Nazario-Sanchez v. Hospicio La Paz et al

Filing 108

OPINION AND ORDER regarding 77 Motion to Strike; 78 Motion in Limine; 79 Motion for Non Resident Bond; 80 Motion in Limine to Strike; 90 Motion requesting Order; 95 Motion to Strike. Signed by US Magistrate Judge Marcos E. Lopez on 9/30/16. (Lopez, Marcos)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

JULIO JUÁN NAZARIO SÁNCHEZ,
Plaintiff,
v.

CIVIL NO.: 14-1072 (JAG)

HOSPICIO LA PAZ, ET AL.,
Defendants.

OPINION AND ORDER
I.

PROCEDURAL BACKGROUND
On January 27, 2014, Julio Juán Nazario Sánchez (“Nazario” or “plaintiff”) filed

suit against Hospicio La Paz (“Hospicio”) and Corporación de Servicios Geriátricos de
Yauco (“Corporación”) doing business as Hogar D’Amor for alleged negligence in the
care of his father, Julio Enrique Nazario Ramírez (“Nazario Ramírez”). 1 ECF No. 1. At a
status conference held on May 8, 2015, deadlines were recommended for the progress of
the case. ECF No. 44. The deadline for plaintiff to produce expert reports and make all
expert witness disclosures pursuant to Fed. R. Civ. P. 26 was set for July 30, 2015. Id. at
3. All discovery was to conclude on October 31, 2015. Id. at 4. These deadlines were all
adopted by the presiding United States District Judge Jay García Gregory on May 26,
2015. The court further ordered that “Plaintiff is limited to using a nurse as an expert
witness.” ECF No. 51.

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In the complaint his name is written as “Julio Enrique Ramírez.” ECF No. 1, at 2. In later filings,
including those at issue here, is name is written “Julio Enrique Nazario Ramírez.” ECF Nos. 82, at 1; 84, at
1; 89, at 2.

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On October 15, 2015, Hospicio was voluntarily dismissed and partial judgment
was entered. ECF Nos. 57; 58. A second status conference was held on December 22,
2015. ECF No. 75. There it was informed that plaintiff produced an amended expert
report for the nurse, Waleska Figueroa Renta (“Figueroa”) on October 14, 2015, beyond
the deadline set by the court. ECF No. 75, at 1. The court ordered the amended expert
report stricken and limited the expert’s testimony at trial to the matters stated in her first
expert report. ECF No. 75, at 1. The parties then informed that the first expert report
provided was in the English language. The original report, however, was written in the
Spanish language. Plaintiff was granted until December 31, 2015 to provide a copy of the
original Spanish report to defense counsel. ECF No. 75, at 2.
Currently pending before the court are various pretrial motions. On February 18,
2016, Corporación filed a motion to strike plaintiff’s expert for non-compliance with Fed.
R. Civ. P. 26(b)(1)(B) . ECF No. 77. On the same day, February 18, 2016, Corporación
filed a motion in limine to limit plaintiffs’ expert witness testimony to the contents of her
deposition. ECF. No. 78. The following day, on February 19, 2016, Corporación filed a
motion for a non-resident bond against plaintiff pursuant to Puerto Rico law. ECF No. 79.
On February 20, 2016, Corporación filed a second motion in limine to exclude plaintiff’s
expert witness’s testimony under Daubert. ECF No. 80.
Nearly a month later, on March 18, 2016, Corporación moved for an order to
compel the production of the original Spanish version of Figueroa’s expert report. ECF
No. 90. Plaintiff, in turn, filed on March 21, 2016 a motion to strike Corporación’s
witnesses and documents for failure to timely disclose the same. ECF No. 95.

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II.

