Martinez et al v. United States of America
Filing
46
OPINION AND ORDER granting 33 Motion in Limine. Signed by Judge Raul M. Arias-Marxuach on 7/10/19. (mrr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
NOEL MARTINEZ, ET AL.
Plaintiffs
v.
CIVIL NO. 16-2430(RAM)
UNITED STATES OF AMERICA
Defendants
OPINION AND ORDER
RAÚL ARIAS-MARXUACH, District Judge
Pending before the court is Defendant’s motion to exclude the
testimony of Plaintiffs’ expert witness, Dr. José R. Ortiz-Feliciano.
(Docket No. 33.) Plaintiffs have filed an opposition. (Docket No. 38.)
After carefully reviewing the parties’ arguments, the case record and
the applicable law, the Court hereby GRANTS Defendants’ motion to exclude
the proffered expert testimony of Dr. José R. Ortiz-Feliciano.
I. BACKGROUND
On August 3, 2016, Plaintiffs filed an action for emotional and
physical damages against the United States of America pursuant to the
Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671, et seq. (Docket No.
1 at 4.) Specifically, Plaintiffs claim that Mr. Noel Martínez-Marrero’s
wrongful death was caused by the negligence and medical malpractice of
the Veterans Affairs Hospital (“VA Hospital”) that treated him. (Docket
No. 1 at 2.) On December 12, 2016, the Defendant filed an answer to the
complaint denying all acts of negligence. (Docket No. 11 at 5.)
Civil No. 16-2430 (RAM)
2
Plaintiffs retained Dr. José R. Ortiz-Feliciano as their expert
witness to testify about Mr. Martínez-Marrero’s cause of death, the
applicable medical standards and the deviations of care by VA Hospital.
(Docket No. 27 at 33.)
On
February
11,
2019,
Defendant
moved
to
exclude
Dr.
Ortiz-
Feliciano’s expert witness testimony for failing to meet the requirements
of Fed. R. Evid. 702. Defendant alleges that because Mr. Martínez-Marrero
was evaluated and admitted by the VA Hospital’s Internal Medicine
Service, Dr. Ortiz-Feliciano is not qualified to testify as an expert
in the present case given that his training is in general medicine and
surgery and not internal medicine. (Docket No. 33 at 8-9.) Moreover,
Defendant argues that Dr. Ortiz-Feliciano’s testimony will not assist
the trier of fact because the report of his testimony does not include
or discuss (1) the appropriate standard of care; (2) the medical data
used to support his conclusions; (3) that there was a deviation from
acceptable
medical
standards;
(4)
nor
the
damages
caused
by
the
defendant’s deviations. (Docket No. 33 at 5.)
On
March
Defendant’s
Plaintiffs
3,
motion
affirm
2019,
to
that
Plaintiffs
exclude
Dr.
presented
expert
their
testimony.
Ortiz-Feliciano
does
opposition
(Docket
not
need
No.
to
to
38.)
be
a
specialist to be qualified as an expert witness (Docket No. 38 at 8-9.)
Additionally, Plaintiffs argue that Defendant’s critiques can affect the
probative weight of Dr. Ortiz-Feliciano’s expert testimony but not its
admissibility. (Docket No. 38 at 9.)
Civil No. 16-2430 (RAM)
3
II. APPLICABLE LAW
A. The Admissibility of Expert Witness Testimony
Federal Rule of Evidence 702 governs the admissibility of expert
witness testimony. Fed. R. Evid. 702 establishes that:
A witness who is qualified as an expert by
knowledge,
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.
Pursuant to Rule 702, trial judges are tasked with “ensuring that
an expert’s testimony both rests on reliable foundation and is relevant
to the task at hand.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
579, 597 (1993). When applying this rule, judges must assume the “role
of gatekeepers to screen expert testimony that although relevant, was
based on unreliable scientific methodologies.” González–Pérez v. GómezÁguila, 296 F.Supp.2d 110, 113 (D.P.R. 2003) (citing Daubert, 509 U.S.
at
597
(1993)
(“Pertinent
evidence
based
on
scientifically
valid
principles will satisfy those demands.”)
