United States Court of Appeals For the First Circuit
No. 21-1689
JAMILET GONZÁLEZ-ARROYO, in representation of her minor son, ALG,
Plaintiff-Appellant,
v.
DOCTORS' CENTER HOSPITAL BAYAMÓN, INC.; DR. BENITO HERNÁNDEZ- DIAZ; JANE DOE, CONJUGAL PARTNERSHIP HERNÁNDEZ-DOE,
Defendants-Appellees,
JOHN DOES 1,2, AND 3; A, B, AND C CORPORATIONS; UNKNOWN INSURANCE COMPANIES A THROUGH H,
Defendants.
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, Howard and Thompson, Circuit Judges.
David Efron, with whom Law Offices of David Efron, P.C. was on brief, for appellant. Roberto Ruiz Comas, with whom RC Legal & Litigation Services, PSC was on brief, for appellee Doctors' Center Hospital Bayamón, Inc. Giovanni Picorelli Ayala for appellee Dr. Benito Hernández- Diaz. November 22, 2022 THOMPSON, Circuit Judge. Alleging negligent conduct
during the birth of her son ALG, Jamilet González-Arroyo
("González") brought a medical malpractice suit on his behalf in
the District of Puerto Rico against Doctors' Center Hospital
Bayamón ("DCHB") and Dr. Benito Hernández-Diaz ("Hernández" and
all together, the "Hospital"). González claimed that the Hospital
failed to notice and treat ALG's oxygen-loss at birth, which caused
him serious cognitive injury -- he would later be diagnosed with
autism and cerebral palsy.
To connect the Hospital's alleged conduct to ALG's
injuries (what we call causation), González hired an expert to
review her medical files and submit a report with his opinions
(standard practice in these types of actions). Ultimately, this
dispute is over that report. Before the parties went to trial,
the district court, on the Hospital's motion, struck the expert's
report and testimony, reasoning that it was too speculative and
otherwise failed to conform to established rules for such reports.
Without it, the district court concluded González could not make
her case and granted the Hospital's summary judgment motion,
dismissing González's lawsuit with prejudice. Only then did
González try to supplement the report and fix its apparent
deficiencies, and with that she asked the district court to
reconsider its prior rulings. In the interim, González appealed
to us, so the district court decided it had lost jurisdiction over
- 3 - the case and denied the reconsideration motion. González says the
district court got it all wrong. We largely disagree and affirm
the district court's grant of the motion in limine and motion for
summary judgment. We also affirm the denial of the motion for
reconsideration, albeit for different reasons than the district
court, which we will get to.
BACKGROUND
We start with some relevant background of ALG's birth,
but with a caveat: the record before us contains no medical files
or exhibits, so we've done our best to weave together what happened
solely from the parties' filings below, two expert reports and one
expert deposition.
In October 2010, González, a couple months pregnant with
ALG, began to see Hernández for prenatal care, expecting to give
birth sometime in May 2011. González had been pregnant twice
before; one had ended in a miscarriage, and the other she delivered
by cesarean section (commonly called a C-section). Early in the
morning of April 26, 2011, González, who was then about thirty-
eight weeks along, arrived at DCHB experiencing contractions and
abdominal pain -- considered to be in early labor. Once admitted,
González received antibiotics, her regular epilepsy medicine and
pain medicine. At 10:45 AM, after ingesting the pain medication,
González experienced an isolated instance of elevated blood
pressure. Throughout the morning, ALG's heart rate was observed
- 4 - with a fetal heart rate monitor.1 At 11:45 AM, González was taken
to the operating room for a C-section, where she began spinal
anesthesia and by 12:05 PM the spinal was completed. During this
twenty-minute window, González experienced lowered blood pressure.
González's C-section began at 12:10 PM, ALG entered the world at
12:12 PM, and the whole procedure wrapped up at 12:25 PM.
According to González, at some point before ALG's birth, he
experienced a sudden loss of oxygen, resulting in brain injury.
After ALG's delivery, he seemed to be healthy as
reflected in normal APGAR scores of eight and nine (the test of a
newborn's physical health shortly after birth).2 But two days
after his birth, ALG was admitted to an intensive care unit for
suspected sepsis, jaundice, and other conditions, and spent a
little over a week there receiving treatment before heading home.
