Rivera-Marrero v. Presbyterian Community Hospital, Inc. et al
Filing
112
ORDER granting in part and denying in part 96 Motion in Limine. The Court DENIES Defendants' Motion in Limine as to testimony from Plaintiff's expert witness, regarding two deviations of standard of care regarding the operative technique used by Dr. Velazquez during the Cesarean Section and; GRANTS Defendants' Motion as to opinion testimony regarding lack of informed consent from Plaintiff. Consequently, Dr. Cohn cannot testify in any way about lack of informed consent during trial. See Fed. R. Civ. P. 26(e)(2). Signed by Judge Daniel R. Dominguez on 6/12/2017. (EA)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
Patric M. Rivera-Marrero,
Plaintiff,
Civil No. 14-1922 (DRD)
v.
Presbyterian Community Hospital, et al.,
Defendants.
OPINION AND ORDER
Pending before the Court is a Motion in Limine filed by Defendants Dr. Rebecca
Velázquez-Álvarez and Optimum Ob-Gyn, LLC (Docket No. 96), which was opposed by
Plaintiff (Docket No. 101) and replied by Defendants (Docket No. 104).
In synthesis, Defendants seek to limit Plaintiff’s expert witness, Dr. Howard Cohn
from expanding or making additional allegations or conclusions in his testimony other
than those contained on his expert report, the Complaint or Pre-Trial Order. See Docket
No. 96 p. 13. These are: (1) two new deviations from standards of care regarding the
operative technique used by Dr. Velázquez during the cesarean section performed on
Plaintiff and; (2) lack of informed consent from Plaintiff. See Docket No. 96 p. 4 ¶ 4.
For the reasons stated herein, the Court GRANTS in part, DENIES in part
Defendants’ Motion in limine (Docket No. 96).
I.
APPLICABLE LAW
A. Relevance in General
The Court begins by analyzing several basic principles that expound upon general
relevance under Fed. R. Evid. 401. First, evidence is “relevant” if it has a tendency “to
make a fact more or less probable than it would be without the evidence.” Joseph W.
Cotchett, Federal Courtroom Evidence § 401.2 (Mathew Bender, 5th Ed.) (citing Fed. R.
Evid. 401). Proffered evidence is not relevant if it does not prove or disprove a matter at
issue or does not “assist the trier of fact in determining [any] facts necessary to its
decision[.]”
Id.
Hence, evidence is relevant “if it makes it more probable that a
consequential fact is true.” Id. at § 401.3 (citing United States v. Mardirosian, 602 F.3d 1,
11 (1st Cir. 2010), cert. denied, 131 S.Ct. 287 (2010)). Proffered evidence is also “relevant if
it makes it more probable that a consequential fact is not true.” Id. (“Evidence that roofer
received no complaints of injuries caused by fumes after using roof adhesive was relevant
to causation of plaintiff’s injuries because it made it less probable that plaintiff’s claim
that fumes caused allergic reactions was true.”) (citing Varono v. Jabar, 197 F.3d 1, 4-5
(1st Cir. 1999)). The admission of relevant evidence is to be analyzed under a “liberal
standard of admissibility." Id. at § 401.4 (citing Ferrara & DiMercurio v. St. Paul Mercury
Ins. Co., 240 F.3d 1, 6 (1st Cir. 2001)). Any perceived weakness of the proffered evidence
usually “go[es] to its weight, not to its relevance or admissibility.” Id. Moving on,
Federal Rule of Evidence 402 states that the general rule of admissibility of relevant
evidence under Federal Rule 401 persists unless otherwise provided by: the constitution
of the United States, a federal statute, the Federal Rules of Evidence, or other rules
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prescribed by the Supreme Court. Id. at § 402.2 (citing Fed. R. Evid. 402). Having
described the general policy whereby relevant evidence is to be deemed admissible, the
Court now provides the general standards of the most common exception.
Federal Rule of Evidence 403 authorizes the trial court to exclude evidence—that
is otherwise admissible under Rule 401—when the probative value of the proffered
evidence “is substantially outweighed by the danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.” (emphasis provided). Prior to coming
to an ultimate determination under Rule 403, the Court must perform “a balancing
analysis” whereby the probative value of a piece of evidence is weighed against its
potential of: producing unfair prejudice, confusing the issues, misleading the jury,
creating undue delay, and/or being unnecessarily repetitive. See Federal Courtroom
Evidence at 403.2.1. Performing the balancing act is only the beginning; the Court then
must carefully review the potential results. Under Rule 403, the Court is authorized to
exclude relevant evidence only when its probative value is substantially outweighed by
one or more 403 factor. (emphasis by the treatise, Cotchet Federal Courtroom Evidence
(Id.)).
