United States Court of Appeals For the First Circuit
No. 22-1776
LOURDES RIVERA RODRÍGUEZ; MARIA DE LOS ANGELES RAMOS RODRÍGUEZ; and RAFAEL PACHECO RODRÍGUEZ,
Plaintiffs, Appellants,
v.
HOSPITAL SAN CRISTOBAL, INC.; QUALITY HEALTH SERVICES OF PUERTO RICO, INC.; IRIS VÉLEZ GARCÍA; ZACARÍAS A. MATEO MINAYA; BERRIS CASTILLO; and CONJUGAL PARTNERSHIP MATEO-CASTILLO,
Defendants, Appellees,
FUNDACIÓN SAN CRISTOBAL, INC.; JOHN DOE; CONJUGAL PARTNERSHIP DOE-VÉLEZ; CORPORATIONS A, B, AND C; and UNKNOWN INSURANCE COMPANY,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
Before
Barron, Chief Judge, Lipez and Montecalvo, Circuit Judges.
David Efron, with whom Law Offices of David Efron, P.C. was on brief, for appellants. Jose Hector Vivas, with whom Vivas & Vivas was on brief, for appellees Hospital San Cristobal, Inc., and Quality Health Services of Puerto Rico, Inc. José A. González Villamil, with whom Bufete González Villamil C.S.P. was on brief, for appellees Zacarías A. Mateo Minaya, Berris Castillo, and the Mateo-Castillo conjugal partnership. Roberto Ruiz Comas and RC Legal & Litigation Services PSC for appellee Iris Vélez García.
January 19, 2024 BARRON, Chief Judge. Lourdes Rivera Rodríguez, Maria de
Los Angeles Ramos Rodríguez, and Rafael Pacheco Rodríguez
(collectively, "the plaintiffs") appeal from the grant of summary
judgment against them in this medical malpractice suit. They
brought the suit in the United States District Court for the
District of Puerto Rico after their mother, Ramona Rodríguez Rivera
("Rodríguez"), passed away while in the care of Hospital San
Cristobal ("HSC"). The suit seeks to recover under Puerto Rico
law for the allegedly negligent care that Rodríguez received at
HSC during and following an abdominal surgery performed by Dr.
Iris Vélez García ("Dr. Vélez") and Dr. Zacarías A. Mateo Minaya
("Dr. Mateo"). We affirm.
I.
A.
We begin with a recitation of the undisputed facts and
relevant procedural history.1
On February 29, 2016, Rodríguez visited HSC complaining
of pelvic pain. Rodríguez -- who was then seventy-one years old
and living with several chronic health conditions including
hypertension, type 2 diabetes, and asthma -- was examined by Dr.
1 Unless otherwise specified, all quotations in this section are drawn from reports prepared by the parties' proffered expert witnesses summarizing the medical records from Rodríguez's visits to HSC. - 1 - Vélez, who had been her regular gynecologist since 2005. Dr. Vélez
recommended that Rodríguez undergo a bilateral oophorectomy via
laparotomy after a pelvic ultrasound revealed a "complex cystic
mass" near Rodríguez's right ovary.
Dr. Vélez performed Rodríguez's surgery on April 21,
2016, at HSC. During the surgery, Dr. Vélez discovered that
Rodríguez had a "frozen pelvis" with multiple "intraabdominal
adhesions," and so she requested a surgical consultation from Dr.
Mateo, another gynecologist on HSC's staff. Dr. Mateo assisted
Dr. Vélez with Rodríguez's surgery. On April 25, 2016, Rodríguez
was discharged from HSC after HSC staff observed "positive bowel
sounds" and Rodríguez reported "positive stool passage."
Four days later, on April 29, during a scheduled
postoperative appointment with Dr. Vélez at HSC, Rodríguez
reported that she had been experiencing "nausea, vomiting, and
abdominal/pelvic pain since April 26." Rodríguez was then admitted
to HSC's emergency department and was diagnosed with a presumed
perforated sigmoid colon. Later that day, Rodríguez underwent an
emergency exploratory laparotomy to address her presumed
perforated colon, during which Dr. Vélez, Dr. Mateo, and one Dr.
Ortiz Rosado2 performed a "partial colectomy with Hartman[n] pouch,
end colostomy[,] and subtotal hysterectomy." Rodríguez was
2 Dr. Ortiz Rosado is not a party to this suit. - 2 - subsequently admitted to HSC's intensive care unit ("ICU") in
critical condition. She was intubated on a respirator with a
nasogastric ("NG") tube, a colostomy bag, and a Foley catheter.
In HSC's ICU, Rodríguez received care from various
specialists, including Dr. Vélez and staff from HSC's "general
surgery, internal medicine, infectious disease, cardiology,
pulmonology, nephrology, hematology/oncology, and ENT"
departments. Two days after her admission to the ICU, on May 1,
Rodríguez was diagnosed with "bacteremia/sepsis." Then, on May 4,
Rodríguez tested positive for pseudomonas bacteria, at which point
HSC's "infection control program became involved" with her care.
HSC's epidemiology department recommended several specific
disinfection protocols to treat Rodríguez's pseudomonas infection,
but "[t]here is no documentation that these recommendations were
carried out at any time."
On May 6, HSC staff discovered that Rodríguez's stoma
had become necrotic. Rodríguez consequently underwent a third
surgical procedure consisting of "an exploratory laparotomy, ileal
resection, transverse colon loop colostomy, enterography, and
enteroclysis." Dr. Vélez and Dr. Ortiz Rosado performed this third
surgery. Rodríguez was then returned to the ICU, where she
continued to receive care from HSC staff.