Then three years later, ALG was diagnosed with autism and cerebral
palsy. González asserts in her complaint that the Hospital caused
1 The parties refer to the monitor's output as "strips," so we do the same. They also dispute what time the monitoring stopped, which we address later. 2"APGAR is a quick test performed on a baby at 1 and 5 minutes after birth. The 1-minute score determines how well the baby tolerated the birthing process. The 5-minute score tells the health care provider how well the baby is doing outside the mother's womb." Apgar score, National Library of Medicine (last visited Nov. 18, 2022), http://medlineplus.gov/ency/article/003402.htm. The test examines the baby's breathing effort, heart rate, muscle tone, reflexes, and skin color. Id.
- 5 - these cognitive and developmental disabilities by failing to
timely perform her C-section, by failing to appropriately monitor
ALG's heart rate, and/or by failing to properly resuscitate ALG.
In response to these events, González, in January 2017,
filed a complaint lodging a single count of negligence against the
Hospital, with estimated damages at over $10 million. After a
lull in activity the parties and the court eventually worked out
a discovery schedule, all of which was to be complete by the end
of April 2018. As pertinent here, each side would exchange expert
reports, and both González and her expert, Dr. Barry Schifrin,
would sit for depositions.
In February 2018, the Hospital deposed Dr. Schifrin,
where counsel throughout challenged the conclusions in his report.
Notably, Dr. Schifrin had written his report in December 2016,
before González had even filed her complaint and accordingly, it
was prepared without the benefit of any formal discovery. His
report refers to prenatal, labor and delivery, and neonatal records
from DCHB, as well as ALG's follow-up medical chart (not from
DCHB), but notes that he did not have (and thus did not review)
the fetal monitoring strips, therefore writing that "the facts of
this case are significantly compromised." In the report, Dr.
Schifrin wrote that he "believe[s] that [ALG's oxygen-loss]
develops as a result of the frequent contractions, placental
[abruption] . . . and the [drop in blood pressure] associated with
- 6 - the spinal anesthesia." At the deposition, however, Dr. Schifrin
explained that the basis for his report's statement that ALG
experienced oxygen-loss at birth came from "[s]omebody put[ting]
[it] in this baby's subsequent medical record," not from DCHB's
birth records. Hospital counsel then presented Dr. Schifrin with
at least some of the fetal monitoring strips, those generated up
until about 10:40 AM or 90 minutes before González's C-section.3
After reviewing the strips, Dr. Schifrin testified that he could
not point to any evidence of placental abruption4 ("I don't know.
It's just a potential explanation."), and that the strips he
reviewed showed "there are no frequent contractions." Dr. Schifrin
further testified, again after reviewing the strips, "I am happy
to tell you the baby is not injured up to 10:40," so there were
"details" of his report he was "going to change." "Assuming [the
strips] were [consistent] to the time of the spinal," Dr. Schifrin
3 We say "some" because counsel showed Dr. Schifrin strips that appear to end around 10:40 AM, while the Hospital's expert, Dr. Francisco Gaudier, wrote that he reviewed strips ending at 11:27 AM. The record contains no explanation of this time difference, but González's counsel asserts that the remaining strips were withheld and/or spoliated. We'll deal with that contention in a bit. 4 "Placental abruption occurs when the placenta partly or completely separates from the inner wall of the uterus before delivery. This can decrease or block the baby's supply of oxygen and nutrients and cause heavy bleeding in the mother." Placental abruption, Mayo Clinic (last visited Nov. 18, 2022), http://www.mayoclinic.org/diseases-conditions/placental- abruption/symptoms-causes/syc-20376458.
- 7 - said, "if there is any injury, it's related to the events of the
spinal," because González's blood pressure dropped during it, and
the timeline of the spinal suggested a delay from anesthetizing
González to getting the baby out. Prior to reviewing the strips
at the deposition, however, Dr. Schifrin hedged, "[I]f I say there
was a potential loss of oxygen with a drop in the maternal blood
pressure, I don't have a problem saying that. Did it cause the
injury? That's for somebody else to state." Then, after reviewing
the strips that were made available, Dr. Schifrin testified, "I
just can't tell you . . . the effect of the spinal" because that
segment of the monitoring strips was not available. Post-
deposition, Dr. Schifrin did not supplement or amend his original
report until after the district court had dismissed González's
complaint.
