In this аction filed pursuant to Puerto Rico’s medical malpractice law, Articles
I.
The plaintiffs brought this action against Mennonite General Hospital, two physicians, and several others, alleging that the defendants’ negligence caused the premature birth of their daughter and hеr death two days later, in violation of Puerto Rico law. They also alleged that the hospital violated EMTALA when it failed to follow its own established medical screening protocols in treating Hazel Cruz-Vázquez.
As part of their case in chief on both the EMTALA and Puerto Rico law claims, the plaintiffs proposed to introduce testimony from one expert witness, Dr. Carlos E. Ramírez. The plaintiffs disclosed their intention to call Dr. Ramirez at the scheduling conference held by the district court on June 27, 2008. In due course, they provided the defendants with a copy of the expert report prepared by Dr. Ramírez and with a version of his resume that was current through 2004. Dr. Ramirez was deposed by counsel for the defendants in November 2008.
A jury trial began on March 30, 2009. On the fourth day of trial, the plaintiffs called Dr. Ramirez to testify. In response to an oral motion by the defendants, however, the court conducted a
Daubert
inquiry outside the presence of the jury and ruled that Dr. Ramirez was not a qualified expert and would not be permitted to testify.
See Daubert v. Merrell Dow Pharm., Inc.,
The plaintiffs appeal. As we have addressed the relevant law on the admission of expert testimony at some length in our recent opinion in
Pagés-Ramírez v. Ramírez-González,
II.
To succeеd with a medical malpractice claim, a plaintiff must introduce evidence on causation and the standard of care in the relevant medical circumstances.
See id.
at 113 (listing elements of medical malpractice under Puerto Rico law). Almost invariably, a trier of fact will nеed expert testimony in order to determine the applicable standard of care and to make a judgment on the cause of the injury.
Id.
Similarly, expert testimony is generally required to assess certain elements of an EMTALA claim.
See, e.g., Ortiz-Lopez v. Sociedad Española de Auxilio Mutuo Y Beneficiencia de P.R.,
As we explained in
Pagés-Ramirez,
the judge’s task in determining whether to admit or exclude expert testimony is “to ensure that the expert’s testimony ‘both rests on a reliable foundation and is relevant to the task at hand.’ ”
A. Dr. Ramirez’s Medical Credentials
Dr. Ramirez received his medical degree in 1981 from the University of Puerto Rico, Medical Sciences Campus, and completed an internship in obstetrics and gynecology at the San Juan University Hospital in the Puerto Rico Medical Center in 1982. As a resident, from 1982 to 1985, he cared for approximately five hundred premature labor patients and thousands of non-premature labor pаtients. He became board certified in obstetrics and gynecology in 1987 and was re-certified in 1997. According to Dr. Ramirez, he is currently board qualified in those specialties, although his board certification has expired. As a part-time faculty member in the Department of Obstetrics and Gynеcology, his duties for a time included serving as an attending physician in charge of the labor room one day a week at the University of Puerto Rico Hospital. Dr. Ramirez served as a faculty member in gynecology and obstetrics for twenty-six years.
In 1985, while Dr. Ramirez was on the faculty at the Univеrsity of Puerto Rico Hospital, he and a partner established a private practice in general obstetrics and gynecology. After an interlude during which Dr. Ramirez focused in his private practice on pelvic surgery and gynecology while still treating obstetrics patients at thе hospital, he returned to focus on obstetrics in 1994. For approximately eight years he treated the full range of obstetrics patients at his practice.