On May 12, nursing and infectious-disease staff noted
"the presence of worms and/or maggots in the right nostril of - 3 - [Rodríguez], where the NG tube was located." A CT scan of
Rodríguez's sinuses was ordered, but there was otherwise "little
to no documentation of [any] consultations regarding the presence
of worms nor any analysis of the source of these worms."
On May 15, it was "documented that [Rodríguez's] fecal
collector [was] out of place." The following day, HSC staff noted
that the fecal collector "continue[d] to be displaced and that
there [was] abundant fecal material around the site [of the fecal
collector] as well as coming from" an "open wound" near the site.
On May 18, two types of bacteria were detected in
cultures of fluid taken from Rodríguez's abdomen. That same day,
HSC staff noted that Rodríguez was "no longer responding to verbal
or physical stimuli." By the following afternoon, HSC staff
determined that Rodríguez could not undergo a planned fourth
procedure "due to worsening of her condition," and they obtained
a "Do Not Resuscitate" order from Rodríguez's family. Rodríguez
died later that evening, at 8:48 P.M. on May 19, 2016.
An autopsy determined that Rodríguez's cause of death
was "peritonitis due to sigmoid colon perforation with associated
sepsis and septic shock. Complicating factors were congestive
heart failure, bilateral bronchopneumonia, and diabetic
ketoacidosis." The autopsy also showed "multiple pressure ulcers"
on Rodríguez's body.
- 4 - B.
The plaintiffs filed suit in the District Court on May
11, 2018. The operative complaint named as defendants Quality
Health Services of Puerto Rico, Inc., doing business as HSC
("Quality Health/HSC"); Dr. Vélez; Dr. Mateo; Dr. Mateo's wife,
Berris Castillo; the Mateo-Castillo conjugal partnership; and
several other individuals and corporations "whose identities
[were] unknown, [but who] by their negligent acts or omissions
caused or contributed to the damages claimed."3
The operative complaint asserted that "[HSC] and [its]
personnel, including [Dr. Vélez] and [Dr. Mateo], were practicing
below the standard of care in the treatment" that they provided to
Rodríguez, and that Rodríguez's "premature death . . . was caused
by the negligent management of her condition." The complaint
alleged several departures from "medical standards" and instances
of "professional negligence" in the defendants' care of Rodríguez
which "include[d], but [were] not limited to":
failure to recognize, appropriately asses[s] and repair damage to any organs involved in or near the operative field prior to closing the abdomen; failure to recognize that Mrs. Rodríguez’s sigmoid colon was damaged in this circumstance and to perform an appropriate repair procedure to assure sigmoid colon integrity before abdominal closure; failure in the proper management of hygiene by the
3 The plaintiffs also named as a defendant, but later voluntarily dismissed, Fundación San Cristobal, Inc. - 5 - hospital staff in the care of Mrs. Rodríguez; failure in the documentation of the findings; failure to manage the infectious processes suffered by the patient; failure to manage the patient's pre-existing condition of diabetes which likely exacerbated her condition and accelerated her demise; failure to timely correct the displacement of the fecal collector[;] and failure to manage the patient's care by presenting multiple pressure ulcers at autopsy due to the fact that apparently the staff did not make changes in the patient's position in the required time.
The plaintiffs claimed that these alleged deficiencies in the care
provided to Rodríguez made the defendants liable for negligence
under Puerto Rico law. See P.R. Laws tit. 31, §§ 5141, 5142. The
plaintiffs sought $3 million in damages for pain and suffering.
C.
To establish a prima facie case of negligence under
Puerto Rico law, "a plaintiff must establish (1) the duty owed
(i.e., the minimum standard of professional knowledge and skill
required in the relevant circumstances), (2) an act or omission
transgressing that duty, and (3) a sufficient causal nexus between
the breach and the claimed harm.” Cortéz-Irizarry v. Corporación
Insular de Seguros, 111 F.3d 184, 189 (1st Cir. 1997). In cases
of alleged medical malpractice, "Puerto Rico holds health care
professionals to a national standard of care." Id. at 190.
Under Puerto Rico law, "physicians are protected by a
presumption to the effect that they have exercised a reasonable
degree of care and the treatment provided was adequate." López - 6 - Delgado v. Cañizares, 163 P.R. Dec. 119 (2004) (certified
translation at Appellant's App. 247). Thus, "[a] physician's
negligence is not presumed from the fact that a patient suffered
damages or the treatment was unsuccessful." Id. Instead, to
establish "a breach of a physician's duty of care," a plaintiff
"ordinarily must adduce expert testimony to limn the minimum
acceptable standard and confirm the defendant doctor's failure to
meet it." Cortéz-Irizarry, 111 F.3d at 190.
In preparation for trial, the District Court ordered the
parties to submit a joint pretrial conference memorandum outlining
the contours of the case and the evidence that they would present
at trial. The plaintiffs indicated in the memorandum that they
would rely on the testimony of an expert witness, Dr. Jason S.
James ("Dr. James"), to establish the defendants' negligence. The
plaintiffs asserted that Dr. James would
testify as a medical expert in obstetrics, gynecology[,] and general medicine about his professional qualifications, his review of the medical records in this case, the applicable medical standards, his expert report and deposition testimony, the reports of defendants' experts, his professional opinion as to the departures from the medical standards by defendants in the treatment provided to [Rodríguez] and their causal relationship with [Rodríguez's] injuries and premature death[,] and about any applicable medical literature in support of his opinion.