The Hospital brought in its own big gun expert, Dr.
Francisco Gaudier, who submitted his expert report in March 2018.
Indicating that he reviewed monitoring strips up until 11:27 AM
(shortly before González went to the OR), among other hospital
records, Dr. Gaudier concluded that there was no evidence to
suggest ALG suffered oxygen-loss prior to his birth, nor was there
evidence of frequent contractions or a significant drop in blood
pressure (hypotension) from the spinal anesthesia, and therefore
the Hospital did not cause ALG's injuries. González, it appears,
- 8 - opted not to depose Dr. Gaudier, nor did she challenge the district
court's consideration of his report.
From there, discovery concluded, and all signs pointed
to trial. In August 2019, the court scheduled a final pretrial
conference for late March and a trial date for April of 2020. But
then, a month before the pretrial conference, DCHB filed a motion
in limine, joined by Hernández, urging the court to exclude Dr.
Schifrin's report and testimony on several bases, including that
he failed to supplement his report, specify a national standard of
care, cite medical literature as Fed. R. Civ. P. 26 requires, and
provide conclusions based on objective and verifiable methodology
as Fed. R. Evid. 702 and Daubert (the seminal expert evidence case)
demand.
Over González's written objection, which did not include
a request for a hearing, the district court, based on the written
submissions, granted the Hospital's motion in limine. In its
opinion and order, the court first reasoned that the report was
"improperly founded and therefore inadmissible," as Dr. Schifrin
"ma[de] assumptions in the absence of . . . data," such as the
monitoring strips, notations regarding González's contractions
which would show their frequency, intensity or duration, and any
neuroradiological examinations of ALG (like an MRI). As to the
strips, the court pointed out that, "[e]ven though [Dr. Schifrin]
had not examined [them] at the time he rendered his expert report,"
- 9 - he had nonetheless concluded that the Hospital breached the
standard of care because attending personnel did not "'properly
understand the evolution of changes in the fetal heart rate
pattern,'" an opinion based on what he assumed the strips and other
medical documentation would show. As the court held, providing
opinions based on assumptions rather than on "sufficient facts or
data [or] the product of reliable principles" rendered the report
inadmissible. Continuing, the court highlighted two other
deficiencies with the report: it failed to cite any medical
literature, as Rule 26 requires, and it failed to specify whether
the standard of care mentioned in the report was, as Puerto Rico
law requires, the national standard of care.5 Given the
deficiencies it identified in the expert report, the district court
found that "Dr. Schifrin's expert report would not assist the trier
of fact with regards to identifying, let alone understanding the
applicable standard of care and any deviation from it by the
Defendants." Finally, the court found that Dr. Schifrin had a
duty to supplement his report after testifying at his deposition
that the strips showed no injury to ALG up until 90 minutes before
his birth.
In his report, Dr. Schifrin wrote, "The standard of care in 5
a patient with a previous cesarean section complaining of contractions requires the application of a fetal monitor."
- 10 - Meanwhile, the district court rescheduled trial from
April 12, 2020, down the road to November 2021 because of COVID-
19's pandemic sweep across Puerto Rico (as elsewhere). But in the
interim, DCHB, again joined by Hernández, filed a motion for
summary judgment in December 2020, based on their successful motion
in limine: without an expert, they urged, González could not prove
elements of her negligence claim, and therefore had no case. In
a written opposition to the Hospital's motion, González argued as
relevant to this appeal that even without Schifrin's testimony,
she could still make her case by relying on the Hospital's expert,
Dr. Gaudier, whom she had reserved the right to utilize at trial.
Agreeing with appellees that without Dr. Schifrin, González could
not establish causation as González pointed to nothing in Dr.
Gaudier's report that would support such a finding, the district
court granted the motion and in July 2021, entered judgment for
the Hospital, dismissing González's action in its entirety.
After judgment entered, González filed a motion for
reconsideration as to both the dismissal and exclusion of Dr.
Schifrin's testimony and report and in doing so attached a recently
amended expert report from Dr. Schifrin. While the motion for
reconsideration was pending, González filed her first notice of
appeal, prompting the district court to deny the motion, believing
it had lost jurisdiction over the case. González then re-filed
her notice of appeal and here we are.