DAUBERT MOTION
Corporación’s motion in limine to exclude plaintiff’s expert witness under

Daubert was filed on February 20, 2016. ECF No. 80. In his response in opposition,
plaintiff requests Corporación’s motion be denied as untimely filed. The deadline to file
motions in limine or to strike expert witnesses was February 19, 2016. Corporación filed
two related motions in a timely manner. ECF Nos. 77–78. Corporación was neither
granted an extension of the deadline nor did it explain the failure to comply with the
deadlines set by the court.
Due to the nature of the allegations it is nevertheless necessary to briefly discuss
one aspect of the motion. Corporación highlights testimony from Figueroa’s deposition
on July 16, 2015. During the deposition, Figueroa became aware that the records she had
reviewed prior to rendering her first expert report were not the complete medical file of
Nazario Ramírez. Defense counsel then inquired whether she was “in a position today, to
render a final opinion in the case, without having the benefit of reviewing those records
that you now know that exist?” ECF No. 80-1, at 38:5–8. Figueroa responded, “I have to
review everything in its totality in order to be objective and to render an opinion in this
case.” Id., at 38:9–11. Defense counsel followed up with, “So your answer is no, you
cannot render a complete or a final opinion, until you review the whole records, the
totality of the records?” Id., at 38:12–15. Figueroa then conceded, “That’s true.” Id., at
38:16. Plaintiff, in his response in opposition, clarifies that Figueroa’s opinion was
“based on two years of medical records pertaining [to] Mr. Nazario Ramírez’[s] case
while under the supervision of Hogar D’Amor (Codefendant) and Hospicio La Paz, up
until he was transferred to Hospital Tito Mattei and unfortunately passed away.” ECF No.

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84, ¶ 5. Defendant does not identify with any specificity under what authority it believes
this requires the expert’s testimony be entirely stricken. Rather, plaintiff informs in his
response that portions of Corporación’s motion are copied verbatim from Wikipedia.
ECF Nos. 84; 84-1. The Wikipedia entry is attached as Exhibit A to their response. ECF
No. 84-1. Corporación’s motion contains almost two full pages of text copied verbatim
from this entry. The copied text purports to explain the legal standards established under
Daubert v. Merrel Dow Pharmaceuticals, 509 U.S. 579 (1993) and Federal Rule of
Evidence 702. These are the very legal standards under which Corporación is moving.
This constitutes the entirety of Corporación’s legal argument. It does not cite any
additional caselaw, secondary sources, or reliable legal publication to support its analysis
in this motion. This is unacceptable. Wikipedia is not a reliable source for legal caselaw
and analysis. As an ancillary problem, it is not acceptable for parties to verbatim
appropriate the analysis of a source without any attribution. Without a citation to a
reliable source, the court is not placed in a position to properly evaluate the assertions
therein.
Courts have previously held that under certain circumstances expert opinions
based on incomplete review of the records may be admissible under Daubert. “As long as
an expert’s scientific testimony rests upon ‘good grounds, based on what is known,’ it
should be tested by the adversary process—competing expert testimony and active crossexamination—rather than excluded from jurors’ scrutiny for fear that they will not grasp
its complexities or satisfactorily weight its inadequacies.’” Ruiz-Troche v. Pepsi Cola of
Puerto Rico Bottling Co., 161 F.9d 77, 85 (1st Cir. 1998). Taking this standard into
account, an expert basing his findings on incomplete records, “go[es] to the weight of the

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testimony and not to the Daubert exclusion of the same.’” Wetherell v. Hospital
Interamericano De Medicina Avanzada, Civil No. 06-2079, 2009 WL 564200, *3 (SEC)
(D.P.R. March 5, 2009). 2 Similarly, the First Circuit has upheld the admissibility of
expert testimony where although “the factual bases for some of [the] expert opinions as to
cause of injury were incomplete, he did not base his opinions on pure conjecture.”
Coleman v. De Minico, 730 F.2d 42, 45 (1st Cir. 1984). “When the factual underpinning
of an expert opinion is weak, it is a matter affecting the weight and credibility of the
testimony—a question to be resolved by the jury.” Newell P.R., Ltd. v. Rubbermaid Inc.,
20 F.3d 15, 21 (1st Cir. 1992).
Defendant has not elaborated on how the expert’s failure to review some records
invalidates her opinion with respect to those records she has reviewed. Nor has defendant
placed the court in a position to conclude that the failure to review the entire medical
record so greatly undermines any conclusions the expert drew from the partial records,
that the expert should be stricken under Daubert because her opinion is based on pure
conjecture. Additionally, “Rule 702 has been interpreted liberally in favor of the
admission of expert testimony.” Levin v. Dalva Brothers, Inc., 459 F.3d 68, 78 (1st Cir.
2006). Figueroa will therefore be allowed to testify as to the matters contained in her first
expert report and the motion in limine (ECF No. 80) is DENIED.
III.