The plaintiffs also "reserve[d] the right to use as their own any
expert witness announced by the defendants." - 7 - Dr. Vélez and Dr. Mateo represented that they would each
call an expert witness of their own, and Quality Health/HSC
represented that it would call its own expert witness as well.
Dr. Vélez represented that her expert, Dr. Adrián Colón Laracuente,
would testify as to Dr. Vélez's treatment of Rodríguez "from the
gynecological and surgical standpoint . . . and her compliance
with the standard of care." Dr. Mateo represented that his expert,
gynecological specialist Dr. Alfredo S. Colón Martínez, would
testify "regarding his opinion that Dr. Mateo complied with all
the applicable medical standards while providing assistance during
the two surgical interventions to [Rodríguez] in which his
assistance was requested." Quality Health/HSC represented that
its expert, internist Dr. Anibelle Altieri Ramirez, would testify
as to "the standard of care applicable to this case, the
correctness of the treatment given to" Rodríguez by HSC staff,
"and that such treatment did not cause [the] plaintiff[s']
damages."
Following a pretrial conference, the District Court
referred the case to a magistrate judge for mediation. Mediation
was unsuccessful, in part because the defendants represented at
the settlement conference that they intended to file motions in
limine, the resolution of which had the potential to affect the
parties' settlement efforts.
- 8 - Two separate motions in limine were filed -- one by
Quality Health/HSC and the other by Dr. Mateo, Berris Castillo,
and the Mateo-Castillo conjugal partnership, joined by Dr. Vélez.
The motions sought to exclude the expert opinion testimony of the
plaintiffs' expert, Dr. James. Both motions argued that Dr.
James's testimony must be excluded because his expert report did
not comply with Federal Rule of Civil Procedure 26(a) and because,
even if the report did, the plaintiffs had not met their burden
under Federal Rule of Evidence 702 to show that his testimony was
admissible.
Federal Rule of Civil Procedure 26 requires parties in
civil cases to disclose their witnesses. Rule 26(a)(2)(B) requires
that the disclosure of any witness "retained or specially employed
to provide expert testimony" include a written report prepared and
signed by the expert witness which "must contain," among other
requirements, "a complete statement of all opinions the witness
will express and the basis and reasons for them." Rule 26(e)(2)
then requires that the proponent of an expert witness "supplement"
their initial disclosure to alert opposing parties to any
subsequent "additions or changes" to the content of the expert's
testimony. Federal Rule of Civil Procedure 37(c)(1), meanwhile,
provides that "[i]f a party fails to provide information or
identify a witness as required by Rule 26(a) or (e), the party is
not allowed to use that information or witness to supply evidence - 9 - on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless."
Federal Rule of Evidence 702 governs the admissibility
of expert opinion testimony. It provides that a qualified expert
witness "may testify in the form of an opinion or otherwise" only
if the party seeking to introduce the witness's testimony
demonstrates by a preponderance of the evidence that (a) the
witness'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's opinion
reflects a reliable application of the principles and methods to
the facts of the case." Fed. R. Evid. 702.
Dr. James's expert report first summarized his
qualifications as a licensed physician and gynecological
specialist "well versed in the current standards of care applicable
to the practice of obstetrics and gynecology." Dr. James's report
stated that, "[i]n this matter, [his] opinions [were] based on
[certain enumerated] medical records and documents . . . and on
reliable and accepted scientific principles to a reasonable degree
of medical certainty." The report next stated that Dr. James had
reviewed the hospital records associated with Rodríguez's stays at
HSC between April 21 and April 25, 2016, and between April 29 and - 10 - May 19, 2016, as well as Dr. Vélez's office records pertaining to
her care of Rodríguez since 2005. The report then recited the
facts of Rodríguez's case and closed with Dr. James's "Comment" on
the case. In that "Comment" section, Dr. James wrote:
Based on the medical documents submitted, it appears that [Rodríguez] expired from sepsis and septic shock, a condition caused by the perforated sigmoid colon that occurred in the initial surgery on April 21, 2016 performed by Dr. [Vélez] and Dr. [Mateo]. This patient encountered several organisms throughout her various organ systems: Klebsiella pneumonia, Pseudomonas aeruginosa, and Enterococcus faecalis in the blood, in the inguinal and perianal secretions, in the urine, in the colostomy, and in the throat, as noted in the autopsy report. In addition, the most surprising finding was the worms and/or maggots that were noted to be present in the nostril of the patient where the NG tube was placed. There is little room for doubt regarding the inappropriate nature and poor hygiene which was utilized by the hospital personnel in caring for [Rodríguez]. There is poor documentation regarding this unusual discovery and no evidence that appropriate precautions were taken to prevent this occurrence or to remedy the situation once it was realized. There is no evidence of appropriate disinfection of the hospital room, equipment, hospital staff, and the patient herself as recommended by infectious disease and epidemiology. In addition, there appears to be poor management of [Rodríguez's] medical comorbidities, such as inadequate care for her diabetes which likely exacerbated her condition and accelerated her demise. It appears that her fecal collector remained out of place for more than 24 hours after discovering it had become dislodged, allowing fecal material to contaminate the stoma as well as the open wound itself. Further, there is evidence on autopsy of multiple pressure - 11 - ulcers, which lends further evidence of the substandard care that [Rodríguez] received during her admission at [HSC].
In conclusion, it is my opinion -- based upon a reasonable degree of medical certainty -- that in the case discussed above there were numerous deviations, failures, and departures from acceptable standards of care on the part of Dr. [Vélez], Dr. Mateo, as well as on the part of [HSC] and its staff.