- 11 - DISCUSSION
González appeals the district court's grant of the
Hospital's motion in limine and for summary judgment, and denial
of her motion for reconsideration. The spoiler, though, is that
the bulk of González's problems flow from the exclusion of her
expert; without one, she cannot make out a medical malpractice
claim.6 So, we begin with González's protestations over the
district court's grant of appellees' motion in limine and move on
to her remaining objections to the district court's summary
judgment and reconsideration rulings.
Exclusion of Expert Testimony
González challenges the exclusion of Dr. Schifrin's
testimony and report.7 Accordingly, we review a "district court's
decision to admit or exclude expert testimony for abuse of
discretion." Milward v. Rust-Oleum Corp. (Milward II), 820 F.3d
6 In Puerto Rico, whose substantive law controls this diversity suit, "to prevail on a medical malpractice claim, . . . a plaintiff must prove by a preponderance of the evidence both that the standard of care was not met, and that the failure to meet an acceptable standard caused the harm." Pagés-Ramírez v. Ramírez–González, 605 F.3d 109, 113 (1st Cir. 2010). To establish both elements, "a trier of fact will generally need the assistance of expert testimony." Id. 7A note about our appellate jurisdiction -- González's appeal from the district court's final judgment "encompass[es] not only [that] but also all interlocutory orders," like the order excluding Dr. Schifrin's testimony, "that merge into it." López-Ramírez v. Toledo-González, 32 F.4th 87, 93 n.4 (1st Cir. 2022) (quoting Martínez-Serrano v. Quality Health Servs. of P.R., Inc., 568 F.3d 278, 283 (1st Cir. 2009)).
- 12 - 469, 472 (1st Cir. 2016). Under that standard, we give "broad
deference to the determination made by the district court as to
the reliability and relevance of expert testimony." Beaudette v.
Louisville Ladder, Inc., 462 F.3d 22, 25 (1st Cir. 2006). And we
will reverse only if "the ruling at issue was predicated on an
incorrect legal standard or we reach a 'definite and firm
conviction that the court made a clear error of judgment.'" United
States v. Corey, 207 F.3d 84, 88 (1st Cir. 2000) (quoting United
States v. Shay, 57 F.3d 126, 132 (1st Cir. 1995)); see also
Schubert v. Nissan Motor Corp. in U.S.A., 148 F.3d 25, 30 (1st
Cir. 1998) ("In the context of the admission or exclusion of
opinion evidence, we have stated that we will uphold the district
court's ruling in this area unless it is manifestly erroneous.")
(internal quotation marks and citation omitted).
Reliability of Dr. Schifrin's Report
Before tackling González's arguments, a bit more
background on the admissibility of expert evidence would be
helpful. As we've previously noted, to provide admissible
testimony, an expert must render conclusions "'in a scientifically
sound and methodologically reliable fashion.'" Milward v. Acuity
Specialty Prods. Grp., Inc. (Milward I), 639 F.3d 11, 15 (1st Cir.
2011) (quoting Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling
Co., 161 F.3d 77, 85 (1st Cir. 1998)). Yes, a district court
should admit an expert "[s]o long as [their] scientific testimony
- 13 - rests upon 'good grounds,' based on what is known." Id. (quoting
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993)).
But neither Daubert nor Rule 702 permits expert opinions grounded
only in the unsupported assertions of the expert. See López-
Ramírez, 32 F.4th at 94 (quoting Gen. Elec. Co. v. Joiner, 522
U.S. 136, 146 (1997)). If that's the case, a "'court may conclude
that there is simply too great an analytical gap between the data
and the opinion proffered,'" provided "that gap is not 'of the
district court's making.'" Id. (first quoting Gen. Elec. Co., 522
U.S. at 146, then quoting Milward I, 639 F.3d at 22).
