Martinez et al v. United States of America

Filing 73

OPINION AND ORDER: The Court GRANTS Defendant's Motion for Summary Judgment at Docket No. 62 . Judgment shall be entered accordingly. Signed by Judge Raul M. Arias-Marxuach on 8/26/2020. (mrr)

Case 3:16-cv-02430-RAM Document 73 Filed 08/26/20 Page 1 of 16

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
Defendant

OPINION AND ORDER
RAÚL M. ARIAS-MARXUACH, District Judge
Pending before the court is Defendant’s Motion for Summary
Judgment (Docket No. 62) accompanied by a Statement of Undisputed
Material Facts (Docket No. 63) and supporting Memorandum of Law
(Docket No. 64). Plaintiffs filed a Statement in Opposition to
Defendants Statement of Undisputed Material Facts (Docket No. 71)
and a Memorandum in Opposition. (Docket No. 72). After reviewing
the parties’ filings and the applicable law, the Court hereby
GRANTS Defendant’s Motion for Summary Judgment at Docket No. 62.
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 allege that Mr.
Noel Martínez-Marrero’s (“Martínez-Marrero”), their father, died

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Civil No. 16-2430 (RAM)
due

to

negligent

2

treatment

provided

by

the

Veterans

Affairs

Hospital (“VA Hospital”). Id. at 2). On December 12, 2016, the
Defendant filed an Answer to the Complaint denying all acts of
negligence. (Docket No. 11 at 5).
Plaintiffs retained Dr. José R. Ortiz-Feliciano (“Dr. OrtizFeliciano”) as their expert witness to testify about Mr. MartínezMarrero’s cause of death, the applicable medical standards and the
deviations of care by the VA Hospital. (Docket No. 27 at 33). On
February 11, 2019, Defendant filed a Motion in Limine to exclude
Dr. Ortiz-Feliciano’s expert testimony for failing to meet the
requirements of Fed. R. Evid. 702. (Docket No. 33). Plaintiffs
filed

an

Opposition

in

response.

(Docket

No.

38).

The

Court

ultimately granted Defendant’s Motion in Limine, thereby striking
Dr.

Ortiz-Feliciano’s

proffered

testimony.

(Docket

No.

46).

Furthermore, the Court denied Plaintiffs’ subsequent Motion for
Reconsideration. (Docket No. 48).
II. LEGAL REVIEW
A motion for summary judgment is governed by Fed. R. Civ. P.
56(a). Summary judgment is proper if the movant shows that: (1)
there is no genuine dispute as to any material fact and (2) they
are entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(a). “A dispute is ‘genuine’ if the evidence about the fact is
such that a reasonable jury could resolve the point in favor of
the non-moving party.” Thompson v. Coca–Cola Co., 522 F.3d 168,

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Civil No. 16-2430 (RAM)

3

175 (1st Cir. 2008). A fact is considered material if it “may
potentially ‘affect the outcome of the suit under governing law.’”
Albite v. Polytechnic Univ. of Puerto Rico, Inc., 5 F. Supp. 3d
191, 195 (D.P.R. 2014) (quoting Sands v. Ridefilm Corp., 212 F.3d
657, 660–661 (1st Cir. 2000)).
The moving party has “the initial burden of demonstrat[ing]
the absence of a genuine issue of material fact with definite and
competent evidence.” Mercado-Reyes v. City of Angels, Inc., 320 F.
Supp. 344, at 347 (D.P.R. 2018) (quotation omitted). The burden
then shifts to the nonmovant, to present “competent evidence to
rebut the motion.” Bautista Cayman Asset Co. v. Terra II MC & P,
Inc., 2020 WL 118592, at 6* (quoting Méndez-Laboy v. Abbott Lab.,
424 F.3d 35, 37 (1st Cir. 2005)). A nonmoving party must show “that
a trialworthy issue persists.” Paul v. Murphy, 2020 WL 401129, at
*3 (1st Cir. 2020) (quotation omitted).
While a court will draw all reasonable inferences in favor of
the

non-movant,

it

will

disregard

conclusory

allegations,

unsupported speculation and improbable inferences. See Johnson v.
Duxbury,

Massachusetts,

931

F.3d

102,

105

(1st

Cir.