In their motions to exclude Dr. James's expert testimony
under Rule 26, the defendants argued that Dr. James's expert report
"fail[ed] to state the totality of his opinions in this case . . .
considering the scope of the testimony stated in the Pretrial
Report and which [the p]laintiffs apparently intend[ed] to present
at trial." The defendants further contended that the report "[did]
not state the applicable standards of care; [did] not specify
whether the standards of care are applicable on a national basis;
[did] not state how the applicable standards were specifically
breached"; did not explain how the defendants' "alleged negligence
caused and/or contributed to [Rodríguez's] condition and demise";
and was "conspicuously lacking in reference or citations to medical
literature." Accordingly, the defendants argued that Dr. James's
testimony had to be excluded under Rule 37(c).
Alternatively, the defendants argued that Dr. James's
testimony should be "excluded as speculative" under Federal Rule
of Evidence 702. They contended that was so because Dr. James's
expert report did not articulate either a "[s]cientifically - 12 - acceptable methodology" or "the bases and foundations that
underlie [his] expert opinion" and because nothing else in the
record enabled the plaintiffs to meet their burden to show that
his testimony was admissible under Rule 702.
The plaintiffs opposed the defendants' motions to
exclude Dr. James's testimony. The plaintiffs did not request,
however, that the District Court hold a hearing on the merits of
the motions at which Dr. James could testify. Nor did they request
leave to supplement Dr. James's expert report. Instead, the
plaintiffs argued that the entirety of Dr. James's proposed
testimony was admissible based on the expert report itself.
The District Court granted the defendants' motions to
exclude Dr. James's testimony. In so ruling, the District Court
relied entirely on Federal Rule of Evidence 702.
As to Dr. Vélez's and Dr. Mateo's motion under Rule 702
to exclude Dr. James's testimony, the District Court reasoned that
Dr. James's expert report "conclude[d] as a matter of fact that
Dr. Vélez and Dr. Mateo 'perforated' [Rodríguez's] sigmoid colon
during the first surgery on April 21, 2016" but provided "no
explanation" for that conclusion, instead "seemingly assum[ing]
that Dr. Vélez and Dr. Mateo did so because [Rodríguez] returned
to [HSC] complaining of pelvic pain some days after being
discharged" and was found to have had a perforated sigmoid colon
at that time. The District Court held that that assumption was - 13 - "not enough for a finding that Dr. Vélez and Dr. Mateo perforated
the colon." The District Court further observed that although Dr.
James "conclude[d that] Dr. Vélez and Dr. Mateo deviated from
acceptable standards of care," his report did not "state what those
standards are, nor where they come from[, nor] how Dr. Vélez and
Dr. Mateo deviated from them."
As to Quality Health/HSC's motion under Rule 702 to
exclude Dr. James's testimony, the District Court concluded that
Dr. James's opinions regarding the alleged negligence of HSC staff
"fare[d] no better" than his opinions regarding the alleged
negligence of Drs. Mateo and Vélez. And that was so, the District
Court explained, even though the report pointed to several alleged
departures from acceptable standards of care, because "nowhere in
[his] report [did] Dr. James identify the standard of care that
[HSC's] hospital staff should have adhered to; where that standard
comes from; and how the staff deviated from that standard."
At the same time that the District Court granted the
defendants' motions to exclude Dr. James's testimony under Rule
702, the District Court also granted the defendants' requested
leave to move for summary judgment within ten days. Dr. Mateo,
Berris Castillo, and the Mateo-Castillo conjugal partnership moved
for summary judgment seven days later, which motion Dr. Vélez
joined; Quality Health/HSC filed its own motion for summary
judgment two days later. - 14 - The plaintiffs opposed both motions for summary
judgment, arguing that even if Dr. James's testimony were excluded,
they could rely on the testimony of the defendants' expert
witnesses to prove their case. In the alternative, the plaintiffs
asked the District Court to reconsider its ruling excluding Dr.
James's expert testimony, as they contended that the defendants
were not entitled to summary judgment if Dr. James's testimony
were not excluded.
The District Court denied the plaintiffs' request for
reconsideration, granted the defendants' motions for summary
judgment, dismissed the plaintiffs' claims with prejudice, and
entered judgment in favor of the defendants. The plaintiffs timely
appealed the District Court's entry of summary judgment.
II.
We first address the plaintiffs' challenge to the
District Court's grant of summary judgment to Dr. Vélez and Dr.
Mateo. "'To defeat a motion for summary judgment, the nonmoving
party must demonstrate the existence of a trialworthy issue as to
some material fact,' i.e., a fact that 'potentially could affect
the suit's outcome.'" López-Ramírez v. Toledo-González, 32 F.4th
87, 97 (1st Cir. 2022) (quoting Cortéz-Irizarry, 111 F.3d at 187).
To make this showing, a plaintiff "must affirmatively point to
specific facts that demonstrate the existence of an authentic
dispute." Feliciano-Muñoz v. Rebarber-Ocasio, 970 F.3d 53, 62 - 15 - (1st Cir. 2020) (quoting McCarthy v. Nw. Airlines, Inc., 56 F.3d
313, 315 (1st Cir. 1995)). Our review of the summary judgment
ruling here is de novo. See Milward v. Rust-Oleum Corp. (Milward
II), 820 F.3d 469, 472-73 (1st Cir. 2016).
