortiz    Feliciano's      opinions       concerning     the
    Hospital's deviations from the standard of care.                Lawes, 963 F.3d
    at 93.   The plaintiff whose expert's testimony this Court affirmed
    the exclusion of in Santiago-Díaz, by contrast, had waited until
    more than six months after the applicable deadline to identify an
    expert witness whom she had given the defendants in that case no
    opportunity to depose.      
    456 F.3d at 274
    .       Moreover, that plaintiff
    had provided to the defendants only the expert's curriculum vitae
    and "a one-page statement" that "did not by any stretch of the
    most     fertile     imagination       meet     the        criteria    set     by"
    Rule 26(a)(2)(B).     
    Id.
    Thus, the exclusion of Dr. Ortiz Feliciano's expert
    testimony based on the plaintiffs' failure to comply with Rule 26
    is not proper here. See Lawes, 963 F.3d at 94-95 ("District courts
    - 35 -
    should 'consider all the circumstances surrounding [an] alleged
    [expert disclosure] violation' in considering what sanction (if
    any) is warranted in a given case. . . . The district court's
    disregard for deposition testimony in this case amounts to a
    meaningful error in judgment . . . ." (alterations in original)
    (quoting Thibeault, 
    960 F.2d at 246
    )).
    III.
    We reverse the order excluding the expert testimony,
    vacate the entry of summary judgment, and remand for further
    proceedings consistent with this opinion.   The parties shall bear
    their own costs.
    - 36 -