The district court excluded Dr. Schifrin's testimony, in
part, because it found that Dr. Schifrin based his conclusions on
assumptions about the fetal monitoring strips and other medical
records without having reviewed these records beforehand. And
when confronted with all but the last 90 minutes of these unseen
documents during his deposition, Dr. Schifrin not only conceded
the records up until then demonstrated no fetal stress, but he
also went on to simply hypothesize an alternative theory of injury
from the spinal anesthesia without identifying the basis for such
an opinion. In other words, Dr. Schifrin's failure to point to
and consider material medical records before offering a scientific
opinion produced, from the district court's perspective, a
significant analytical gap in the report. In response to the
district court's ruling, González lobs a few counterarguments.
- 14 - But each misses the mark, and none attacks the district court's
central point that Dr. Schifrin failed to connect his opinions to
sufficient, reliable data. But we'll take on the incoming.
As a threshold matter, González argues that the district
court should have held a Daubert hearing -- we gather sua sponte
-- on the admissibility of Dr. Schifrin's testimony before
excluding it on the motion in limine papers. Yet González cites
no authority for the proposition that a court abuses its discretion
by declining to hold a hearing, and even concedes (rightly) that
"there is no particular procedure that [the court] is required to
follow," unless the motion raises a novel legal issue. See United
States v. Phillipos, 849 F.3d 464, 471 (1st Cir. 2017) (district
court not required to hold Daubert hearing to make reliability
determination of proffered expert); United States v. Pena, 586
F.3d 105, 111 n.4 (1st Cir. 2009) (no abuse of discretion when
district court excluded expert without a hearing if no novel issue
is raised). Indeed, we have imposed no such requirement that the
district court hold a hearing, and González has not developed any
argument that the motion in limine raised a novel or even
particularly complicated issue for the district court to consider.
Next, González defends Dr. Schifrin's report itself from
the district court's scorn. She contends that, despite not having
reviewed the fetal monitoring strips, Dr. Schifrin's causation
analysis "complies completely" with Daubert and Rule 702 -- that
- 15 - is, it should not have been excluded as unreliable. Why? González
insists Dr. Schifrin's report was admissible because it opined on
a cause of injury to ALG and "the only thing [he] could not
specifically indicate is the precise timing of the injury." She
blames the Hospital for not producing the fetal monitoring strips
for Dr. Schifrin's review, accusing them, in passing fashion, of
withholding or spoliating a key portion of the strips, specifically
the last 90 minutes. Then, she claims that Dr. Schifrin's report
nevertheless complies with Daubert and Rule 702 because he employs
an inherently reliable methodology -- a so-called differential
diagnosis -- to formulate his scientific opinion.
Let's talk about González's claim of spoliation. To
demonstrate the same, González would need to show that the strips
had been "destroyed or not preserved." Gomez v. Stop & Shop
Supermarket Co., 670 F.3d 395, 399 (1st Cir. 2012). Although
González does throw around the word "spoliation" in her brief, she
makes no real argument in support of such an assertion, nor does
she point to any evidence in the record that would make such a
showing. Thus, we deem the argument waived. See Vargas-Colón v.
Fundación Damas, Inc., 864 F.3d 14, 24 (1st Cir. 2017) (quoting
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (Arguments
raised in a "perfunctory manner . . . are deemed waived.")).
Moving to the withholding accusation regarding the fetal
monitoring strips, González has similarly failed to explain in her
- 16 - briefs how this supposedly happened. See id. Even if we were
willing to overlook this waiver -- and we are not -- her argument
would still fail. Taking our own walk through the record, we
conclude there is nothing in it to save her withholding claim.
Here's what we find. Like we earlier mentioned, Dr. Schifrin wrote
his original report in December 2016 before González filed suit,
meaning at that juncture, there was no formal discovery to be had
and therefore no chance for DCHB to withhold anything. Then, Dr.
Schifrin was deposed about fourteen months after he wrote his
report, while discovery was ongoing. The week prior, DCHB sent a
Dropbox link with documents they planned to use at the deposition
to counsel for González. Counsel for González conceded at oral
argument that the link contained at least some of the strips but
claimed that neither he nor Dr. Schifrin had time to review them
beforehand.8 Once at the deposition, Dr. Schifrin confirmed that
he had yet to receive or review the strips until opposing counsel
presented them. Only then did Dr. Schifrin review the strips, but
he was only presented with a portion of them, up until 10:40 AM.