The District Court based its ruling that Drs. Mateo and
Vélez were entitled to summary judgment in part on its decision to
exclude Dr. James's expert testimony under Rule 702. The
plaintiffs now contend that this Rule 702 ruling was in error.
The plaintiffs do not suggest in advancing that contention,
however, that they can meet their burden to show that Dr. James's
testimony is admissible under Rule 702 based on anything extrinsic
to his expert report.4 The plaintiffs simply contend based on the
report itself that the District Court abused its discretion in
ruling that the plaintiffs had failed to meet that burden.5 The
plaintiffs then go on to contend, in the alternative, that we must
4 The plaintiffs assert as part of their challenge to the District Court's Rule 702 ruling that the District Court's decision to exclude Dr. James's report altogether after finding it deficient was "too extreme of a sanction" -- but they conceded at oral argument that they never requested leave to amend Dr. James's expert report to cure its alleged deficiencies, and they point to no authority suggesting that the District Court should have sua sponte granted them leave to do so before excluding the testimony. 5 Although the plaintiffs argue that the District Court erred by not holding a Daubert hearing on the admissibility of Dr. James's testimony before granting the defendants' motions in limine to exclude it, the contention fails for the same reasons we rejected a similar contention in González-Arroyo v. Doctors' Center Hospital Bayamón, Inc., 54 F.4th 7, 15 (1st Cir. 2022). - 16 - overturn the summary judgment ruling even if the District Court's
Rule 702 determination was not error. And that is so, they
contend, because of evidence in the record that is independent of
Dr. James's testimony. For the reasons set forth below, we
conclude that the plaintiffs' grounds for challenging the summary
judgment ruling have no merit.
To assess the plaintiffs' challenge to the summary
judgment ruling at issue, it helps to focus first on the aspect of
that challenge that concerns the District Court's ruling excluding
Dr. James's testimony under Rule 702. To do so, we begin by
reviewing the requirements that Rule 702 sets forth before then
turning back to the District Court's Rule 702 ruling. With that
foundation in place, we then will be well-positioned to explain
why the plaintiffs' challenge to the grant of summary judgment to
Dr. Vélez and Dr. Mateo fails.
1.
Rule 702 provides in full that:
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 proponent demonstrates to the court that it is more likely than not that:
(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; - 17 - (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’s opinion reflects a reliable application of the principles and methods to the facts of the case.6
Rule 702, in its present form, incorporates the
reasoning of the Supreme Court of the United States in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See Fed.
R. Evid. 702 advisory committee's notes to 2000 amendment. There,
the Court construed an earlier version of the rule and explained
that it assigns a "gatekeeping role for the judge" to determine
whether "an expert's testimony both rests on a reliable foundation
and is relevant to the task at hand." Daubert, 509 U.S. at 597.
As a result, the present version of Rule 702 "affirms
the trial court's role as gatekeeper and provides some general
standards that the trial court must use to assess the reliability
and helpfulness of proffered expert testimony." Fed. R. Evid. 702
advisory committee's notes to 2000 amendment. To that end, the
present version of the rule establishes that expert testimony may
6 This is the current version of Rule 702, which went into effect on December 1, 2023. See Fed. R. Evid. 702 advisory committee's notes to 2023 amendment. However, the application of the rule to this case is not affected by the 2023 changes. See Fed. R. Evid. 702 (2011) (amended 2023). - 18 - be admitted into evidence only if it is "based on sufficient facts
or data," is "the product of reliable principles and methods," and
"reflects a reliable application of the principles and methods to
Moreover, in applying Rule 702, we continue to draw on
Daubert's reasoning. See, e.g., Milward v. Acuity Specialty Prods.
Grp., Inc., (Milward I), 639 F.3d 11, 14 (1st Cir. 2011). Thus,
"[t]he focus" of the inquiry into the admissibility of expert
testimony under Rule 702 "must be solely on principles and
methodology, not on the conclusions that they generate." Daubert,
509 U.S. at 595. This distinction means that "[w]hen the factual
underpinning of an expert's opinion is weak, it is a matter
affecting the weight and credibility of the testimony" and thus "a
question to be resolved by the jury." Milward I, 639 F.3d at 22
(citation omitted).
At the same time, "nothing 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." Gen. Elec. Co. v. Joiner, 522 U.S.
136, 146 (1997). Indeed, Daubert made clear that to be admissible
under Rule 702, an expert's opinion "must be supported by
appropriate validation" and rest on "more than subjective belief
or unsupported speculation." 509 U.S. at 590. Thus, in assessing
whether the expert opinion has the requisite validation for - 19 - purposes of Rule 702, a court may conclude that it does not
because, given the record at hand, "there is simply too great an
analytical gap between the data and the opinion proffered."
Joiner, 522 U.S. at 146.
We note that "[t]he party seeking to introduce the
evidence has the burden of establishing both its reliability and
its relevance," Milward II, 820 F.3d at 473 (citing Daubert, 509
U.S. at 593 n.10), and that we review a district court's ruling on
the admissibility of expert testimony under Rule 702 for abuse of
discretion, assessing "[p]redicate factual findings" for "clear
error" and "pure questions of law . . . de novo," id. at 472.
2.
In its ruling under Rule 702 concerning Dr. James's
testimony, the District Court explained that Dr. James's expert
report asserted two opinions about the alleged negligence of Drs.
Mateo and Vélez: that "Dr. Vélez and Dr. Mateo 'perforated'
[Rodríguez's] sigmoid colon during the first surgery on April 21,
2016," and that "Dr. Vélez and Dr. Mateo deviated from acceptable
standards of care" in their treatment of Rodríguez. The District
Court then determined that Dr. James's testimony setting forth
those two opinions was inadmissible under Rule 702, excluding on
that basis the entirety of Dr. James's testimony as to Dr. Vélez
and Dr. Mateo.
