Ramos-Matos et al v. United States of America

Filing 48

OPINION AND ORDER denying 37 Plaintiffs' Motion to Strike. Signed by US Magistrate Judge Marcos E. Lopez on 11/21/2012. (GDR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ÁNGEL RAMOS-MATOS, et al.,
Plaintiffs,
v.

CIVIL NO.: 11-1522 (MEL)

UNITED STATES OF AMERICA,
Defendant

OPINION AND ORDER
On October 11, 2012, defendant United States of America (“defendant”) filed a motion in
limine to exclude the expert testimony introduced by plaintiffs Ángel Ramos-Matos and Marilyn
Ramos-Matos (“plaintiffs”) (D.E. 36). Pending before the court is plaintiffs’ motion to strike the
exhibit attached to defendant’s motion in limine, a sworn statement by Dr. Julio De Jesús-Gómez
(“Dr. De Jesús”) (“exhibit”) (D.E. 37).
Plaintiffs seek to strike defendant’s exhibit on the ground that Dr. De Jesús is not and
cannot be an expert in this case. Docket No. 37, ¶ 3. Defendant states that it was not including
Dr. De Jesús’s statement as expert testimony; rather, it was “a narration of his actions in treating
the patient, and the opinions he formed and relied on during the course of said examination and
treatment.” Docket No. 39, at 3.
The definition of “expert” under Rule 26 “does not encompass a percipient witness who
happens to be an expert,” such as a treating physician. Gómez v. Rivera Rodríguez, 344 F.3d
103, 113 (1st Cir. 2003); see also Downey v. Bob’s Disc. Furniture Holdings, Inc., 633 F.3d 1, 6
(1st Cir. 2011) (“Like a treating physician—and unlike a prototypical expert witness—[witness]
was not retained or specially employed for the purpose of offering expert opinion testimony.

Rather, he was an actor with regard to the occurrences from which the tapestry of the lawsuit was
woven.” (internal quotation omitted)). While the distinction between a treating physician’s
opinion and “one formulated by an expert hired in anticipation of testimony does not leap off the
page, a close reading of the text of Rule 26(a)(2)(B) convinces us that this is the precise
distinction that the drafters of the rule had in mind.” Id. at 7.
“[T]reating physicians are not bound by the expert report requirements of Rule 26 so long
as they limit their testimony to those opinions they formed and relied on during the course of
their examination and/or treatment of the patient.” González v. Executive Airlines, Inc., 236
F.R.D. 73, 79 (D.P.R. 2006). The statement offered by Dr. De Jesús focuses primarily on the
events between patient Luis Ramos Sandoval’s (“Sandoval” or “patient”) appointment on May
14, 2007, and his post-operative visit on December 7, 2007. Docket No. 36-1; Docket No. 1, at
3. Although Dr. De Jesús makes reference to a few scholarly sources, they are limited and
within the context of explaining his actions with respect to Sandoval. Furthermore, the only
purpose of defendant’s exhibit is to challenge an alleged factual assumption of plaintiffs’ expert
testimony, not to establish any opinion that requires scientific, technical, or other specialized
knowledge.1 Thus, Dr. De Jesús’s statement does not run afoul of Rule 26.
Plaintiff’s motion to strike defendant’s exhibit (D.E. 37) is DENIED. The exhibit will
not be stricken, but will only be considered to the extent that it aids the court in the disposition of
the motion in limine to exclude plaintiffs’ expert testimony (D.E. 36).

1

Because the statement was not made in trial and does not fall within an exclusion or exception, it is barred from
being entered into evidence. See FED. R. EVID. 802. Thus, the court will consider the exhibit only as it pertains to
the motion to which it is attached.

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IT IS SO ORDERED.
In San Juan, Puerto Rico, this 21st day of November, 2012.
s/Marcos E. López
U.S. Magistrate Judge

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