When assessing the reliability of expert testimony, trial courts
can consider the following factors discussed in Daubert: (1) whether the
expert’s theory or technique is generally accepted as reliable in the
scientific community; (2) whether the theory or technique in question
can be, and has been, tested; (3) whether the theory or technique has
been subjected to peer review and publication; and (4) the known or
Civil No. 16-2430 (RAM)
4
potential rate of error of the theory or technique. Daubert, 509 U.S.
at 588-594.
In the performance of their gatekeeping function, judges must focus
“solely on principles and methodology, not on the conclusions that they
generate.” Daubert, 509 U.S. at 595. Although certainly conclusions and
methodology are not entirely distinct from one another, “a court may
conclude that there is simply too great an analytical gap between the
data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136,
146 (1997). See also Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311,
1319 (9th Cir. 1995) (“We've been presented with only the experts'
qualifications, their conclusions and their assurances of reliability.
Under Daubert, that's not enough.”)
Thus, to ensure reliability and intellectual rigor, experts “must
be able to produce a written report or testimony supported by an accepted
methodology that is based on substantial scientific, technical, or other
specialized knowledge.” Figueroa v. Simplicity Plan de Puerto Rico, 267
F. Supp. 2d 161, 164 (D.P.R. 2003). “Failure to provide a testimony or
a report detailing the basis for the expert's opinion in a comprehensive
scientific manner can cause the expert witness and his report to be
eliminated
from
trial.”
Id.
(citing
Justo
Arenas
&
Carol
M.
Romey, Professional Judgement Standard and Losing Games for Psychology,
Experts and the Courts, 68 Rev. Jur. U.P.R. 159, 180 (1999)).
In order to be admissible, expert reports must also comply with
Federal Rule of Civil Procedure 26(a)(2)(B). Fed. R. Civ. P. 26(a)(2)(B)
requires that expert reports contain the following information:
Civil No. 16-2430 (RAM)
5
(i) a complete statement of all opinions the
witness will express and the basis and reasons for
them;
(ii) the facts or data considered by the witness
in forming them;
(iii) any exhibits that will be used to summarize
or support them;
(iv) the witness's qualifications, including a
list of all publications authored in the previous
10 years;
(v) a list of all other cases in which, during the
previous 4 years, the witness testified as an
expert at trial or by deposition; and
(vi) a statement of the compensation to be paid
for the study and testimony in the case.
These requirements make it clear that Rule 26(a)(2)(B) “call[s]
for parties to make explicit and detailed expert disclosures.” SantiagoDiaz v. Laboratorio Clinico Y De Referencia Del Este And Sara Lopez,
M.D., 456 F.3d 272, 276 (1st Cir. 2006) Thus, “expert-related disclosures
are insufficient when they consist of “sketchy and vague descriptions
of anticipated opinions or areas of anticipated testimony.” RiveraMarrero v. Presbyterian Cmty. Hosp., 255 F. Supp. 3d 290, 296–97 (D.P.R.
2017) (quoting 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) (The District Court did not abuse
its discretion when excluding experts whose reports consisted of single
paragraphs that merely recited the general subject matter of their
expected testimony and lacked any of the substance required by Rule
26(a)(2)(B).)
In
accordance
with
these
requirements,
Fed.
R.
Civ.
P.
Rule
26(e)(2) dictates that parties have a duty to supplement an expert’s
report by the time pretrial disclosure are due.
The duty to supplement
Civil No. 16-2430 (RAM)
6
applies to “[c]hanges in the opinions expressed by the expert whether
in
the
report
or
at
a
subsequent
deposition.”
Fed.
R.
Civ.
P.
26(a) advisory committee's notes.
B. Which Physicians are Qualified to Testify as Experts
When analyzing the admissibility of an expert witness, the trial
court must first resolve “whether the putative expert is qualified by
knowledge,
skill,
experience,
training,
or
education,”
to
offer
testimony. Mitchell v. United States, 141 F.3d 8, 14 (1st Cir.1998)
(citation omitted). In the context of physicians, credentials such as a
board certification in a medical specialty have never been a prerequisite
to qualification as an expert witness. See Pages-Ramirez v. RamirezGonzalez,
605
F.3d
109,
114
(1st
Cir.