- 20 - Notably, by excluding all of Dr. James's expert
testimony as to those two defendants, the District Court excluded
Dr. James's testimony concerning his opinion that, "[b]ased on the
medical documents submitted, it appears that [Rodríguez] expired
from sepsis and septic shock, a condition caused by the perforated
sigmoid colon that occurred in the initial surgery on April 21,
2016 performed by [Dr. Vélez and Dr. Mateo]." The District Court
appears to have done so because it treated Dr. James's opinion in
that regard as if it were a "conclu[sion] as a matter of fact that
Dr. Vélez and Dr. Mateo 'perforated'" Rodríguez's sigmoid colon
during the April 21 surgery. Rivera Rodríguez v. Quality Health
Servs. P.R., Civ. No. 18-1287 (PAD), 2022 WL 3445348, at *4 (D.P.R.
Aug. 4, 2022).
To support that aspect of the Rule 702 determination,
the District Court explained that "Dr. James seemingly assume[d]
that Dr. Vélez and Dr. Mateo [perforated Rodríguez's colon] because
[Rodríguez] returned to [HSC] complaining of pelvic pain some days
after being discharged from her first surgery [and] it was
ultimately discovered that she had a perforated colon." Id. But,
the District Court explained, such an assumption was "not enough
[to support] a finding that Dr. Vélez and Dr. Mateo perforated the
colon[.]" Id. The District Court then supported that
determination in a footnote by stating that "Dr. James's conclusion
[was] contradicted by the medical record" because, several days - 21 - after the April 21 surgery, on "April 25, 2016, [Rodríguez] was
tolerating a regular diet and passing flatus and stool normally
and was deemed ready for discharge." Id. at *4 n.3. Yet, the
District Court reasoned, Dr. James "inexplicably state[d] that Dr.
Vélez and Dr. Mateo perforated [Rodríguez's] colon" on April 21.
Id.
There is some force to the plaintiffs' contention that
the District Court erred in this aspect of its ruling under Rule
702 because it wrongly based the ruling on its own assessment of
the "factual underpinning" of the opinion by Dr. James that was
excluded. Daubert, 509 U.S. at 595. As Daubert makes clear,
questions about the strength of "the factual underpinning of an
expert's opinion" are "matter[s] affecting the weight and
credibility of the testimony" and therefore "a question to be
resolved by the jury." Id.
Moreover, the District Court appears to have understood
that Dr. James's testimony would set forth the opinion that Dr.
Vélez and Dr. Mateo perforated the colon during the surgery on
April 21, rather than merely that the colon was perforated during
that surgery. While the District Court explained its reasons for
concluding that testimony by Dr. James that those defendants
perforated the colon at that time was not admissible under Rule
702, it gave no reason for concluding that Rule 702 barred Dr.
James from simply testifying that the colon was perforated then, - 22 - without explicitly attributing the act of perforation to either of
those defendants.
Dr. James's expert report, however, opines only that the
perforation of Rodríguez's sigmoid colon occurred in the initial
surgery on April 21. It does not assert at any point that the
perforation occurred due to any action that either Dr. Mateo or
Dr. Vélez took at that time -- or, for that matter, at any other
time. Indeed, in that respect, the report accords with the
plaintiffs' operative complaint, which also does not allege at any
point that Dr. Vélez or Dr. Mateo acted negligently by perforating
Rodríguez's colon. Instead, the operative complaint alleges that
their negligence lay in their "failure to recognize, appropriately
assess and repair damage to any organs involved in or near the
operative field prior to closing the abdomen" and their "failure
to recognize that [Rodríguez’s] sigmoid colon was damaged in this
circumstance and to perform an appropriate repair procedure to
assure sigmoid colon integrity before abdominal closure."
Despite these potential problems with the District
Court's analysis of the admissibility of this specific portion of
Dr. James's expert testimony under Rule 702, we reject the
plaintiffs' separate contention that the District Court abused its
discretion in excluding Dr. James's broad conclusion that "Dr.
Vélez and Dr. Mateo deviated from acceptable standards of care" in
their treatment of Rodríguez. With respect to that aspect of the - 23 - District Court's ruling under Rule 702, Dr. James's report
identifies no national standard of care against which those
defendants' assertedly negligent acts or omissions could be
measured by the trier of fact. There also is no other basis in
the record for concluding by a preponderance of the evidence that
Dr. James's opinion that Dr. Vélez and Dr. Mateo acted negligently
is "the product of reliable principles and methods." Fed. R. Evid.
702(c). We thus agree with Dr. Vélez and Dr. Mateo that the
District Court correctly concluded that Dr. James's opinion that
"Dr. Vélez and Dr. Mateo deviated from acceptable standards of
care" in their treatment of Rodríguez could "only be construed as
one based on a res ipsa loquitur inference, an inference
insufficient to withstand scrutiny in this setting." Rivera
Rodríguez, 2022 WL 3445348, at *4 (citing López-Ramírez v. Grupo
Hima San Pablo, Inc., Civ. No. 16-3192 (RAM), 2020 WL 365554, at
*5 (D.P.R. Jan. 22, 2020) ("[I]n the context of determining the
admissibility of expert testimony, proffered testimony that
consists solely of a res ipsa loquitur opinion would lack the
reliable methodology and specialized information required by Fed.