In 2000, after being diagnosed with cancer, Dr. Ramirez left his private practice. For a time he continued to see pаtients at an oncologic hospital. In 2003, however, his cancer returned and he stopped seeing patients. Since that time, he has served as a consultant to a company owned by his wife that screens doctors seeking to provide care to Medicare pаtients through a health maintenance program. He has also begun lecturing and doing research on health law, medical malpractice, and EMTALA, among other medicine-related subjects. He has served as an expert witness in approximately 150 medical malpractice cases in the past ten years. At the
Daubert
hearing, he explained that his most
B. The Decision to Exclude Dr. Ramirez’s Testimony
1. The Court’s Reasoning
The district court excluded Dr. Ramirez’s testimony on the ground that Dr. Ramirez was biased in favor of plaintiffs in medical malpractice cases. 1 In support of its decision, the court described at length the danger of bias that, in the court’s view, inhered in Dr. Ramirez’s recent wоrk as a medical expert and consultant. The court wrote:
Dr. Ramirez has not been a practicing obstetrician, or physician in any specialty, during the past seven years. Instead, Dr. Ramirez informed the Court that he has been doing a variety of consulting work, including consulting as an expert witness in approximately 150 cases. Dr. Ramirez testified that during the past year, he has worked exclusively on cases in which he writes reports or gives testimony on behalf of plaintiffs. Dr. Ramírez has not acted as an expert on behalf of a defendant in a single ease during the past year. The Court finds that this track record indicates a bias in favor of Plaintiffs.
The court also highlighted the fact that “Dr. Ramírez has begun collaborating with the distinguished attorney for Plaintiffs in this case ... to give lectures regarding medical-malpractice and EMTALA.” The Court noted that those lectures were “for profit, thereby focusing [Dr. Ramirez’s] work further on assisting plaintiffs who seek to sue doctors and hospitals for various alleged violations of the law.” This too “indicate[d] to the Court that Dr. Ramirez is not an impartial witness” because “he has a significant stake in the successful outcomе of cases brought by alleged victims of medical malpractice.”
In a similar vein, the Court described its concern that, “[b]y withdrawing from practice and the corresponding supervision of the licensing board, Dr. Ramírez has set the stage for a line of work in which he need not provide imрartial diagnoses of patients.” The court concluded that such “lack of control casts serious doubt over the degree to which Dr. Ramirez’s testimony would be made in the manner to be expected of a responsible physician who is subject to oversight by a medical licеnsing board.”
2. The Court’s Error
The district court cited as the basis for excluding Dr. Ramirez’s testimony asрects of his work that are typically established through cross-examination of an expert witness at trial in an effort to discredit his or her testimony. The court’s reasoning had nothing to do with the scientific validity of the opinion that Dr. Ramirez proposed to offer or the principles that underlie it. Yet, the Supreme Court has emphasized that the “overarching subject” of the trial court’s inquiry when assessing proposed expert testimony “is the scientific validity — and thus the evidentiary relevance and reliability — of the principles that underlie a proposed submission.”
Daubert,
Assessing the potential bias of an expert witness, as distinguished from his or her specialized training or knowledge or the validity of the scientific underpinning for the expert’s opinion, is a task that is “properly left to the jury.”
United States v. Carbone,
Dr. Ramirez’s “specialized knowledge,” namely his medical training and experience in the field of obstetrics and gynecology and whether it would “assist the trier better to understand a fact in issue,”
Gaydar,
The judgment is therefore vacated and the case remanded for further proceedings consistent with this opinion. Costs are awarded to the appellants.
So ordered.
Notes
. The district court also found that the plaintiffs’ failure to provide a copy of Dr. Ramirez's fully up-to-date curriculum vitae was a violation of Rule 37(c)(1) of the Federal Rules of Civil Procedure and provided "a sufficient basis for the Court’s decision to exclude Dr. Ramirez's testimony.” This secondary justification for the exclusion of Dr. Ramirez’s testimony is unsupportable. As the district court correctly noted, Rule 37(c)(1) provides that a party who violates the rulе may not use undisclosed information at trial "unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). At oral argument, the defendants conceded that the plaintiffs’ production of Dr. Ramirez’s 2004 curriculum vitae, rather than his 2008 curriculum vitae, was not prejudicial to them. They acknowledged that any additional relevant information provided in the updated curriculum vitae, such as Dr. Ramirez’s activities since he left medical practice, was known to them. As the procedural rule itself makes clear, in the absence of harm to a party, a district court may not invoke the severe exclusionary penalty provided for by Rule 37(c)(1). This is especially so when, as was the case here, the exclusion would result in the dismissal of the plaintiffs’ case.
See Esposito v. Home Depot U.S.A., Inc.,