The exclusion of evidence is not the general rule; to the contrary, the “trial court’s
discretion to exclude relevant evidence under Rule 403 should be exercised with
recognition that exclusion is extraordinary and to be invoked sparingly.” Id. at § 403.2.1
(emphasis in original); Harrington v. Hiller, 883 F.2d 411, 414 (5th Cir. 1989) (“probative
evidence should be ‘sparingly’ excluded”); United States v. Grant, 256 F.3d 1146, 1155
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(11th Cir. 2001) (“Rule 403 is extraordinary remedy whose ‘major function . . . is limited
to excluding matter of scant or cumulative probative force . . ..’”); United States v. Dodds,
347 F.3d 893, 897 (11th Cir. 2003) (“trial court’s discretion to exclude relevant evidence
under Rule 403 should be exercised with recognition that exclusion is extraordinary and
to be invoked sparingly, with trial court striking the balance in favor of admission in most
cases”).1
“Because Rule 403 requires ‘on-the-spot balancing’ of probative value and
prejudice, potentially excluding as unfairly prejudicial evidence that, nevertheless, is
factually relevant,” most, if not all, circuits review a trial court’s determination using a
“deferential standard.” Id. at § 403.2.1 (citing Sprint/United Management Co. v.
Mendelsohn, 128 S.Ct. 1140, 1145 (2008) (“trial court ‘virtually always’ is in a better
position to assess admissibility of evidence”)). The Court is reviewed under an abuse of
discretion standard. Id. (citing Gomez v. Rivera Rodriguez, 344 F.3d 103, 115 (1st Cir.
2003)).
The Court must provide any party that would be prejudiced by a determination
to exclude evidence the right to express its position. Id. at § 403.2.1 (citing United States
v. Brooks, 145 F.3d 446, 454-55 (1st Cir. 1998)). In the instant case, the prejudiced party is
the one that attempts to proffer the evidence; however, both parties have provided their
positions. A brief exposition of these legal arguments is included in the following section
when necessary.
All cited parenthesis in this opinion and order are direct quotes from the treatise or from the Court
adapted by the treatise: Federal Courtroom Evidence, supra.
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II.
PROPOSED EXCLUSIONS
A. Opinion Testimony Regarding two Deviations of Standard of Care Regarding the
Operative Technique used by Dr. Velázquez during the Cesarean Section
Dr. Velázquez and Optimum Ob-Gyn seek to exclude any testimony that suggests
two new deviations from standards of care regarding the operative technique used by
Dr. Velázquez during the cesarean section performed on Plaintiff. According to
Defendants, prior to Dr. Cohn’s deposition no mention of deviations regarding the
technique used by Dr. Velázquez during the cesarean section performed on Plaintiff were
made by Plaintiff either on the Complaint, Pre Trial Order or Expert Witness Report.
However, it is Plaintiff’s contention that Dr. Cohn’s testimony regarding the
technique used by Dr. Velázquez during Plaintiff’s C-Section was not a new liability
theory, but Dr. Cohn speculating on what, in his opinion, could have cause the bladder
injury.
The Court reviewed Dr. Cohn’s deposition transcript and expert witness report
produced by Defendants. During his deposition, Dr. Cohn clarified that he was not
submitting a new opinion but expanding and clarifying the following general statement
contained in his expert report: “[t]his bladder injury should have been discovered and
repaired prior to abdominal closure, with no need for further surgery.”2 See Docket No.
96-1 P. 3 ¶ 3.
Dr. Cohn’s Deposition Transcript Docket No. 96-2 p. 62 l. 1-16
A. Yes ma’am. There are two more deviations.
Q. Okay. Please state.
A. Okay. Number one was improper operative technique.
Q. Where do you state that in your report?
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Furthermore, the Court reviewed the Complaint to ascertain as to whether the
allegations included are enough to cover the deviations of standard of care suggested by
Dr. Cohn. For the purpose of this exercise the Court deems necessary to include the
allegations regarding deviations of standard of care suggested by Plaintiff in the
Complaint.