R. Evid. 702."), aff'd López-Ramírez, 32 F.4th 87).
The question that now remains, with respect to the
plaintiffs' challenge to the grant of summary judgment to Dr. Vélez
and Dr. Mateo, is whether that challenge has merit, given that the
District Court properly excluded Dr. James's conclusion that Drs. - 24 - Vélez and Mateo deviated from acceptable standards of care. As we
will next explain, we conclude that the answer is that the
challenge has none.
3.
To be sure, as we have explained, it may be that
testimony from Dr. James that Rodríguez's colon was perforated
during the April 21 surgery was wrongly excluded under Rule 702.
But even if we were to assume as much, there still would be no
basis in the record from which a reasonable juror could conclude
that Dr. Vélez and Dr. Mateo were negligent as alleged, given that
the District Court did not err in excluding Dr. James's testimony
that "Dr. Vélez and Dr. Mateo deviated from acceptable standards
of care" in their treatment of Rodríguez.
We recognize that the plaintiffs do contend that the
District Court's grant of summary judgment was in error because,
even without Dr. James's opinion as to Dr. Vélez's and Dr. Mateo's
negligence, the plaintiffs could have relied at trial on the
testimony of the defendants' expert witnesses to "help the jury to
determine both the proper standards of care and the causal nexus
between [the] defendants' negligence and [the p]laintiffs'
damages." To support this contention, the plaintiffs point out
that none of the defendants' expert witnesses' reports expressly
refutes Dr. James's conclusion that Rodríguez "expired from sepsis
- 25 - and septic shock, a condition caused by the perforated sigmoid
colon that occurred in the initial surgery on April 21, 2016."
In granting the defendants' motions for summary
judgment, however, the District Court determined that it was
"irrelevant whether [the] defendants' experts' reports . . .
refute Dr. James'[s] conclusion" that Rodríguez's sigmoid colon
was perforated during her initial surgery.7 As the District Court
noted, all of the defendants' experts opined that the "defendants'
actions did not deviate from the standards of care." As such, the
District Court concluded that the defense experts' trial testimony
would not "align . . . with [the] plaintiffs' legal theories or
otherwise lend any support to their case." And, upon a thorough
review of the evidentiary record, we find no basis on which to
disagree with the determination that Dr. Vélez and Dr. Mateo were
entitled to summary judgment.
7 We note that the District Court gave as one ground for rejecting this challenge to the grant of summary judgment the absence of any evidence in the record that would permit a reasonable juror to find that the colon was perforated on April 21. But, for the reasons we have explained, there would be such evidence in the record if the District Court erred in excluding under Rule 702 Dr. James's opinion as to when the colon was perforated. Thus, we address above the District Court's grounds for rejecting the plaintiffs' challenge to its summary judgment ruling on the understanding that such evidence would be in the record, as, for present purposes, we are assuming it was error to exclude that aspect of Dr. James's testimony. - 26 - None of the defendants' experts' reports sets forth any
opinion that would support the plaintiffs' theory that any
negligent act or omission by Dr. Vélez or Dr. Mateo caused
Rodríguez's decline and/or her premature death. In his report,
Dr. Mateo's proffered expert, Dr. Alfredo S. Colón Martínez,
concluded that Dr. Mateo's "involvement in this complicated case
[did] not deviate[] from the standards of care" applicable to the
procedures in which he participated. And Dr. Vélez's proffered
expert, Dr. Adrián Colón Laracuente, concluded in his report that
Dr. Vélez "did not deviate from the standard of care in her
treatment" of Rodríguez.
True, if the District Court had admitted Dr. James's
opinion that Rodríguez's sigmoid colon was perforated during the
April 21 surgery performed by Drs. Mateo and Vélez, then a
reasonable trier of fact could have inferred that Rodríguez's
eventual death from sepsis and septic shock resulted from the
surgery on that date. But even if the trier of fact could
reasonably infer causation from that opinion, the record would
still lack any basis for a finding that either Dr. Vélez or Dr.
Mateo committed any breach of an applicable standard of care that
led to the perforation of Rodríguez's sigmoid colon during that
surgery.
Thus, the record in this case contains no "expert
testimony to limn the minimum acceptable standard and confirm the - 27 - defendant doctor[s'] failure to meet it," as is required to
"establish[] a breach of a physician's duty of care" under Puerto
Rico's negligence statute. Cortéz-Irizarry, 111 F.3d at 190.
Accordingly, we affirm the District Court's grant of summary
judgment to Dr. Vélez and Dr. Mateo.
III.
Having affirmed the District Court's grant of summary
judgment to defendants Dr. Vélez and Dr. Mateo, we now must address
the plaintiffs' challenge to the District Court's grant of summary
judgment to Quality Health/HSC. Here, too, the plaintiffs base
their challenge both on a contention that the District Court erred
in excluding under Rule 702 the expert testimony of Dr. James and,
in the alternative, on the ground that the District Court erred in
granting summary judgment to Quality Health/HSC even assuming that
such testimony was properly excluded.
In pressing their challenge to this summary judgment
ruling, the plaintiffs appear to be advancing two distinct theories
by which their claim of negligence against Quality Health/HSC may
survive that defendant's motion for summary judgment. One of these
theories is predicated on HSC staff's alleged failure to utilize
proper hygiene in their care of Rodríguez. The other is predicated
on HSC staff's alleged failure to properly manage Rodríguez's
comorbidity of diabetes. We address each of these theories of
liability separately, addressing, with respect to each, both the - 28 - plaintiffs' challenge to the relevant Rule 702 ruling as to Dr.