PRODUCTION OF THE ORIGINAL VERSION OF THE FIRST EXPERT REPORT
On March 18, 2016, Corporación filed a motion requesting “the production of a

copy of the original expert witness [report] in Spanish.” ECF No. 90, 3. The deadline to
oppose this motion was April 4, 2016. Over five months later no response in opposition
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There the court also highlighted the “importance of expert testimony in medical malpractice cases, more
so for the Plaintiff, who bears the burden of showing that the treating [provider] acted negligently.” Id.

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has been filed. Corporación alleges in this motion that plaintiff has not provided the
original Spanish version of Figueroa’s report, despite being ordered to do so. ECF Nos.
90, at 1; 75, at 2. Corporación acknowledges that plaintiff has informed that the Spanish
version could not be located, but highlights that “[t]here are seven (7) places were [sic]
the original and/or a copy of the original report in Spanish should be available; the four
(4) plaintiff’s counsels (Vivas, Fernandez, Alvarez, Medina), Plaintiff, Ms. Figueroa,
[and] Ms. Figueroa’s brother.” ECF No. 90, at 3.
Corporación’s renewed motion requesting the original report in Spanish is
NOTED. This is not the first time that the court has addressed this issue. See ECF No. 75.
If the English translation of Figueroa’s first expert report produced to defendants is not a
certified translation made by a professional interpreter, and plaintiff has not complied
with the court’s order to produce the original version of the report in Spanish,
Corporación may request at trial that an instruction be given to the jury to the effect that
they may draw an inference that had the original report in Spanish been produced, it
would have shown evidence unfavorable to plaintiff’s case.
IV.

NON-RESIDENT BOND
Corporación is requesting a “non-resident bond to be established under the

provisions of State Law Rule 69.5 . . . .” ECF No. 79. “[A] federal court sitting in
diversity or exercising supplemental jurisdiction over state law claims must apply state
substantive law, but a federal court applies federal rules of procedure to its proceedings.”
Hoyos v. Telecorp Commc'ns, Inc., 488 F.3d 1, 5 (1st Cir. 2007). Thus, Puerto Rico rules
of civil procedure do not govern this proceeding. Neither the Federal Rules of Civil
Procedure nor the current version of the Local Rules of Civil Procedure provide for the

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imposition of a non-resident bond. Therefore, Corporación’s motion requesting nonresident bond (ECF No. 79) is DENIED.
V.

LIMITING THE SCOPE OF FIGUEROA’S TESTIMONY
In the motion in limine filed on February 18, 2016, Corporación requests that

Figueroa’s testimony be limited to the contents of the deposition referenced above. ECF
No. 78. According to Corporación, allowing Figueroa to present testimony outside her
deposition “would have a clear effect of setting aside a trial date for which all parties
have been prepared for and create new allegations of wrongdoing regarding co-defendant
Corporación . . . .” ECF No. 78, at 2. To advance this argument, Corporación highlights
again the testimony that Figueroa did not review the entirety of the record.
This is understandably significant testimony for Corporación, but it does not
amount to “new allegations of wrongdoing.” Figueroa’s testimony has already been
limited to the contents of her first expert report that was produced on June 4, 2015. ECF
No. 75, at 1. The untimely produced supplement was stricken, and thus cannot be used at
trial. Id. Defendant has not, however, articulated why Figueroa should not be allowed to
testify regarding the contents of this first report. Subject to the Federal Rules of Evidence,
Corporación is entitled to use Figueroa’s deposition responses for the purpose of
impeachment at trial. Furthermore, expert testimony should not be limited to the contents
of the deposition, which is limited in scope to what counsel chose to ask, but rather
should be confined to the findings and opinion contained in Figueroa’s first expert report.
Therefore, Corporación’s motion in limine to limit Figueroa’s testimony to the contents
of her deposition is DENIED.

