Martinez v. United States

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.
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"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:
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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).
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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.
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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
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"'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
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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
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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
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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").
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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.
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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
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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[.]"
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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
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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).
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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
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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
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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.
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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
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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
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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.
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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
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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."
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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).
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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.
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