Martinez v. United States

33 F.4th 20

• Court: Court of Appeals for the First Circuit
• Decided: April 29, 2022
• Docket: 20-1981P
• Status: Published

Opinion

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.

- 2 - 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)).

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

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 -