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VI.

CURRICULUM VITAE
Corporación requests that plaintiff’s expert be stricken for failure to produce a

curriculum vitae (“CV”) as required by Federal Rule of Civil Procedure 26. ECF No. 77.
A second motion in support of this motion was filed by Corporación on March 22, 2016.
ECF No. 96. In the response in opposition, plaintiff states that the CV was produced on
June 4, 2015. ECF No. 81, at 1. Further, plaintiff asserts that defense counsel used the CV
to question Figueroa at her deposition.
Indeed, defense counsel posed the following to Figueroa at her deposition on July
16, 2015:
In order to expedite matters I’m going to show you a curriculum vitae that
was given to us recently by Mr. Medina. I’m not going to make it part of
the record. I just want you to look at it and tell me if it’s up to date or if
there are any changes, amendments to it.
ECF No. 81-2, at 24:17–22. 3 Figueroa responded that she is “now ‘ad honorem’ at the
clinics in the Medical Sciences Campus with Dr. Lojo and Dr. Ester Torres, who is the
gastroenterologist for patients who have ostomies and wounds. And I also visit patients.”
ECF No. 81-2, at 24:23–25, 25:1–3. It is not expressly stated in counsel’s question that
the CV shown to Figueroa was her own. It is reasonable to conclude, however, the CV
was Figueroa’s for two reasons. First, counsel prefaced the interaction by informing
Figueroa that he was going to “pose some questions regarding your work
experience . . . .” ECF No. 81-2, at 24:7–8. Second, Figueroa then provided updates to the
document she was shown based on her current work situation.

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This document contains two independent paginations. The first is the original pagination that corresponds
to the complete deposition transcript. The second is the pagination inserted by the CM/ECF docketing
system. For the purposes of clarity of the record and consistency with the parties’ citations, all page
references are to the original deposition pagination. The same method of citation will be employed with
respect to all citations to deposition transcripts herein.

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It is also not immediately apparent from the portion of deposition transcript
provided whether counsel for Corporación or counsel for Hospicio was actually asking
the questions. Plaintiff asserts it was counsel for Corporación. ECF No. 81, at 1–2. It is
evident that, regardless of which counsel posed the question, both counsel were present in
the deposition. See ECF No. 81-2, at 26. Therefore, as of July 16, 2015, Corporación
either had access to or was aware of the existence of the CV. Yet Corporación waited
until February 18, 2016 to raise this issue.
This request is therefore untimely. The conclusion of all discovery was October
31, 2015. Corporación did not file a motion to compel prior to this deadline elapsing. The
motion to strike Figueroa based on failure to provide a CV, as well as its follow-up
motion (ECF Nos. 77, 96), are DENIED. Nevertheless, as producing again a CV is not an
onerous burden to place on plaintiff’s counsel, plaintiff shall provide a courtesy second
copy to Corporación by October 7, 2016.
VII.

PLAINTIFF’S MOTION TO STRIKE WITNESSES AND DOCUMENTS

“Unless within fourteen (14) days after the service of a motion the opposing party
filed a written objection to the motion, incorporating a memorandum of law, the opposing
party shall be deemed to have waived objection.” Local R. Civ. P. 7(a). Pursuant to this
rule, unless it would clearly offend equity, failure to timely oppose a motion can result in
the motion being summarily granted as unopposed. Rodríguez-Salgado v. SomozaColombani, 937 F.Supp.2d 206, 210–11 (D.P.R. 2013).
Plaintiff’s motion filed on March 21, 2016 remains unopposed. ECF No. 95. The
deadline to oppose elapsed on April 7, 2016, and no such response in opposition has yet
been filed. Plaintiff requests the court to strike untimely announced witnesses and

