ORTIZ-OLIVERAS et al v. United States of America (Department of Veterans Affairs)

Filing 98

ORDER: Denied 89 MOTION in Limine as to Plaintiffs' Expert filed by Dr. Francis Zayas; Denied 92 MOTION in Limine To Exclude Plaintiffs' Expert Witness Medical Literature filed by Dr. Francis Zayas; Granted 93 MOTION in Limine to excl ude Third Party Plaintiff Veteran's Administration Expert Witness' Testimony as to the Alleged Breach of the Standard of care by Dr. Francis zayas Under FRCP 26(a)(2) and FRCP 26(e)(2) MOTION in Limine to exclude Third Party Plaintiff Veter an's Administration Expert Witness' Testimony as to the Alleged Breach of the Standard of care by Dr. Francis zayas Under FRCP 26(a)(2) and FRCP 26(e)(2) filed by Dr. Francis Zayas. Signed by US Magistrate Judge Camille L. Velez-Rive on 8/29/12.(ljt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MYRIAM C. ORTÍZ-OLIVERAS, et al,
Plaintiffs,
v.
CIVIL NO. 09-2210 (CVR)
UNITED STATES OF AMERICA,
Defendant.

ORDER
Third-party defendant Dr. Francis Zayas filed a “Motion in Limine to Exclude
Plaintiff’s Expert Witness’ Testimony as to the Alleged Breach of the Standard of Care by
Dr. Francis Zayas under FRCP14(A)(1) and (3) Lopez v. Dr. Cañizares, 163 D.P.R. (2004)
and Gaydar v. Instituto, 345 F.3d 15 (1st Cir. 2003) and Memorandum of Law in Support
Thereof” (Docket No. 89) to exclude plaintiff’s expert testimony, Dr. Nilda Hernández
Almenas, on grounds that: (1) plaintiffs’ expert is not a gastroenterologist but an
infectologist; and (2) plaintiffs did not amend the complaint to bring claim as to this thirdparty defendant who was brought into the lawsuit by defendant the United States of
America, Veterans’ Administration. (Docket No. 89). Third-party co-defendant Yauco
Health Care Corp. d/b/a Hospital Metropolitano Dr. Tito Matei then filed a motion for
joinder of above mentioned motion in limine. (Docket No. 95). The joinder was granted.
(Docket No. 96).
Third-party defendant Dr. Zayas also filed a “Motion in Limine to Exclude Plaintiffs’
Expert Witness Medical Literature” (Docket No. 92) which the United States sought to join.
(Docket No. 94). The joinder was granted. (Docket No. 97).

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Finally, third-party defendant Dr. Zayas filed a third motion in limine, to wit,
“Motion in Limine to Exclude Third Party Plaintiffs Veteran’s Administration’s Expert
Witness Testimony as to the Alleged Bridge of the Standard of Care by Dr. Francis Zayas
Under FRCP 26(a)(2)(B) and 26(e)(2).” (Docket No. 93).
Due to the proximity of the trial, we briefly rule on these motions in limine herein
below without having the benefit of any oppositions.
LEGAL ANALYSIS
I.

“Motion in Limine to Exclude Plaintiff’s Expert Witness’ Testimony as
to the Alleged Breach of the Standard of Care by Dr. Francis Zayas under
FRCP14(A)(1) and (3) Lopez v. Dr. Cañizares, 163 D.P.R. (2004) and
Gaydar v. Instituto, 345 F.3d 15 (1st Cir. 2003) and Memorandum of Law
in Support Thereof.” (Docket No. 89).
Third-party defendant Dr. Zayas seeks to exclude the testimony of plaintiffs’ expert

witness, Dr. Nilda Hernández Almenas, for she has no speciality in the field of
gastroenterology. Plaintiffs’ expert witness Dr. Hernández Almenas is an infectologist. To
support this contention reference is made to Puerto Rico Supreme Court case López v. Dr.
Cañizares, 163 D.P.R. 119 (2004) and Gaydar v. Instituto, 345 F.3 15 (1st Cir. 2003).1
Notwithstanding third-party defendant’s averment, no specialty field is required for
an expert witness. A proffered expert physician need not be a specialist in a particular
medical discipline to render expert testimony relating to that discipline. The fact that the
physician is not a specialist in the field in which he is giving his opinion affects not the
1

In fact, in Gaydar the Court of Appeals for the First Circuit found no abuse of discretion allowing expert
testimony of a general practitioner, not a physician in the filed of gynecology or obstetrics which was the main issue in
the malpractice case; “[t]he proffered expert physician need not be a specialist in a particular medical discipline to render
expert testimony relating to that discipline.” Gaydar, 345 F.3d at 24.