“23. Defendants departed from the standard of care, in not properly looking
for, diagnosing and managing an iatrogenic bladder injury during a repeat
cesarean section with extensive pelvic adhesions noted, which led to
preventable severe consequences as described, including a repair injury.
This bladder injury should have been discovered and repaired prior to
abdominal closure, with no need of further surgery.
24. The standard of care requires that an appropriate evaluation be made to
asses and repair damage to any organs involved in or near the operative
field prior to closing the abdomen.
25. The medical literature establishes that the bladder is an organ that can
be damaged in this circumstance. However, intraoperative recognition of
the injury usually permits prompt and successful repair. Delayed
recognition of the injury, in the postoperative period, as occurred in this
case, is a departure from the standard of care and is associated with serious
complications.
26. Careful analysis of the facts and events of this case reveals that PCH,
OOG’s and COGG’s personnel, including Dr. Velázquez, were practicing
below the standard of care in the treatment provided to Mrs. Patric M.
Rivera Marrero. Defendants’ departures from the medical standards
and/or professional negligence include, but are not limited to: failure to
recognize, appropriately asses and repair damage to any organs involved
in or near the operative field prior to closing the abdomen; failure to
recognize that Mrs. Rivera’s bladder was damaged in this circumstance and
A. It’s an expansion and clarification of the bladder injury should have been discovered and repaired, et
cetera, et cetera.
Q. Okay. Well, that goes to the assessment. But I’m saying about where do you mention technique in your
report?
A. I consider assessment and technique to be closely –
Q. The same?
A. -- closely -- no -- closely intertwined and available for expansion and clarification.
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to perform an appropriate repair procedure to assure bladder integrity
before abdominal closure.
27. Patric M. Rivera Marrero has suffered severe physical and emotional
damages as a consequence of defendants’ negligence. She experiences leaks
of urine, has lost sensation to urinate and suffers from severe pain. The life
changing incidents described above have taken a heavy toll on this young
woman.
28. The damages to her bladder and the consequential physical and
emotional damages suffered by Mrs. Rivera were caused by the negligent
management of Mrs. Rivera’s cesarean section procedure. Defendants’
departures from the medical standards of care and failure to act in a
prudent, reasonable or responsible manner in the medical care provided to
Mrs. Rivera, in fact caused the traumatic outcome outlined above.” See
Docket No. 1. pp. 4-5 ¶¶ 23-28.
It is a well-known fact that the rule of law applicable to pleadings is that “[e]ach
allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). “The new rules,
however, restrict the pleadings to the task of general notice-giving and invest the
deposition-discovery process with a vital role in the preparation for trial”, Hickman v.
Taylor, 329 U.S. 495, 501, 67 S. Ct. 385, 388, 91 L. Ed. 451 (1947); see also Politico v. Promus
Hotels, Inc., 184 F.R.D. 232, 233 (E.D.N.Y. 1999) (“The complaint should state only enough
facts, in simple, concise, and direct terms to show what plaintiff's claims are and to allow
defendant to respond.”); and 5 Fed. Prac. & Proc. Civ. § 1281 (3rd ed.). The fact that
Plaintiff’s allegations in the Complaint comply with the standard of being simple, concise,
and direct, does not preclude Plaintiff from expanding from such allegations in order to
substantiate them.
Moreover, any opinions provided by Dr. Cohn can be refuted with admissible and
relevant evidence, subject to any limitations provided by the Federal Rules of Evidence.
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The Court will not prevent Defendants from exercising their rights under the rules to
attack the weight of expert testimony and, in turn, allow Plaintiffs' expert to have the sole
word on an ultimate fact at issue.
Accordingly, Defendants’ motion is DENIED as to the two deviations of standards
of care regarding the operative technique used by Dr. Velázquez during the Cesarean
Section since it pertains to an issue of evidentiary weight and not admissibility.
B. Opinion Testimony from Dr. Cohn Regarding lack of informed consent from
Plaintiff
The remaining request for motion in limine lies on the fact that Dr. Cohn suggests
that there was a lack of informed consent from Plaintiff during his deposition which was
not mentioned in his expert report nor on the Complaint or Pre Trial Order. Dr. Cohn
explained during his deposition that a final expansion and clarification from his expert
report was that Dr. Velázquez failed to give proper informed consent to Plaintiff before
her cesarean section. See Docket No. 96-2 pp. 72-73.3 Dr. Cohn further confirmed that
My final expansion and clarification is that Dr. Velázquez failed to give proper informed consent. The
standard of care calls for Dr. Velazquez to tell the patient that they should reasonably anticipate the
presence of adhesion. And the presence of adhesions makes the operative technique more difficult and
imperils certain organs, including the urinary tract, okay, and so document.