2019).

Moreover, the existence of “some alleged factual dispute between
the parties will not affect an otherwise properly supported motion
for summary judgment.” Scott v. Harris, 550 U.S. 372, 379 (2007)
(quotation omitted). Hence, a court should review the record in
its entirety and refrain from making credibility determinations or

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4

weighing the evidence. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 135 (2000).
In this District, summary judgment is also governed by Local
Rule 56. See L. CV. R. 56(c). Per this Rule, an opposing party
must “admit, deny or qualify the facts supporting the motion for
summary judgment by reference to each numbered paragraph of the
moving party’s statement of material facts.” Id. Furthermore,
unless the fact is admitted, the opposing party must support each
denial or qualification with a record citation. Id.
Responses which “do not oppose the truth of the statement
offered and are either irrelevant to the matter at hand, provide
additional evidence not related to the fact in question and/or
failed to contradict it” are insufficient to properly controvert
a material fact. See Aztar Corp. v. N.Y. Entertainment, LLC, 15
F.Supp.2d 252, 254 n. 1 (E.D.N.Y. 1998), aff'd. 210 F.3d 354 (2d
Cir.

2000) (noting

that

responses

only

averring

a

“lack

of

knowledge or information sufficient to either admit or deny [a
fact]” did not create an issue of fact).
Additionally, Local Rule 56(c) allows an opposing party to
submit additional facts “in a separate section.”

L. CV. R. 56(c).

Given that the plain language of Local Rule 56(c) specifically
requires that any additional facts be stated in a separate section,
parties

are

prohibited

from

incorporating

numerous

additional

facts within their opposition. See Natal Pérez v. Oriental Bank &

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5

Trust, 291 F. Supp. 3d 215, 218-219 (D.P.R. 2018) (quoting Carreras
v. Sajo, Garcia & Partners, 596 F.3d 25, 32 (1st Cir. 2010) and
Malave–Torres v. Cusido, 919 F.Supp. 2d 198, 207 (D.P.R. 2013)).
If a party opposing summary judgment fails to comply with
Local Rule 56(c)’s strictures, “a district court is free, in the
exercise of its sound discretion, to accept the moving party's
facts as stated.” Caban Hernandez v. Philip Morris USA, Inc., 486
F.3d 1, 7 (1st Cir. 2007). Thus, litigants ignore this rule at
their peril. See Natal Pérez, 291 F. Supp. 3d at 219 (citations
omitted).
III. FINDINGS OF FACT
To make findings of fact, the Court analyzed Defendant’s
Statement

of

Undisputed

Material

Facts

(Docket

No.

63),

Plaintiffs’ Statement in Opposition to Defendants Statement of
Undisputed Material Facts (Docket No. 71), as well as the totality
of the record, including the Complaint (Docket No. 1). After only
crediting material facts that are properly supported by a record
citation to admissible evidence and are uncontroverted, the Court
makes the following findings of fact:
1.

In 2014, Mr. Noel Martínez-Marrero (“Martínez-Marrero” or
the “Patient”) was a sixty-six (66) year-old veteran with
a

history

of

chronic

liver

disease

pressure. (Docket Nos. 63 ¶ 12; 1 ¶ 9).

and

high

blood

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Civil No. 16-2430 (RAM)
2.

6

On October 17, 2014, Mr. Martínez-Marrero went to the VA
Hospital

because

of

abdominal

pain,

general

malaise,

headache and vomiting. (Docket No. 1 ¶¶ 9-10).
3.

On October 18, 2014, Mr. Martínez-Marrero was admitted to
the VA Hospital due to his advanced chronic liver disease,
obstructive jaundice, and suspected upper GI bleeding and
left femoral fracture. (Docket No. 71-1 at 7-9).

4.