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admissibility of his opinion but the weight the jury may place on it. See Fed.Rules Evid.Rule
702; Pages-Ramírez v. Ramírez-González, 605 F.3d 109 (1st Cir. 2010); Payton v. Abbott
Labs, 780 F.2d 147 (1st Cir. 1985); Alvarado v. Weinberger, 511 F.2d 1046, 1049 (1st Cir.
1975). See also Mitchell v. United States, 141 F.3d 8 (1st Cir. 1998) (expert witness, who was
internist with specialties in hematology and oncology, was qualified to testify as to
physicians' treatment of colonoscopy patient on anticoagulant therapy in wrongful death
action, even though expert was not specialist in gastroenterology, for the fact remains that
gastroenterologists cannot close their eyes to the standard of care appropriate to other
specialties when performing procedures within their own that impact upon other
specialties). See also A. S. Klein, Competency of general practitioner to testify as expert
witness in action against specialist for medical malpractice, 31 ALR3d 1163.
Third-party defendant Dr. Zayas also seeks to exclude plaintiffs’ expert witness Dr.
Hernández Almenas for plaintiffs did not bring suit against said third-party defendant Dr.
Zayas by amending the complaint under Fed.R.Civ.P. 14(a)(1) and (3) after defendant
United States filed against Dr. Zayas as third-party defendant.
A plaintiff is not required to bring a claim against the third-party defendant by an
amendment under Fed.R.Civ.P. 14 in the present case. In fact, the notes to the rule state
that it has been held that under Rule 14(a) a plaintiff need not amend his/her complaint to
state a claim against such third party if he does not wish to do so.2
2

The weight of authority is to the effect that a defendant cannot compel a plaintiff, who has sued him, to sue also
a third party whom he does not wish to sue, by tendering in a third party complaint the third party as an additional
defendant directly liable to the plaintiff. Bringing such an amendment as to a third-party defendant plaintiff did not
originally sue would not cure defects in lack of jurisdiction, diversity problems or the claim being time barred between
plaintiff and the third-party defendant. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 367-68, 98 S.Ct.

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More so, had plaintiffs initially brought into the lawsuit as a direct defendant a
contracting party of the United States (Veterans’ Administration) such as Dr. Zayas, the
United States would have sought dismissal for the physician would be covered by immunity
from suit and the proper party would be the United States.
Still more, an amended claim as to said third-party defendant would not resolve the
issue the original complaint was filed more than one-year from the alleged malpractice
claim. Although Rule 14(a)(3) delineates the circumstances in which a plaintiff may assert
claims against a newly added third-party defendant, it has nothing to say about whether
such third-party claims would be considered timely. See D'Onofrio Constr. Co. v. Recon Co.,
255 F.2d 904, 910 (1st Cir. 1958) (noting that “Rule 14 does not purport to deal with the
statute of limitations”); 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice & Procedure § 1459 (3d ed. 2010) (“The fact that [a] third party has been brought
into the action does not revive any claims the original plaintiff may have had against the
third party that should have been asserted earlier but have become unenforceable.”). See
Coons v. Industrial Knife Co., Inc., 620 F.3d 38 (1st Cir. 2010).
Moreover, in any case where a plaintiff could not have joined the third party
originally because of jurisdictional limitations such as lack of diversity of citizenship, the
2396 (1978) (finding no basis for federal jurisdiction over the plaintiff's claim against the non-diverse party when an
amended complaint was filed against a third-party defendant). In Owen, plaintiff amended her complaint to bring a statelaw claim against a non-diverse third-party defendant who had been impleaded by the original defendant pursuant to
Fed.R.Civ.P. 14(a). The Highest Court ruled there was no basis for jurisdiction for the amended complaint under R. 14(a)
did not cure the fact of lack of diversity jurisdiction; see also American Fiber & Finishing, Inc. v. Tyco Healthcare Group
LP., 362 F.3d 136 (1st Cir. 2004) (plaintiff amended complaint by adding or substituting a defendant would not grant
federal jurisdiction even if present in the original complaint for just as a federal court cannot expand its jurisdictional
horizon, parties cannot confer subject matter jurisdiction on a federal court “by indolence, oversight, acquiescence, or
consent.”

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majority view is that any attempt by the plaintiff to amend his complaint and assert a claim
against the impleaded third party would be unavailing. Notwithstanding, that the action
against third-party defendant by plaintiff in main action would be barred by the statute of
limitations does not preclude maintenance of third-party action for contribution from thirdparty defendant, such as the United States, third-party plaintiff against Dr. Zayas as an
alleged joint tort-feasor.3
Thus, the third-party defendant Dr. Zayas’ Motion in Limine to exclude plaintiff’s
expert witness Dr. Nilda Hernández Almenas is DENIED. (Docket No. 89). The same
ruling applies to the third party co-defendant Yauco Health Care Corp. d/b/a/ Hospital
Metropolitano’s joinder on the issue herein raised. (Docket No. 95).
II.

