Martinez et al v. United States of America

Filing 51

ORDER denying 48 MOTION for Reconsideration re 46 Order on Motion in Limine filed by Noel Martinez, Meliluz Martinez, Noelie Martinez, Jeshica Martinez. Signed by Judge Raul M. Arias-Marxuach on 7/26/2019. (Arias-Marxuach, Raul)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
NOEL MARTINEZ, ET AL.
Plaintiffs
CIVIL NO. 16-2430(RAM)

v.
UNITED STATES OF AMERICA
Defendants

ORDER
RAÚL M. ARIAS-MARXUACH, District Judge
I. BACKGROUND
On

July

defendant’s

10,

2019,

this

Court

motion

to

exclude

the

issued

an

testimony

order
of

granting

Plaintiffs’

proffered expert witness Dr. José R. Ortiz-Feliciano. (Docket No.
46). Currently pending before the Court is Plaintiffs’ Motion for
Reconsideration of Opinion and Order Entered at Docket No. 46.
(Docket No. 48). After analyzing the arguments raised by the
Plaintiffs as well as conducting an additional review of Dr. OrtizFeliciano’s

two-page

expert

report,

This

Court

reaffirms

its

initial conclusion that Dr. Ortiz’s testimony does not comply with
Fed. R. Evid. 702 and Fed. R. Civ. P. 26(a)(2)(B). Plaintiff’s
Motion for Reconsideration is DENIED.

Civil No. 16-2430 (RAM)

2

II. STANDARD OF REVIEW
District courts may grant a motion for reconsideration if the
moving party shows that there is “(1) newly discovered evidence
that

would

change

the

result,

(2)

an

intervening

change

in

controlling law, or (3) the need to correct a manifest error of
law or fact.” Moreno-Perez v. Toledo-Davila, 266 F.R.D. 46, 48
(D.P.R. 2010) (citing Silva Rivera v. State Ins. Fund Corp., 488
F.Supp.2d 72, 78 (D.P.R. 2007)). These motions may not be used by
the losing party to rehash matters previously decided by the court,
repeat old arguments that have been rejected, or raise legal
theories that should have been raised earlier. Sanchez Rodriguez
v. Departamento de Correccion y Rehabilitacion, 537 F. Supp. 2d
295, 297 (D.P.R. 2008).
III. ANALYSIS
Plaintiffs attempt to meet this standard by arguing that the
Court has no justification to strike the expert witness testimony
given

that

all

the

information

required

by

Fed.

R.

Civ.

P.

26(a)(2)(B) was provided, albeit not in the report. (Docket No. 48
at 7-12). Plaintiffs state that in addition to the report itself,
they provided copies of the medical literature used by Dr. OrtizFeliciano as well as his CV, and that during his deposition Dr.
Ortiz-Feliciano testified regarding the compensation he received
for his report and the cases in which he has participated in the
past. (Docket No. 48 at 7-8). However, the report itself does not

Civil No. 16-2430 (RAM)

3

contain this information. (Docket No. 48-2). It is worth noting
that generally, Fed. R. Civ. Proc. 26 “does not allow parties to
cure deficient expert reports by supplementing them with later
deposition testimony.”

Rodriguez v. Torres, 2015 WL 1138256, at

*6 (D.P.R. Mar. 13, 2015), aff'd sub nom. Santos-Rodriguez v.
Seastar Sols., 858 F.3d 695 (1st Cir. 2017) (internal citations
omitted).
Despite Plaintiffs’ allegations to the contrary, the report
fails to identify the national standard of care. (Docket No. 482). Instead, after providing a brief summary of the hospital
records, the report states in a conclusory fashion that “[t]his is
a departure from the accepted medical practice.” (Docket No. 48-2
at 2). This District has established that failing to adequately
define the national standard of care consists of grounds for
striking an expert witness report in medical malpractice cases.
See Vargas-Alicea v. Continental Casualty Company, 2019 WL 1453070
(D.P.R. 2019) (striking an expert witness report that instead of
identifying the national standard of care, only stated what the
clinic should have done differently).
Moreover, Dr. Ortiz-Feliciano’s report does not mention any
data or medical literature, beyond the hospital records, used to
sustain his contention that there was a deviation from the standard
of care. To comply with Fed. R. Civ. P. 26(a)(2)(B), the report
necessarily needed to include this information, not simply provide

Civil No. 16-2430 (RAM)

4

copies of medical literature. However, the main flaw of Dr. OrtizFeliciano’s report in this regard is not failing to mention the
medical literature that he used. The fundamental issue is that it
does not relate the content of the publications utilized to his
belief that the national standard of care was not met. See VargasAlicea v. Continental Casualty Company, 2019 WL 1453070, at *2
(D.P.R. 2019) and Baker v. Chevron USA, Inc., 680 F. Supp. 2d 865,
878 (S.D. Ohio 2010), aff'd sub nom. Baker v. Chevron U.S.A. Inc.,
533 F. App'x 509 (6th Cir. 2013)(striking an expert report in part
because

the

expert

“made

no

effort

to

connect

the

medical

literature to his opinions.”)
Without fundamental information such as the national standard
of care and why Dr. Ortiz-Feliciano believes that there was a
deviation from it, the report in question is not reliable nor
helpful to the trier of fact. Thus, the report fails to comply
with Fed. R. Evid. 702. In their Motion for Reconsideration,
Plaintiffs

posit

that

courts

should

not

exclude

debatable

scientific evidence “except when defects are obvious on the face
of a proffer”. (Docket No. 48 at 6) (citing Margaret A. Berger,
Procedural Paradigms for Applying the Daubert Test, 78 Minn. L.Rev.
1345, 1379–80, 1381 (1994)). This is one of those instances.
Lastly, this Court will not consider the dismissal of the
case at this time given that a dispositive motion has not been
filed to that end.

Civil No. 16-2430 (RAM)

5
IV. CONCLUSION

For the reasons set forth herein, the Court reaffirms its
determination that Dr. Ortiz-Feliciano’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. (Docket
No. 46). Wherefore, Plaintiff’s Motion for Reconsideration at
Docket No. 48 is DENIED.
IT IS SO ORDERED.
In San Juan Puerto Rico, this 26th day of July 2019
S/ RAÚL M. ARIAS-MARXUACH
United States District Judge