The patient then has the opportunity to ask Dr. Velazquez, well, Doctor, I’m very concerned about my
bladder or my urine or my urinary tract being injured, what do you plan to do to diagnose it, and what do
you plan to do if you should find such a situation? Thereby not only reinforcing that Dr. Velazquez knew
about this complication when she gave informed consent, but reinforcing the necessity to follow the
patient’s question as to how should it be found and what should be done about it.
Q. Okay. Again, Doctor, where in your report do you even mention lack of informed consent?
A. It’s part of the -- it’s part of the expansion and clarification of the bladder injury.
3
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there was no mention of lack of informed consent; rather it was indirectly implicated in
his report. Id. at 74-75.4
The Court performed a careful analysis of Dr. Cohn’s expert report. Although the
deposition of Dr. Cohn was taken on August 21, 2015, almost a year before Discovery cutoff date, July 18, 2016, Plaintiff never produced a supplement to Dr. Cohn’s expert witness
report. The disclosing party had a duty to supplement the written report by November
14, 2016, which was effectively “at least 30 days before trial.” Fed. R. Civ. P. 26(a)(2)(E),
26(e)(2), 26(a)(3), and 6(a)(1). Consequently, the Proposed Pre-Trial Order was filed on
October 27, 2016 with no amendments in Plaintiff’s theory. See Docket No. 83.
Because of the problems posed by last-minute changes in an expert’s opinions,
Rule 26 emphasizes full disclosure and subsequent supplementation of expert testimony
if any changes to the expert’s opinion arise. Specifically:
“[f]or an expert whose report must be disclosed under Rule 26(a)(2)(B), the
party's duty to supplement extends both to information included in the
report and to information given during the expert's deposition. Any
additions or changes to this information must be disclosed by the time the
party's pretrial disclosures under Rule 26(a)(3) are due.” Fed. R. Civ. P.
26(e)(2);
Q. No. I don’t want expansions, Doctor. I want you to signal -- to identify in your report because I may
have missed it. Where does it say “informed consent”? Which paragraph, which line, please?
A. A, I’m not required to specifically use those words, “informed consent” -Q. Doctor where does it say -A. I’m going to continue to answer the proper way.
Q. No, no. I want you to tell me yes or no.
A. Can I -Q. Did you write “informed consent” in this report?
A. Indirectly, by implication, I did.
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see also Tenbarge v. Ames Taping Tool Systems, Inc., 190 F.3d 862 (8th Cir. 1999)(A new trial
was warranted because the trial testimony of defendant's expert contrasted sharply with
his deposition testimony, and defendant did not supplement. Defendant clearly had a
duty under Rule 26(e) to inform plaintiff of any changes or additions to the expert's
testimony.). “This supplementation requirement increases the quality and fairness of the
trial by narrowing [the] issues and eliminat[ing] surprise.” Ferrara & DiMercurio v. St. Paul
Mercury Ins. Co., 240 F.3d 1, 10 (1st Cir. 2001)(quoting Licciardi v. TIG Ins. Group, 140 F.3d
357, 363 (1st Cir.1998)).
As such, any “[c]hanges in the opinions expressed by the expert whether in the
report or at a subsequent deposition are subject to a duty of supplemental disclosure
under subdivision (e)(1).” Fed. R. Civ. P. 26(a) advisory committee’s notes. When the
duty to supplement is violated, the Court has discretion to exclude the evidence. See Peña
Crespo v. Puerto Rico, 408 F.3d 10, 13 (1st Cir. 2005)(when an expert report fails to satisfy
the specifics of the rule or when an expert opinion introduced at trial has not been
included in the expert’s pre-trial report, the Court may exclude the evidence.).
Furthermore, expert-related disclosures are insufficient when they consist of
“sketchy and vague descriptions of anticipated opinions or areas of anticipated
testimony.” Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546 (5th Cir.