“Motion in Limine to Exclude Plaintiffs’ Expert Witness Medical
Literature.” (Docket No. 92).
Third-party defendant Dr. Zayas filed a second motion in limine titled “Motion in

Limine to Exclude Plaintiff’s Expert Witness’ Medical Literature” to exclude publications
by plaintiffs’ expert, Dr. Nilda Hernández Almenas. (Docket No. 92). As grounds, thirdparty defendant refers the proposed articles do not relate to the standard of care for medical
treatment by December 2004 when the events dealing with malpractice complaint occurred
in the instant case.

3

The parties have not argued ancillary claims being available for federal jurisdiction and we need not split hairs
on said theories. Still, sometimes federal courts are permitted to entertain a claim or an incidental proceeding (not a case
itself) that does not satisfy requirements of an independent basis of subject matter jurisdiction. Accordingly, by whatever
name—ancillary, pendent, or supplemental—this form of jurisdiction cannot bring a case into federal court. Doing so can
be justified only if that additional claim or related proceeding is so closely related to a case properly in federal court as to
justify the conclusion that they are all part of a single case or controversy. 13 Fed. Prac. & Proc. Juris. § 3523 (3d ed.)

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A physician is held to the standard of care and skill of the average practitioner of the
medical specialty in question, taking into account the advances of the medical profession
at time of alleged negligent act. See Heinrich v. Sweet, 308 F.3d 48 (1st Cir. 2002); Mitchell
v. United States, 141 F.3d at 13. Publications were not considered relevant for expert’s
testimony when the publications became available only after treatments had been
undertaken and was not on information that was available to neurosurgeon when he
conducted treatments. Thus, Heinrich held expert's opinions resting on said particular data
or publications would not support the expert witness’ conclusions.
Third-party defendant Dr. Zayas refers to some of the publications not covering the
particular time of December 2004 when the alleged malpractice took place. However, of
the literature at issue, one deals with the year 2002, Elsen, On the Management of Anticoagulation, which is two (2) years from the date of the events. Another covers the time
from 1965 through 2010. If relevant, none of these two (2) publications need to be excluded
at this juncture, for there is no need to pin point the standard of care precisely to particular
month and year insofar as December 2004, but rather to a time reference that is relevant
to the events and to any significant developments in the medicine field that could be related
to such time frame. Only if there is simply too great an analytical gap between the data and
the opinion proffered, an expert's testimony or publication should be excluded.
Insofar as the third publication mentioned at first glance same was published in
2007, for which it was not available within the reasonable time frame of the events in
December of 2004 leading to this malpractice claim. Nonetheless, the Court has no

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knowledge if the 2007 publication is a compilation, refers to a continuous and prevalent
practice in the medicine field which is still valid or is mere a re-publishing. (Docket No. 921, p. 8). Thus, co-defendant Dr. Zayas has not placed the Court in a position at this time to
make a ruling as to this specific publication.
Finally, reference is made by third-party defendant Dr. Zayas to some other assorted
publications without any particularity and of another publication which is considered a
repetition of one of the first three particularly objected by third-party defendant. If
presented, a separate ruling as to such specific literature consonant with the above
discussed, will be issued.
Defendant United States (Veterans’ Administration) joined Dr. Zayas to exclude
publications of plaintiff’s expert witness Dr. Hernández Almenas. (Docket Nos. 94 and 97).
In view of the above, co-defendant Dr. Zayas “Motion in Limine to Exclude
Plaintiff’s Expert Witness’ Medical Literature” (Docket No. 92) is DENIED without
prejudice. The same ruling applies to the United States joinder. (Docket No. 94).
III.

“Motion in Limine to Exclude Third Party Plaintiffs Veteran’s
Administration’s Expert Witness Testimony as to the Alleged Bridge of
the Standard of Care by Dr. Francis Zayas Under FRCP 26(a)(2)(B) and
26(e)(2)”. (Docket No. 93).
Third party defendant Dr. Zayas filed a third in limine motion to exclude expert

witness opinion of defendant/third-party plaintiff United States’ (Veterans’ Administration)
Dr. Juan A. Rosado Matos against Dr. Zayas. (Docket No. 93). Dr. Zayas submits Dr.
Rosado Matos, the proposed United States’ expert witness, indicated in his report being
unable to testify as to the breach of standard of care by Dr. Zayas. A promised amended