2010)
(quoting
Alvarado
v.
Weinberger, 511 F.2d 1046, 1049 (1st Cir.1975) (per curiam)). Although
said credentials are relevant when considering the weight and probative
value of expert witness testimony, they are not necessary for its
admissibility. Id.
The First Circuit has reiterated that an expert physician does not
need to be “a specialist in a particular medical discipline to render
expert
testimony
relating
to
that
discipline.”
Gaydar
v.
Sociedad
Instituto Gineco-Quirurgico y Planificacion, 345 F.3d 15, 24 (1st Cir.
2003).
See
also
Mitchell
v.
United
States, 141
F.3d
8,
15
(1st
Cir.1998); Payton v. Abbott Labs, 780 F.2d 147, 155 (1st Cir.1985) (“The
fact that the physician is not a specialist in the field in which he is
giving his opinion affects not the admissibility of his opinion but the
weight the jury may place on it.”) Furthermore, excluding testimony “that
would otherwise ‘assist the trier better to understand a fact in issue’
Civil No. 16-2430 (RAM)
7
simply because the expert does not have the specialization that the court
considers most appropriate” is considered to be an abuse of the court’s
discretion. Pages-Ramirez, 605 F.3d at 114. See also Gaydar, 345 F.3d
at 24–25 (“[I]t would have been an abuse of discretion for the court to
exclude Dr. Rodriguez’s testimony on the sole basis that his medical
specialty was something other than gynecology or obstetrics.”)
C. The standard of care in medical malpractice cases
In order to prevail in a medical malpractice claim, a plaintiff
must establish three elements: (1) the basic norms of knowledge and
medical care applicable to general practitioners or specialists (“the
standard of care”); (2) proof that the medical personnel failed to follow
these basic norms in the treatment of a patient; and (3) a causal relation
between the act or the omission of the physician and the injury by the
patient. See Santiago v. Hosp. Cayetano Coll y Toste, 260 F. Supp. 2d
373, 381 (D.P.R. 2003).
Puerto
Rico
law
holds
physicians
in
malpractice
cases
to
a national standard of care. See Cortes-Irizarry v. Corporacion Insular
De Seguros, 111 F.3d 184, 190 (1st Cir. 1997). Therefore, a physician’s
duty is to provide patients with medical care “that, in the light of the
modern means of communication and education, meets the requirements
generally
recognized
by
the
medical
profession.” Ramirez-Ortiz
v.
Corporacion Del Centro Cardiovascular de Puerto Rico y Del Caribe, 32
F. Supp. 3d 83, 87 (D.P.R. 2014) (quoting Santiago–Otero v. Mendez, 135
D.P.R. 540, 1994 P.R.-Eng. 909,224 (1994)).
Civil No. 16-2430 (RAM)
8
III. ANALYSIS
Prior
to
considering
the
content
of
Dr.
Ortiz-Feliciano’s
testimony, we must first determine if he is qualified to testify as an
expert. Courts have clearly established that physicians do not need to
be specialists in order to be qualified experts. See Gaydar, 345 F.3d
at
24.
Therefore,
contrary
to
Defendant’s
allegations,
Dr.
Ortiz-
Feliciano is qualified to testify in the present medical malpractice
case despite being a surgeon and not an internal medicine specialist.
Generally, for Dr. Ortiz-Feliciano’s testimony to be admissible it
must be both reliable and relevant. Reliability in this context requires
that it be based on sufficient data and/or facts and is the product of
trustworthy principles. For the testimony to be considered relevant, it
must help the trier of fact to understand the evidence or determine a
fact in issue. Furthermore, the expert witness report must contain the
information required by Fed. R. Civ. P. 26(a)(2)(B).
The Defendant submitted Dr. Ortiz-Feliciano’s expert witness report
as Exhibit 2 in their motion in limine. (Docket No. 33-2.) The excerpt
of Dr. Ortiz-Feliciano’s deposition that was also included as an exhibit
does not discuss if the report is final. (Docket No. 33-3.) However,
Plaintiffs have not alleged that this is not the final report nor that
they have supplemented that report. (Docket No. 38.) It is worth noting
that the parties submitted their joint proposed pretrial report on July
30, 2018. (Docket No 27.) Thus, the Plaintiffs are currently barred from
supplementing the report. Fed. R. Civ. P. 26(e)(2).