James's testimony and their contention that, even assuming the
Rule 702 ruling was sound, the grant of summary judgment to Quality
Health/HSC was not.
Insofar as the plaintiffs premise their challenge to the
grant of summary judgment in favor of Quality Health/HSC on HSC
staff's alleged hygiene-related failures, they do so in part by
challenging the District Court's decision to exclude Dr. James's
testimony under Rule 702. The plaintiffs argue that Dr. James's
expert report "clearly express[ed]" multiple "deficiencies" in HSC
staff's treatment of Rodríguez. And it is true that several of
those alleged deficiencies relate to the plaintiffs' allegation
that HSC staff utilized "inappropriate and poor hygiene at [HSC]
and in the care of [Rodríguez]." In that regard, the plaintiffs
refer to several facts that Dr. James asserts in his expert report
leave "little room for doubt regarding the inappropriate nature
and poor hygiene which was utilized by [HSC] personnel in caring
for [Rodríguez]" -- such as the presence of "several organisms
throughout her various organ systems" and "worms and/or maggots"
in her nostril, the lack of "evidence of appropriate disinfection
of the hospital room, equipment, hospital staff, and the patient
herself," and the fact that Rodríguez's "fecal collector remained
out of place for more than 24 hours." - 29 - Nothing in Dr. James's report purports to opine,
however, that any of these hygiene-related failures caused
Rodríguez's decline or premature death. Nor is there any other
evidence in the summary judgment record that the plaintiffs
identify that would provide a basis on which a reasonable trier of
fact could find such causation. And that is true even if we take
account of the testimony of the defendants' own expert witnesses.
That being so, we do not see how the plaintiffs'
challenge to the District Court's ruling to exclude Dr. James's
testimony under Rule 702 provides any support for their challenge
to the grant of summary judgment to Quality Health/HSC insofar as
that challenge rests on a claim of negligence owing to HSC staff's
hygiene-related failures in their care for Rodríguez. After all,
the plaintiffs' claim of negligence is that the "premature death
of [Rodríguez] was caused by the negligent management of her
condition." Accordingly, even if we were to assume that there is
merit to the plaintiffs' challenge to the District Court's
exclusionary ruling under Rule 702 with respect to Dr. James's
testimony concerning the poor hygiene-related practices of HSC
staff, the plaintiffs' challenge to the grant of summary judgment
to Quality Health/HSC fails insofar as it rests on the allegation
that HSC staff's failures in that regard caused Rodríguez's decline
and premature death.
- 30 - B.
We turn, then, to the plaintiffs' remaining contention
as to their challenge to the grant of summary judgment to Quality
Health/HSC -- a contention that rests on the theory that HSC
staff's failure to properly manage Rodríguez's comorbidity of
diabetes led to her decline and premature death. Here, too, the
plaintiffs contend in part that the District Court erred in
excluding Dr. James's report under Rule 702. But, once again,
they also contend in the alternative that, even if that ruling was
sound, the grant of summary judgment was not because they could
have relied on other evidence in the record to prove this
allegation.
With respect to the plaintiffs' challenge to the Rule
702 ruling, Dr. James's report contains the opinion that "poor
management of [Rodríguez's] medical comorbidities, such as
inadequate care for her diabetes[,] likely exacerbated her
condition and accelerated her demise." With this assertion, Dr.
James clearly opines that HSC staff's management of Rodríguez's
diabetes was a cause of her premature death. And he also
characterizes that management as "poor" and "inadequate."
Nonetheless, the District Court determined that this
opinion must be excluded because "nowhere in the report does Dr.
James identify the standard of care that [HSC] staff should have
adhered to" in their management of Rodríguez's diabetes; "where - 31 - that standard comes from; and how the staff deviated from that
standard." We agree.
In the absence of both an articulated standard of care
and any specific allegations of acts or omissions by HSC staff
that deviated from that standard of care, we cannot see that Dr.
James's opinion that HSC staff's management of Rodríguez's
diabetes was "poor" and "inadequate" is "the product of reliable
principles and methods," as Rule 702 requires. Fed. R. Evid.
702(c). Thus, even if we were to assume that it was error for the
District Court to have excluded Dr. James's testimony that HSC
staff's treatment of Rodríguez's diabetes caused her decline and
premature death, we see no basis for concluding that it was error
to exclude the portion of Dr. James's opinion that pertains to
whether that treatment was improper.
This aspect of our assessment of the plaintiffs'
challenge to the District Court's Rule 702 exclusion ends up being
dispositive of their summary judgment challenge. That is because,
with Dr. James's opinion pertaining to a breach of the duty of
care excluded, there is nothing else in the summary judgment record
that could make up for it.
None of the defendants' expert witnesses opines that HSC
staff's management of Rodríguez's diabetes deviated from any
applicable standard of care. On the contrary, Quality Health/HSC's
proffered expert witness, internist Dr. Anibelle Altieri Ramirez, - 32 - opines in her expert report that "at all times relevant to the
[operative] Complaint, [HSC] personnel acted diligently,
prudently[,] and reasonably and did not incurred in [sic] negligent
acts." Thus, without the existence in the record of "expert
testimony to limn the minimum acceptable standard and confirm the
defendant doctor[s'] failure to meet it," Cortéz-Irizarry, 111
F.3d at 190, we affirm the District Court's determination that
Quality Health/HSC was entitled to summary judgment in its favor
on the plaintiffs' claim of medical malpractice.
IV.
For these reasons, the judgment of the District Court is
affirmed.
- 33 -