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report on the issue was never submitted. Thus, the record is clear that Dr. Rosado Matos
indicated that, except for the initial report that was prepared and notified, he has no
opinion on Dr. Zayas’ intervention and possible/probable/definite relation to the patient’s
demise. More so, no additional report was prepared and notified to third-party defendant
Dr. Zayas notwithstanding that interrogatories were sent back in September 2011 and that
defendant indicated back then a final report was to be prepared in November of 2011. Such
discovery was never provided and third-party defendant Dr. Zayas never received a
supplemental or amended report in regards to the malpractice allegation. However, the
United States proffered for the first time in the recently filed Joint Proposed Pre-Trial
Memorandum (Docket No. 87) that Dr. Rosado Matos will testify, among other things, as
to the breach of the standard of care by Dr. Zayas.
Precluding the expert witness’ testimony on the issue may significantly hinder
defendant’s position insofar as the allegations of malpractice by Dr. Zayas. Said preclusion
of evidence is not applied as a strictly mechanical exercise for district courts have some
discretion in deciding whether or not to impose that onerous sanction. Santiago-Díaz v.
Laboratorio Clínico y de Referencia del Este and Sara López, M.D., 456 F.3d 272, 276-77 (1st
Cir. 2006); see, e.g., Jackson v. Harvard Univ., 900 F.2d 464, 468-69 (1st Cir.1990). In
passing upon a district court's decision to order preclusion, an appellate court considers an
array of factors, including “the history of the litigation, the proponent's need for the
challenged evidence, the justification (if any) for the late disclosure, and the opponent's
ability to overcome its adverse effects.” Macaulay v. Anas, 321 F.3d 45, 51 (1st Cir. 2005).

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However, the record is clear there has been a violation of discovery rules and lack of
timely production of expert witness’ report on the issue by defendant United States
(Veterans’ Administration) as to this expert witness report insofar as third-party defendant
Dr. Zayas. Defendant United States totally failed to provide third-party defendant Dr. Zayas
a written expert report satisfying the requirements of Fed.R.Civ.P. 26(a)(2)(B), and (3)
regarding Dr. Rosado Matos’ findings or opinion as to any malpractice by Dr. Zayas. See
Gay v. Stonebridge Life Ins. Co., 660 F.3d 58 (1st Cir. 2011) (a party seeking to introduce
expert testimony at trial must disclose to the opposing party a written report that includes
a complete statement of all opinions the witness will express and the basis and reasons for
them. Failure to comply with that rule may preclude the party from, “us[ing] that witness
or relevant expert information to supply evidence on a motion, at a hearing, or at trial,
unless the failure was substantially justified or is harmless). See also Peña-Crespo v. Puerto
Rico, 408 F.3d 10 (1st Cir. 2005) (expert report submitted must comply with the
requirements of Fed.R.Civ.P. 26).4

4

The expert witness did not prepare or submit a written report meeting the requirements of Rule 26(a)(2)(B).
Although having submitted, at various times throughout discovery, a series of documents, such disclosures did not satisfy
Rule 26(a) which requires: complete statement of all opinions to be expressed and the basis and reasons therefor; the data
or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or
support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within
the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which
the witness has testified as an expert at trial or by deposition within the preceding four years. Id.; see also Prieto v. Malgor,
361 F.3d 1313, 1317–18 (11th Cir.2004) (noting submitting the expert witness' name is not enough and that each witness
must provide a written report containing the information required under Rule 26). A party who fails to disclose the
necessary information under Rule 26(a), without substantial justification, is not permitted to present the witness'
testimony at trial. Fed.R.Civ.P. 37(c)(1). See Peña Crespo, 408 F.3d 13-14.

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Insofar as to any testimony regarding an opinion that any malpractice present in the
case is related or was caused by third- party defendant Dr. Zayas, the in limine request to
exclude Dr. Rosado Matos’ testimony is GRANTED.5
CONCLUSION
In view of the foregoing, the Court rules as follows:
(1) Docket Nos. 89 and 95 are DENIED.
(2) Docket Nos. 92 and 94 are DENIED, without prejudice.
(3) Docket No. 93 is GRANTED, insofar as to any testimony regarding an opinion
that any malpractice present in the case is related or was caused by third- party defendant
Dr. Francis Zayas.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 29th day of August of 2012.

5

We note that the in limine request is only addressed to Dr. Rosado Matos’ testimony against Dr. Zayas and not
as to defendant’s expert witness as to plaintiff’s malpractice claim against the United States. As such, as to any testimony
based on the expert’s report already submitted and disclosed, any in limine request as to Dr. Rosado Matos’ testimony
would be denied.