Counsel for González did not make an on-the-record request for the
8 Counsel asserted that the Hospital sent the link to his office (not him) on a Friday afternoon, right before he spent the weekend traveling to defend Dr. Schifrin's deposition the following Monday morning, so there was no chance for him or Dr. Schifrin to review it beforehand. Counsel misspoke -- the e-mail transmitting the link was sent to a "davidefron" on the Wednesday morning before he began his travels.
- 17 - remaining strips, nor does González point us to any evidence in
the record, nor have we found any, that she ever formally requested
production of the strips or that there was a discovery dispute
over them, before or after Dr. Schifrin's deposition.9 That's all
we have. DCHB may very well have withheld the strips, but nothing
in the record or the trial court docket explains what happened.
So that's that.
Notwithstanding any concerns about spoliation or
withholding (which, we add, amount mostly to red herrings), the
district court never identified the timing of the injury as an
issue impinging upon the reliability of Dr. Schifrin's report or
methodology; instead, the court found the report unreliable
because it made conclusions about what certain material evidence
must have shown without Dr. Schifrin ever having looked at it
before issuing his report. More on that in a bit.
We turn next to González's contention that Dr.
Schifrin's methodology was fundamentally reliable. This is so,
González says, because in forming his opinion Dr. Schifrin utilized
a methodology described as a "differential diagnosis,"10 which she
9 At oral argument, DCHB's counsel stated that González only made one request for medical records, all prior to filing her complaint, but never made a formal discovery request for medical records (including the strips) after litigation commenced. González's counsel declined to rebut that description of events. 10A differential diagnosis is when a provider puts together a list of conditions with similar symptoms, then conducts additional tests that might rule out some of these conditions and
- 18 - notes "has been the hallmark of the medical profession for
generations of doctors," and in this case, "is scientifically
reliable [as] . . . to the relationship of the fetal heart rate
pattern and oxygenation." Problem is, Dr. Schifrin's report or
testimony never explains the term differential diagnosis or how he
applied it, nor does González discuss it below in more than a
passing line or explain it in her briefing to us. (Probably for
that reason, the district court chose not to explicitly address
it.) On that basis alone, we have affirmed the district court's
exclusion in a similar instance. See López-Ramírez, 32 F.4th at
96 (no abuse of discretion where district court excluded expert
testimony as unreliable and plaintiff failed to argue that
reliability conclusions were erroneous) (citing Zannino, 895 F.2d
at 17).
Moreover, our case law explicitly rejects the inherent
reliability of a differential diagnosis. See Milward II, 820 F.3d
at 476. While a "differential diagnosis can be a reliable method
of medical diagnosis," the expert proffering it "still must show
that the steps taken as part of that analysis — the 'ruling out'
and the 'ruling in' of causes — were accomplished utilizing
lead to a final diagnosis. Differential Diagnosis, Cleveland Clinic (last visited Nov. 18, 2022), https://my.clevelandclinic.org/health/diagnostics/22327- differential-diagnosis; see also Milward II, 820 F.3d at 472 (describing differential diagnosis as "essentially a process of elimination").
- 19 - scientifically valid methods." Id. (cleaned up and emphasis
added).
Here, the district court took issue with the reliability
of Dr. Schifrin's analysis on the whole because (and not to be
redundant) he made assumptions about causation and injury without
knowing if the evidence would support them and never modified his
opinion when he learned he assumed wrongly. The court stressed
how Dr. Schifrin "repeatedly states" he lacked the fetal monitoring
strips altogether and any notes about the frequency and duration
of González's contractions.
And with respect to the data that was available to Dr.
Schifrin, González never explains, here or below, why the data he
did review, when viewed through a differential diagnosis lens,
would be sufficient to form a reliable opinion. Nor does González
explain, by pointing to any record evidence or any challenge to
the court's reasoning, how the district court abused its discretion
in calling out Dr. Schifrin's methodological shortcomings. See
id. (concluding that district court did not abuse its discretion
in excluding differential diagnosis opinion where plaintiffs
failed to show any reliable method for ruling in potential cause).
Rather than giving us some analysis, what González hands us instead
are several pages of unhelpful quotes from a sampling of our prior
expert opinion cases without explaining how anything in those
opinions helps her out.