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documents for failure to comply with the Federal Rules of Civil Procedure. According to
plaintiff, Corporación never disclosed during initial disclosures or through a supplement
to the same the names of the following witnesses that they intend to use at trial: Mario
Alicea Vargas, Israel Nazario, Julio C. Troche Camargo, José A. Casiano Malavé, Nelly
Moret Aquino, and Nancy Nazario. ECF No. 95, at 3. These witnesses were announced
by Corporación in the Joint Proposed Pretrial Order filed on March 16, 2016. According
to plaintiff, the first time Corporación disclosed that these individuals may be used to
support their claims or defenses was on March 15, 2016, when Corporación emailed its
portion of the joint order. ECF No. 95, at 3.
Additionally, plaintiff asserts that Corporación first identified the following
evidence that it may use to support its claims or defenses on the same date: (1) the
records of Nazario Ramírez at Bank of America from 2005-2011, “at hospice at Orlando,
Florida,” “at hospitals and clinics at Orlando, Florida,” “at elderly home at Orlando,
Florida,” at the Internal Revenue Service of Florida and the United States Internal
Revenue Service, at the Social Security Administartion from 2005-2011, at “Social
Services/Food Stamp, 2005-2011,” at “Medicare, DHHS” from 2005-2011, at “Medicaid,
DHHS” from 2005-2011, at Hogar La Familia; (2) the records of plaintiff at The Tree
House Educational Center in Orlando, Florida as well as records for the Tree House
Educational Center with the Internal Revenue Services of both Florida and the United
States; and (3) the sales contract of Nazario Ramírez’s house “including any power of
attorney or supporting documents.” ECF Nos. 95, at 4; 89, at 27–28.
Pursuant to the mandatory initial disclosures provision of the Federal Rules of
Civil Procedure, litigants are obligated to provide without request “the name and, if

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known, the address and telephone number of each individual likely to have discoverable
information . . . that the disclosing party may use to support its claims or defense” as well
as “a copy—or a description by category and location—of all documents . . . that the
disclosing party has in its possession, custody, or control and my use to support its claims
or defenses . . . .” Fed. R. Civ. P. 26(a)(1)(A). Furthermore, once these dislosures have
been made, the party “must supplement or correct its disclosure or response . . . in a
timely manner if the party learns that in some material respect the disclosure or response
is incomplete or incorrect . . . .” Fed. R. Civ. P. 26(e)(1).
There are three possible scenarios apparent to the court regarding these
documents: (1) Corporación had these documents in its possession, custody, or control
from the outset of this case; (2) Corporación obtained these documents during the course
of litigation; or (3) Corporación has subpoenas pending for these documents that have yet
to be fulfilled. Under the first scenario, Corporación was required to include these
documents in their initial disclosures. Under the second scenario, Corporación was
required to supplement their initial disclosures in a timely manner. Under the third
scenario, Corporación should have requested an enlargement of the discovery period in
order to obtain these documents. Even this third scenario, under which Corporación does
not currently have the documents in its possession, custody, or control, Corporación
cannot be allowed to wait until the eve of trial to provide these documents to plaintiff.
Plaintiff is entitled to time to evaluate these materials. Should Corporación have felt these
documents would be critical to the presentation of their case in chief, any delay in the
receipt of these documents from subpoenaed entities should have been addressed during
the discovery period. Thus, taking plaintiff’s allegations as true, defendant failed to

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supplement its initial disclosures in a timely manner or to comply with the court’s
discovery deadlines. “If 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 . . . at trial, unless the failure was substantially justified or is
harmless.” Fed. R. Civ. P. 37(c)(1). Defendant’s failure to respond waived the right to
object that its failure to disclose was either justified or harmless. Therefore, plaintiff’s
motion to strike the above listed witnesses and documentary evidence is GRANTED.
Defendant is, however, still entitled to use these documents for the purposes of
impeachment, if applicable.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 30th day of September, 2016.
s/Marcos E. López
U.S. Magistrate Judge

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