According to his medical records, Mr. Martinez-Marrero’s
medical

history

included

the

following

conditions:

Hypertension; Thrombocytopenia (active/chronic); Chronic
Hepatitis

C;

Chronic

Hepatitis

B;

Diabetes

Mellitus;

Hypertrophy (benign) of Prostate with urinary retention;
Subdural Hematoma following injury; Depressive Disorder;
Anemia (active/chronic); Schizophrenia (Undifferentiated
Type); Carcinoid Syndrome; Cocaine abuse (in remission);
Heroin

Dependence

(in

remission);

Cholelithiasis;

Diverticulosis Colonic; Impotence (organic origin); Low
back pain; a closed supracondylar fracture of femur;
Impaired wheelchair motility. (Docket No. 71-4 at 1-7).
5.

Mr. Martinez-Marrero suffered from the listed chronic
conditions long before October 2014 when he visited the
VA Emergency Room. (Docket No. 63 ¶ 22).

6.

During his hospitalization, on October 19, 2014, Mr.
Martínez-Marrero fell. (Docket No. 71 ¶ 13).

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Civil No. 16-2430 (RAM)
7.

While

at

the

7
VA

Hospital,

Mr.

Martínez-Marrero’s

platelets were lowering and reached the following levels:
October
October
October
October
October
October
October

18,
20,
21,
22,
23,
25,
26,

2014:
2014:
2014:
2014:
2014:
2014:
2014:

75
82
70
68
65
63
54

L
L
L
L
L
L
L

(Docket Nos. 71 ¶ 6; 71-4 at 946-948).
8.

Mr.

Martínez-Marrero’s

platelets

were

not

corrected.

(Docket No. 71-3 at 60-61).
9.

While

hospitalized,

Mr.

Martínez-Marrero

was

on

Vancomycin for six (6) days, starting October 22, 2014
until October 28, 2014. (Docket No. 71 ¶ 19).
10. Mr. Martinez-Marrero remained at the VA Hospital until
October 29, 2014, when he was found unresponsive by the
nursing staff and subsequently pronounced dead. (Docket
No. 63 ¶ 16; 71-4 at 8).
11. The “Summary of Death Note” dated October 29, 2014 in the
medical records states that Mr. Martínez-Marrero’s had
previously decided that he wanted “no resuscitation or
intubation, he was aware of his critical condition.”
(Docket No. 71-1 at 6).
12. On August 3, 2016, Mr. Martínez-Marrero’s daughters and
son

(collectively

“Plaintiffs”)

filed

an

action

for

emotional and physical damages against the United States

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8

of America pursuant to the Federal Torts Claims Act, Title
28 U.S.C. Sections 1346 (b), 2671, et. seq. (Docket No.
63 ¶¶ 1, 11).
13. Plaintiffs claimed that Mr. Martínez-Marrero’s death was
wrongful

and

caused

by

the

negligence

and

medical

malpractice of the VA Hospital that treated him. Id. ¶ 2.
14. On December 12, 2016, the United States of America denied
all acts of negligence in their Answer to Plaintiffs’
Complaint denying all acts of negligence. Id. ¶ 3.
15. In

her

deposition,

Defendant’s

expert

witness

Dr.

Anibelle Altieri-Ramirez (“Dr. Altieri”), testified that
individuals with thrombocytopenia, such as the Patient,
have an increased risk of bleeding depending on the values
of their platelets. (Docket Nos. 71 ¶¶ 14-15; 71-3 at
73).
16. Pathologist

Jose

Torres-Rivera

testified

at

his

deposition that he found five sites of contusions in Mr.
Martínez-Marrero’s body, which imply bleeding, but did
not measure the amount of bleeding. (Docket Nos. 71 ¶ 23;
71-6 at 79-80).
17. Plaintiffs retained Dr. José R. Ortiz-Feliciano (“Dr.
Ortiz-Feliciano”)
about

Mr.