1996); see also Romero v. Drummond Co., Inc., 552 F.3d 1303 (11th Cir. 2008) (District Court
acted properly in excluding experts whose reports consisted of single paragraphs
explaining the expert’s opinion and the basis for it. None of the reports stated the expert’s
opinions with sufficient specificity to allow defendants to prepare for rebuttal or cross-10-
examination). “After all . . . Rule 26(a)(2)(B) [calls] for the parties to make explicit and
detailed expert disclosures.” Santiago-Diaz v. Laboratorio Clinico Y De Referencia Del Este
And Sara Lopez, M.D., 456 F.3d 272, 276 (1st Cir. 2006); see also Ortiz-Lopez v. Sociedad
Espanola de Auxilio Mutuo Y Beneficiencia de Puerto Rico, 248 F.3d 29, 35 (1st Cir. 2001) (“The
purpose of a ‘detailed and complete’ expert report as contemplated by Rule 26(a) . . . is,
in part, to minimize the expense of deposing experts, and to shorten direct examination
and prevent an ambush at trial. . . . Failure to include information concerning the retained
expert that is specifically required by Rule 26(a)(2)(B) . . . frustrates the purpose of candid
and cost-efficient expert discovery.” (Internal citations omitted)).
Any fair reading of Dr. Cohn’s three-page expert report would lead the reader to
conclude that no opinion regarding lack of informed consent would be given. See Docket
No. 34-2 (expert report) and Docket No. 34-7 (identifying the expert report as final).
Plaintiff failed to supplement Dr. Cohn’s expert report after the expert was deposed
knowing full well that Cohn’s deposition testimony had greatly expanded, and
sometimes varied, from his written report. Further, the deadlines to remedy these
obvious deficiencies have passed.
In light of all of the preceding circumstances, all that remains is for the Court to
look towards Rule 37(c)(1) to gauge whether some form of sanction is merited:
Failure to Disclose or Supplement. 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 on a motion, at a
hearing, or at a trial, unless the failure was substantially justified or is
harmless. In addition to or instead of this sanction, the court, on motion and
after giving an opportunity to be heard:
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(A) may order payment of the reasonable expenses, including attorney’s
fees, caused by the failure;
(B) may inform the jury of the party’s failure; and
(C) may impose other appropriate sanctions, including any of the orders
listed in Rule 37(b)(2)(A)(i)-(vi).
As the foregoing rule makes reference to the sanctions contained in Rule
37(b)(2)(A)(i)-(vi), these sanctions are also enclosed and set forth below:
(i) directing that the matters embraced in the order or other designated facts
be taken as established for purposes of the action, as the prevailing party
claims;
(ii) prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated matters in
evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; . . .
(Emphasis provided).
Clearly, the options at the Court’s disposal are legion.
Next, the Court looks toward First Circuit precedent for guidance in selecting an
adequate remedy.
When reviewing a district court’s “choice of sanction for late
submissions,” the First Circuit has stated the following:
In conducting this tamisage, we consider the totality of the circumstances,
including the overall history of the litigation, the importance of the
precluded evidence, the justification (or lack of justification) for the delay,
the nature and extent of prejudice to the other side, and the impact of the
failure to comply with the discovery deadline on the district court’s docket.
See Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 78 (1st Cir. 2009).
Genereux v. Raytheon Co., 754 F.3d 51, 60 (1st Cir. 2014).
Considering the above stated elements, the Court simply cannot oversee the fact
that Dr. Cohn did not supplement his expert report with the lack of informed consent
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findings he made during his deposition. The Court also notes that there is no allegation
contained in the Complaint that suggests a lack of informed consent from Dr. Velázquez
to Plaintiff. Further, lack of informed consent is not part Plaintiff’s theory of liability on
the Pre-Trial Order.
Therefore, Dr. Cohn cannot testify in any way about lack of informed consent.
Accordingly, the motion as to precluding testimony regarding lack of informed consent
is GRANTED.
III.
CONCLUSION
For the reasons elucidated above, the Court hereby DENIES Defendants’, Motion
in Limine as to testimony from Plaintiff’s expert witness, Dr. Howard Cohn, regarding
two deviations of standard of care regarding the operative technique used by Dr.
Velázquez during the Cesarean Section and; GRANTS Defendants’ motion as to opinion
testimony regarding lack of informed consent from Plaintiff.
IT IS SO ORDERED.
In San Juan, Puerto Rico, on this 12th day of June, 2017.
S/DANIEL R. DOMÍNGUEZ
DANIEL R. DOMÍNGUEZ
UNITED STATES DISTRICT JUDGE
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