- 20 - All said, we conclude that the district court did not
abuse its discretion in excluding Dr. Schifrin's testimony as
unreliable and affirm the district court's decision to grant the
motion in limine on reliability grounds.11
Summary Judgment
Next, we deal with González's contention that,
regardless of the district court's exclusion of Dr. Schifrin's
testimony, the court still erred in granting summary judgment to
the Hospital. Our review is de novo. Garcia-Garcia v. Costco
Wholesale Corp., 878 F.3d 411, 417 (1st Cir. 2017). "To defeat a
motion for summary judgment, the nonmoving party must demonstrate
the existence of a trialworthy issue as to some material fact,"
that is, a fact that could "affect the suit's outcome." López-
Ramírez, 32 F.4th at 97 (quoting Cortés-Irizarry v. Corporación
Insular De Seguros, 111 F.3d 184, 187 (1st Cir. 1997)). While we
take the record in the light most favorable to González, she cannot
"rely on an absence of competent evidence, but must affirmatively
point to specific facts that demonstrate the existence of an
11 Despite her half-hearted arguments that the district court's reliability analysis was wrong, González spills the most ink to argue the district court erred in excluding the report for violating Rule 26, largely that exclusion was "too severe" a sanction. We have considered her arguments, but we need not address them any further. See López-Ramírez, 32 F.4th at 94 n.5 (declining to consider argument that exclusion under Rule 26 was "too severe of a sanction" when Rule 702 and Daubert provided independent basis for exclusion).
- 21 - authentic dispute." Feliciano-Muñoz v. Rebarber-Ocasio, 970 F.3d
53, 62 (1st Cir. 2020) (quoting McCarthy v. Nw. Airlines, Inc., 56
F.3d 313, 315 (1st Cir. 1995)); see also Garcia-Garcia, 878 F.3d
at 417.
As we explained, and as González does not dispute, given
the nature of her claim she needs an expert to establish elements
of her negligence cause of action (i.e., causation). See Martínez-
Serrano, 568 F.3d at 286. But since we affirm the exclusion of
Dr. Schifrin's testimony, González can't rely on any of it to
withstand the summary judgment sickle. See Garside v. Osco Drug,
Inc., 895 F.2d 46, 50 (1st Cir. 1990) (explaining that inadmissible
expert evidence can't be used to defeat summary judgment). So,
without Dr. Schifrin, González is left arguing only that her case
survives summary judgment because she could make it at trial
relying on the Hospital's expert, Dr. Gaudier, and other unnamed
"opposing witnesses" to prove causation. González appears to argue
that the mere existence of an admissible expert is enough to
surpass the summary judgment blade. Unfortunately for González,
that's not how it works -- González does not, as she must, point
to any specific finding in Dr. Gaudier's report to support her
claim, or any other admissible evidence to boot.12 See Feliciano-
Muñoz, 970 F.3d at 62.
12 Our own dive into Dr. Gaudier's report confirms that conclusion. In fact, it would wreck González's case. As to the
- 22 - Thus, we affirm the district court's grant of summary
judgment.
Motion for Reconsideration
Last, we take on González's challenge to the district
court's order denying her motion for reconsideration (brought as
a Rule 59(e) motion). She contends that the court wrongly
concluded it had lost jurisdiction over the case (and thus, her
motion too) when she filed her first notice of appeal. She insists
that the court should have instead considered the motion, in part
because it included Dr. Schifrin's newly amended expert report.
Bear with us for a brief play-by-play. González filed
a motion for reconsideration days after the district court entered
judgment. With it, she attached for the first time an amended
expert report from Dr. Schifrin, urging the district court to take
it into account. While that motion was pending, González filed
her first notice of appeal of the judgment. The district court
subsequently denied the motion. While González offered a few bases
for reconsideration, which we'll address shortly, the court gave
one reason for denying it -- that after the notice of appeal, it
no longer had jurisdiction over the case. González then filed a
so-called "Amended Notice of Appeal," which states, like her first
monitoring strips, for example, Dr. Gaudier reviewed strips up until 11:27 AM and concluded they were "reassuring" and there was "absolutely no indication" for continuous monitoring of ALG.