as

their

expert

Martínez-Marrero’s

witness

cause

of

to

testify

death,

the

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9

applicable medical standards and the deviations of care
by VA Hospital. (Docket No. 63 ¶ 4).
18. Dr. Ortiz-Feliciano’s expert witness report and proffered
testimony were excluded by the Court. Id. ¶ 9.
IV. APPLICABLE LAW
The Federal Torts Claims Act (“FTCA”) provides that district
courts:
[H]ave exclusive jurisdiction of civil actions on
claims against the United States, for money
damages, […] for injury or loss of property, or
personal injury or death caused by the negligent or
wrongful act or omission of any employee of the
Government while acting within the scope of his
office or employment, under circumstances where the
United States, if a private person, would be liable
to the claimant in accordance with the law of the
place where the act or omission occurred.
28

U.S.C.A.

§

1346(b)(1)

(emphasis

added).

Accordingly,

“[c]ourts have interpreted that ‘the law of the place where the
act or omission occurred’ means that the federal court must apply
the ‘whole law’ that a state court would apply in an analogous
tort action.” Zabala-Calderon v. United States, 616 F. Supp. 2d
195, 199 (D.P.R. 2008). In the case at bar, the alleged medical
malpractice occurred in Puerto Rico. Therefore, the Court must
determine

whether

negligence,

and

thus

liability,

occurred

pursuant to Puerto Rico law.
In medical malpractice cases under Puerto Rico law, the
plaintiff must prove three key elements: “(1) the duty owed (i.e.,

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10

the minimum standard of professional knowledge and skill required
in

the

relevant

circumstances);

(2)

an

act

or

omission

transgressing that duty; and (3) a sufficient causal nexus between
the breach and the harm.” Laureano Quinones v. Nadal Carrion, 2018
WL 4057264, at *2–3 (D.P.R. 2018) (quoting Marcano Rivera v. Turabo
Medical Ctr. P’ship, 415 F.3d 162, 167 (1st Cir. 2005)).
In these cases, the duty-owed by physicians is that they must
comply with the national standard of care. See Cortes-Irizarry v.
Corporacion Insular De Seguros, 111 F.3d 184, 190 (1st Cir. 1997);
See also Rojas-Ithier v. Sociedad Espanola de Auxilio Mutuo y
Beneficiencia de Puerto Rico, 394 F.3d 40, 43 (1st Cir. 2005). In
other words, 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)). Notably, there is a presumption
that

“physicians

have

‘provided

an

appropriate

level

of

care.’” Laboy-Irizarry v. Hosp. Comunitario Buen Samaritano, Inc.,
2019 WL 3311270, at *9 (D.P.R. 2019) (quoting Borges ex rel.
S.M.B.W.

v.

Serrano-Insern,

605

F.3d

1,

7

(1st

Cir.

2010))

(emphasis added). Thus, plaintiffs must refute this presumption by
“adducing evidence sufficient to show both the minimum standard of

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11

care required and the physician’s failure to achieve it.” Id.
(emphasis added).
On the other hand, causation under Puerto Rico law is ruled
by the “adequate causation” doctrine. An adequate cause “is not
every

condition

without

which

a

result

would

not

have

been

produced, but that which ordinarily produces it according to
general

experience.” Laboy-Irizarry,

2019

WL

3311270,

at

*9

(quoting Cardenas Maxan v. Rodriguez Rodriguez, 125 P.R. Dec. 702,
710 (1990), P.R. Offic. Trans.). In other words, “[a] condition is
an adequate cause if it ordinarily can be expected to produce the
result at issue.” Ganapolsky v. Boston Mut. Life Inc. Co., 138
F.3d 446, 443 (1st Cir. 1998) (emphasis added).
The Puerto Rico Supreme Court and the First Circuit have
repeatedly held that expert testimony is required in medical
malpractice

suits

to

both

prove

causation

and

to

refute

the

presumption that adequate care was provided. For example, in
Marcano Rivera v. Turabo Medical Center Partnership, the First
Circuit

explained

that

“a

factfinder

normally

cannot

find

causation [a breach of the duty owed] without the assistance of
expert testimony to clarify complex medical and scientific issues
that are more prevalent in medical malpractice cases than in
standard negligence cases.” Marcano Rivera v. Turabo Medical Ctr.
P’ship, 415 F.3d 162, 167 (1st Cir. 2005)) (quoting Rojas-Ithier,
394 F.3d at 43); see also Cruz-Vazquez v. Mennonite General Hosp.,