Dr. Ortiz-Feliciano’s report is only two pages long. (Docket No.
33-2.) Most of the report consists of a cursory summary of Mr. Martínez-
Civil No. 16-2430 (RAM)
9
Marrero’s clinical history, hospital record and autopsy report. (Docket
No. 33-2 at 1-2.) The report includes a table showing Mr. MartínezMarrero’s decreasing platelet count on various dates between October 18,
2014 and October 26, 2014. (Docket No. 33-2 at 2.) Dr. Ortiz-Feliciano
then states that “[w]e can only postulate that this decrease continued
during the period of 10/27 to 10/29.”1 (Docket No. 33-2 at 2.) He proceeds
to conclude that: “The decline in platelet levels was not monitored or
corrected during the last 3 days prior to death. This is a departure
from accepted medical practice.” (Docket No. 33-2 at 2.)
Pursuant
application
of
to
the
Fed.
previously
R.
Evid.
cited
702,
this
case
law
Court
interpreting
must
focus
on
the
the
reliability of the principals and methodology utilized by the expert.
Daubert, 509 U.S. at 595. However, in this instance, the report offers
no principles, methods, medical literature or other sources to analyze.
The report simply summarizes Mr. Martínez-Marrero’s medical records and
then proceeds to offer various conclusory statements.
Beyond failing
to show that the testimony is supported by an accepted methodology based
on substantial scientific or specialized information, the report also
admittedly lacks key facts that are fundamental for its conclusion. See
Figueroa,
267
F.
Supp.
at
164.
Specifically,
Dr.
Ortiz-Feliciano
explicitly states that he can “only postulate” that Mr. MartínezMarrero’s platelet count continued to decrease during the three days
prior to his death. As discussed in Gen. Elec. Co. v. Joiner, we must
conclude that there is “simply too great an analytical gap between the
data and the opinion proffered.” Gen. Elec. Co., 522 U.S. at 146.
1
Mr. Martínez-Marrero passed away on October 29, 2014.
Civil No. 16-2430 (RAM)
10
Considering the above, Plaintiffs’ expert witness testimony is patently
unreliable due to its lack of data, facts and methodology.
In addition to being unreliable, Dr. Ortiz-Feliciano’s testimony
does not provide any helpful information that could not be obtained from
revising Mr. Martínez-Marrero’s hospital record and autopsy report. The
report does not explain, or even define, the medical conditions and
medications described in said records in a way that would facilitate
understanding them. With regards to the elements of a malpractice case,
the expert witness report glaringly omits mentioning the applicable
standard of care that Defendant’s should have met prior to concluding
that
a
departure
occurred.
Thus,
given
that
the
report
lacks
an
explanation of Mr. Martínez-Marrero’s medical condition or any opinion
adequately supported by facts and specialized knowledge, it would not
assist the trier of fact in this case.
Lastly, Plaintiffs’ expert witness report is not admissible because
it does not completely contain any of the information required by Fed.
R. Civ. P. 26(a)(2)(B). It is also clear that the report was not
supplemented accordingly following Dr. Ortiz-Feliciano’s deposition.
Fed. R. Civ. P. 26(e)(2).
IV. CONCLUSION
For the reasons set forth herein, the Court finds that Dr. OrtizFeliciano’s
report
and
proffered
testimony
do
not
fulfill
the
requirements of Fed. R. Evid. 702, Fed. R. Civ. P. 26(a)(20(B) and the
applicable
case
law.
Wherefore,
Defendant’s
motion
to
exclude
the
testimony of Plaintiffs’ expert witness at Docket No. 33 is hereby
GRANTED.
Civil No. 16-2430 (RAM)
11
IT IS SO ORDERED.
In San Juan Puerto Rico, this 10th day of July 2019.
S/ RAÚL ARIAS-MARXUACH
United States District Judge
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