- 23 - notice, that she "appeals . . . the Judgment" of the district
court.13
We begin with the district court's conclusion that it
lost jurisdiction over the case, and over the Rule 59(e) motion
too, when González filed her first notice of appeal. We review
the district court's denial of a Rule 59(e) motion for abuse of
discretion. Biltcliffe v. CitiMortgage, Inc., 772 F.3d 925, 930
(1st Cir. 2014). "A Rule 59(e) motion briefly suspends finality"
of a judgment so the district court can "fix any mistakes and
thereby perfect its judgment before a possible appeal." Banister
v. Davis, 140 S. Ct. 1698, 1708 (2020). In line with that
principle, even after González filed her notice of appeal, the
district court legally maintained jurisdiction then to resolve her
Rule 59(e) motion on the merits. And Federal Rule of Appellate
Procedure 4(a)(4)(B)(i) specifically provides district courts with
jurisdiction to rule on pending motions for reconsideration after
a litigant files her notice of appeal, explaining that the notice
"becomes effective" once the district court resolves that motion.
See also Fed. R. App. P. 4(a)(4)(A)(i)-(vi) (listing post-judgment
motions that fall under this Rule, including Rule 59(e) motions);
13The parties dispute whether we have jurisdiction to review the motion for reconsideration. Because "the merits are easily resolved in favor of the party who would benefit from a finding that jurisdiction is wanting," we assume jurisdiction. Caribbean Mgmt. Grp., Inc. v. Erikon LLC, 966 F.3d 35, 41-42 (1st Cir. 2020) (citations omitted).
- 24 - Fontanillas-Lopez v. Morell Bauzá Cartagena & Dapena, LLC, 832
F.3d 50, 62 n.10 (1st Cir. 2016) (explaining same and that Rule
4(a)(4)(B)(i) is an exception to the principle that filing a notice
of appeal usually "divests" the district court of jurisdiction
over the case (quoting Griggs v. Provident Consumer Disc. Co., 459
U.S. 56, 58 (1982) (per curiam))). Thus, the district court
erroneously denied González's motion on jurisdictional grounds.
But our work does not end there. As we explain next, González has
made no showing that she is entitled to relief under Rule 59(e),
so we still affirm the denial of her motion, albeit for a different
reason than the district court. See Fisher v. Kadant, Inc., 589
F.3d 505, 512 (1st Cir. 2009) (affirming post-judgment ruling "on
an alternate ground that is evident in the record," "in lieu of
remanding," despite district court's legal error in disposing of
the motion).
To obtain Rule 59(e) relief, "the movant must demonstrate
either that newly discovered evidence (not previously available)
has come to light or that the rendering court committed a manifest
error of law." Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st
Cir. 2006). And "a party moving for Rule 59(e) relief may not
repeat arguments previously made during summary judgment, nor may
it present new arguments on a Rule 59(e) if such arguments could,
and should, have been made before judgment issued." Markel Am.
Ins. Co. v. Diaz-Santiago, 674 F.3d 21, 32 (1st Cir. 2012)
- 25 - (internal quotation marks and citation omitted). With this
exacting standard in mind, we need not linger. Here, González's
Rule 59(e) motion regurgitates many of the same arguments put forth
in her summary judgment briefing. She argues -- by citing to the
same cases as before -- that preclusion of her expert is too severe
a sanction under the circumstances and that even without her
expert, she could still prevail at trial by relying upon the
Hospital's expert. The district court rejected these contentions,
and so have we. González's only "new" argument centers on Dr.
Schifrin's amended expert report, which she argues explains the
Hospital's withholding of the monitoring strips and fills any gaps
in Dr. Schifrin's prior report. There is a significant problem
with that contention, however. González introduced the amended
report for the first time with her Rule 59(e) motion, and the
report was authored after the district court entered judgment and
dismissed her case, despite Dr. Schifrin's deposition occurring
several years prior, and the court's grant of the motion in limine
one year prior. Thus, Dr. Schifrin's amended report is not newly
discovered evidence, rather Dr. Schifrin could have filed it any
time after his 2018 deposition when he was shown the monitoring
strips, as he said he'd do during the deposition.
Because González has made no showing that she is entitled to
Rule 59(e) relief, we affirm the denial of her motion.
- 26 - CONCLUSION
With that, we affirm the district court's grant of the
Hospital's motion in limine and motion for summary judgment, and
its denial of the motion for reconsideration. Each side shall
bear its own costs.
- 27 -