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Civil No. 16-2430 (RAM)

12

Inc., 613 F.3d 54, 56 (1st Cir. 2010); Pages- Ramirez v. RamirezGonzalez, 605 F.3d 109, 113 (1st Cir. 2010). In the same vein, and
as advanced above, this District has held that expert testimony is
necessary to prove both the applicable standard of care and a
doctor’s failure to meet it. See Vargas-Alicea v. Cont'l Cas. Co.,
2019 WL 1453070, at *1 (D.P.R. 2019) (citing Rolón-Alvarado v. San
Juan, 1 F.3d 74, 78 (1st Cir. 1993)) (“Given that medical knowledge
is critical to demonstrating the parameters of a health-care
provider’s duty, the minimum standard of acceptable care is almost
always a matter of informed opinion.”). Accordingly, although
striking a plaintiff’s expert is “technically not a dismissal of
[Plaintiff’s] case, [it can] effectively amoun[t] to one” because
“Plaintiff is unable to present any expert opinion sufficient to
establish either the Defendants' duty of care or a breach of the
duty owed.” Gonzalez Rivera v. Hosp. HIMA-Caguas, 2018 WL 4676925,
at *5 (D.P.R. 2018), aff'd sub nom. Gonzalez-Rivera v. Centro
Medico Del Turabo, Inc., 931 F.3d 23 (1st Cir. 2019) (internal
citations omitted) (quoting Esposito v. Home Depot, U.S.A., Inc.,
590 F.3d 72, 78 (1st Cir. 2009)).
Despite the above, there are few exceptions where expert
testimony
malpractice

is

not

suits.

necessary
This

to

occurs

prove
in

causation

“situations

in
where

medical
common

knowledge and experience are all that is necessary to comprehend
a defendant's negligence […], or where negligence is grossly

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13

apparent, […] or where a doctor's conduct violates a set standard.”
Rolón-Alvarado v. San Juan, 1 F.3d 74, 79 (1st Cir. 1993). This
means that the exceptions must encompass “only those few situations
in which the claimed medical malpractice is sufficiently blatant
or

patent

that

lay

persons,

relying

on

common

knowledge

and

experience, can legitimately recognize or infer negligence.” Id.
Lastly,

under

Puerto

Rico

law,

a

hospital

can

be

held

vicariously “liable to its patients for malpractice when there has
been negligence on the part of the hospital's employees.” Morales
v. Monagas, 723 F. Supp. 2d 416, 419 (D.P.R. 2010) (citation
omitted). Article 1803 of the Puerto Rico Civil Code governs the
vicarious liability doctrine and establishes that “[o]wners or
directors of an establishment or enterprise are likewise liable
for any damages caused by their employees in the service of the
branches in which the latter are employed or on account of their
duties.” P.R. Laws Ann. tit. 31, § 5142. In other words, if
hospital staff is found to have committed medical malpractice, the
hospital would be vicariously liable to the injured party.
V. ANALYSIS
This
because

Court
the

struck

report

Plaintiffs’

was

proffered

conclusory,

lacked

expert
key

testimony
data,

and

fundamentally failed to articulate a national standard of care.
(Docket No. 46). This Court also denied Plaintiffs’ Motion for
Reconsideration on this same issue. (Docket Nos. 48 and 51).

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14

Furthermore, Plaintiffs have not provided any additional evidence
or material facts to show medical malpractice.
Accordingly, this Court concludes that summary judgment is
proper

because

without

expert

testimony,

Plaintiffs

cannot

establish any of the necessary elements of a medical malpractice
claim under Puerto Rico law, namely: (1) the VA Hospital’s duty of
care; (2) that a breach to said duty occurred; and (3) that the
breach

caused

Mr.

Martínez-Marrero’s

unfortunate

demise.

