MELILUZ MARTÍNEZ; NOEL MARTÍNEZ; NOELIE MARTÍNEZ; JESHICA MARTÍNEZ, Plaintiffs, Appellants, v. UNITED STATES, Defendant, Appellee.
No. 20-1981
United States Court of Appeals For the First Circuit
April 29, 2022
Barron, Chief Judge, Thompson and Kayatta, Circuit Judges.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Raúl M. Arias-Marxuach, U.S. District Judge]
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.
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.
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
“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
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
A witness who is qualified as an expert by knowlеdge, 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.
“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 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.
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
C.
On February 11, 2019, the United States moved pursuant to
The United States’ motion to exclude Dr. Ortiz Fеliciano‘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
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
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
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
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
The District Court added that
The District Court also explained that Dr. Ortiz Feliciano‘s “report fails to identify the national standard of 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
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
The District Court granted the United States twenty-one days to file such a motion and vacated the sсheduled 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
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
We review the District Court‘s ruling to exclude Dr. Ortiz Feliciano‘s testimony based on
improper factors are assessed, but the court makes a serious mistake in weighing them.” Id. (quoting Fashion House, Inc. v. K mart Corp., 892 F.2d 1076, 1081 (1st Cir. 1989)).
A.
The District Court concluded that Dr. Ortiz Feliciano‘s testimony must be struck under
1.
The District Court ruled that the proffered testimony of Dr. Ortiz Feliciano would not “help thе trier of fact,”
We start with the District Court‘s latter conclusion, which, as we will explain, is not supported by the record. In 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 levеls 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
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 Vancomyсin 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
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” (еmphasis 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).
It is true that “Puerto Rico holds health care рrofessionals 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 levеls -- 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 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” govеrned 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
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.
Hospital should have done (“monitor[] for decrease in platelet levels” and “obtain[]” “further levels” of Vancomycin), and why (to avoid “[s]evere bleeding“).
Moreover,
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 medicаl records showed in a manner sufficient to make his testimony relevant to understanding whether Martínez-Marrero received negligent treatment.
The United States does advance one additional ground for affirming the ruling excluding Dr. Ortiz Feliciano‘s testimony pursuant to
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 exclude his testimony pursuant to
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
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 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
2.
The District Court separately ruled that Dr. Ortiz Feliciano‘s testimony was not admissible pursuant to
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.
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 suppоrt 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 Hospitаl‘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 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 tissuе.” 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,” 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,
“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
B.
We next consider the District Court‘s apparent decision to exclude Dr. Ortiz Feliciano‘s expert testimony based on
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
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
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
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
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 еxpert opinions. See
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
Thus, the exclusion of Dr. Ortiz Feliciano‘s expert testimony based on the plaintiffs’ failure to comply with
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.