See

Laureano Quinones, 2018 WL 4057264, at *2–3. Plaintiffs allege
that Mr. Martínez-Marrero’s death was caused by severe bleeding
that occurred because his platelet levels were not monitored and
corrected. (Docket No. 72 at 12-13). It is uncontested that Mr.
Martínez-Marrero’s platelets were dropping and were not corrected
(Facts ¶¶ 7-8). However, expert testimony is necessarily required
to assist the finder of fact with understanding the appropriate
platelet

amount

for

someone

with

Mr.

Martínez-Marrero’s

conditions, what steps should have been taken and when to address
the

low

platelets

platelet
was

the

count,

as

adequate

well
cause

as
of

whether
the

the

decrease

Patient’s

death

in
as

Plaintiffs suggest. See Marcano Rivera, 415 F.3d at 167.
Notably, the case at bar does not fall within the narrow
exception to this rule. Any potential negligence in this case is
not “grossly apparent” or otherwise discoverable through mere
common knowledge and experience. Rolón-Alvarado, 1 F.3d at 79.

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15

Moreover, the Court considers that lay persons would be unable to
infer

causation

without

the

assistance

of

expert

testimony,

especially considering Mr. Martínez-Marrero’s advanced chronic
liver disease, among other conditions. (Facts ¶¶ 4-5).
In

Rodriguez-Diaz

v.

Seguros

Triple-S,

Inc.,

the

First

Circuit upheld a district court’s summary judgment ruling in a
medical malpractice case after the lower court had excluded the
expert report and plaintiffs had not presented any other evidence
to

“establish

that

the

care

afforded

did

not

meet

minimal

standards” Rodriguez-Diaz v. Seguros Triple-S, Inc., 636 F.3d 20,
23-24 (1st Cir. 2011). Specifically, the Rodriguez-Diaz Court held
that:
Absent an expert witness, […] it would be hard for
the jury to know anything about relative urgency or
any need for differentiation on some other basis—
let alone how the patient's specific symptoms or
the slide results in this case might bear upon the
question. […] [T]he appeal fails because there is
a legal rule requiring expert testimony in a case
of this character, and possible exceptions [such as
the jury using common sense to close the gap] to
the rule have not been shown to apply.
Id. at 24. Similarly, another Judge in this District ultimately
granted summary judgment after determining that preclusion of
expert

testimony

made

it

impossible

to

evince

the

necessary

elements of causation in a medical malpractice case. See Gonzalez
Rivera, 2018 WL 4676925, at *5. In the present case, Plaintiffs
themselves

have

acknowledged

that

“the

exclusion

of

[their]

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Civil No. 16-2430 (RAM)
expert,

technically

16

constitutes

the

dismissal

of

the

case.”

(Docket No. 48 at 1).
In light of the above, and in the absence of medical expert
testimony, Plaintiffs cannot refute the presumption that the VA
Hospital “provided an appropriate level of care.” See Borges ex
rel. S.M.B.W., 605 F.3d at 7. Consequently, this Court finds that
it cannot infer for purposes of summary judgment that the VA
Hospital’s

purported

negligence

monitoring

platelets

was

the

adequate cause of Mr. Martínez-Marrero’s death. As the First
Circuit has cautioned, “an inference is reasonable only if it can
be derived from the evidence without resort to speculation.”
Hidalgo v. Overseas Ins. Agency, 120 F.3d 328, 332 (1st Cir. 1997).
VI. CONCLUSION
Due
inability

to
to

the

absence

show

that

of
the

expert
VA

testimony

Hospital

and

staff’s

Plaintiffs’
conduct

was

sufficiently blatant or patent that a lay person could infer that
negligence caused Mr. Martínez-Marrero’s death, the Court GRANTS
Defendant’s Motion for Summary Judgment at Docket No. 62. Judgment
shall be entered accordingly.
IT IS SO ORDERED.
In San Juan Puerto Rico, this 26th day of August 2020.
S/ RAÚL M. ARIAS-MARXUACH
United States District Judge