Santa-Cruz-Bacardi et al v. Metro Pavia Hospital, Inc. et al
Filing
103
ORDER granting in part and denying in part 64 Motion in Limine. Signed by Judge Raul M. Arias-Marxuach on 7/26/19. (mrr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JUAN A. SANTA CRUZ-BACARDI, et
al.
Plaintiffs
vs.
METRO PAVIA HOSPITAL, INC, et al.
CIVIL NO: 16-02455
(RAM)
Defendants
OPINION AND ORDER
Pending before the Court is codefendant Dr. Maximo Blondet
Passalacqua’s “Motion in Limine To Preclude Plaintiffs Expert, Dr.
Ian W. Cummins From Testifying That Dr. Maximo Blondet Passalaqua
Is Liable to Plaintiffs Pursuant to Daubert And Kumho Federal Rule
26(A)(2)(B) Standards and Puerto Rico Jurisprudence.” (Docket No.
64.)1 After considering said Motion, “Plaintiffs’ Response in
Opposition to Codefendant Dr. Máximo Blondet Passalacqua’s Motion
in Limine” (“Response in Opposition”) (Docket No. 74) and after
reviewing the applicable law, the Court GRANTS in part and DENIES
in part Defendant's Motion in Limine at Docket No. 64.
Dr. Cummings’ supplemental report and expected testimony as
to Dr. Maximo Blondet Passalacqua are inadmissible and excluded
1 Dr. Ian W. Cummings’ name is misspelled as “Cummins” in both the Motion in
Limine at Docket No. 64 and in Dr. Blondet’s Reply to Plaintiffs Response in
Opposition to Codefendant Maximo Blondet Passalaqua’s Motion in Limine (“Reply
to Plaintiff’s Opposition”) at Docket No. 80. (See Docket No. 64 and 80).
Civil No. 16-2455 (RAM)
2
from the record. The claims against Dr. Blondet are not dismissed
at this time.
I.
BACKGROUND
On August 7, 2016, Plaintiffs Mr. Juan Santa Cruz Bacardí and
Mrs. Mireya Santa Cruz Bacardí sued Dr. Gaspar Fuentes Mejía (“Dr.
Fuentes”) and Metro Pavía Hospital, Inc. d/b/a/ Hospital Pavia
Santurce alleging medical malpractice which led to the death of
their father, Mr. Juan Santa Cruz Sigarreta (“Mr. Santa Cruz
Sigarreta”).2 (Docket No. 1 at 5-6). Dr. Maximo Blondet Passalacqua
(“Dr. Blondet”) was included as a Defendant in the Second Amended
Complaint filed on August 11, 2017. (Docket No. 27). Defendants
Dr. Fuentes and Hospital Pavia Santurce answered the Complaint
denying the allegations. (Docket Nos. 12 and 13).3 On November 4,
2017, Dr. Blondet filed an answer denying all allegations. (Docket
No. 40). In his Motion in Limine, Dr. Blondet asks the Court that:
(1) Dr. Ian W. Cummings not be allowed to testify as to him at
trial, and (2) the Court dismiss with prejudice Plaintiffs’ claims
against him.
II.
LEGAL STANDARD
2
The Court notes that Plaintiffs filed a “Motion for Partial Voluntary
Dismissal, with Prejudice, due to Settlement,” requesting that the Court issue
a partial judgement due to voluntary dismissal, with prejudice, in favor of
Defendant Metro Santurce, Inc., d/b/a Hospital Pavía Santurce. (Docket No. 52)
The Motion for Voluntary Dismissal was GRANTED pursuant to Docket No. 53.
Civil No. 16-2455 (RAM)
3
A. Daubert Standard
In Daubert v. Merrell Dow Pharms, Inc., the Supreme Court of
the United States explained that a trial judge serves a gatekeeper who guarantees that an expert’s testimony “rests on a
reliable foundation and is relevant to the task at hand.” Daubert
v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993); see also
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49 (1999) (holding
that Daubert applies to all expert testimony).
The admission of expert testimony is governed by Rule 702 of
the Federal Rules of Evidence which reads as follows:
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:
(1) 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;
(2) the testimony is based upon sufficient facts or
data,
(3) the testimony is the product of reliable
principles and methods, and
(4) the witness has applied the principles and
methods reliably to the facts of the case.
Moreover, if a witness is relying mainly on experience, he
must provide more information for the Court to determine the
reliability of his testimony. The First Circuit Court of Appeals
(“First Circuit”) has been adamant that “[a]s 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 cross-examination-rather than excluded
Civil No. 16-2455 (RAM)
4
from jurors' scrutiny for fear that they will not grasp its
complexities or satisfactorily weigh its inadequacies.” RuizTroche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 80, 85
(1st Cir. 1998) (internal quotation marks and citations omitted).
As another Judge in this District put it, “[p]roponents ... do not
have to demonstrate that the assessments of their experts are
correct, only that their opinions are reliable.” Rivera v. Centro
Medico del Turabo, Inc., 2017 WL 4122607, at *3 (D.P.R. 2017)
(quoting Rivera-Cruz v. Latimer, Biaggi, Rachid & Godreau, LLP,
2008 WL 2446331, at *2 (D.P.R. 2008)).
To testify as an expert, a medical doctor need not be a
specialist within the field which he is to testify about. See,
e.g.,
Gaydar
v.
Sociedad
Instituto
Gineco-Quirurgico
y
Planificacion, 345 F.3d 15, 24 (1st Cir. 2003). (“The proffered
expert physician need not be a specialist in a particular medical
discipline
to
render
expert
testimony
relating
to
that
discipline.”); See also Mitchell v. United States, 141 F.3d 8 (1st
Cir.
1998)(an
internist
with
specialties
in
hematology
and
oncology, could testify as to physicians' treatment of colonoscopy
patient in wrongful death suit, even though he was not a specialist
in gastroenterology). The First Circuit has also clarified that
board certifications do not always correlate with an expert’s
testimony being admitted into evidence. See e.g., Pages-Ramirez v.
Ramirez-Gonzalez, 605 F.3d 109, 113–14 (1st Cir. 2010). Rather,
Civil No. 16-2455 (RAM)
5
allowing its exclusion in that scenario would lead to an abuse of
discretion by the lower court. See Gaydar, 345 F.3d at 24–25
(internal citations omitted).
B. FED R. CIV. P. 26(a)(2)(B)
Apart from conforming to Fed. R. Evid. 702, expert witness
testimony must also conform to Rule 26 of the Federal Rules of
Civil Procedure. This Rule compels parties to disclose any witness
they can expect to use at trial under Fed. R. Evid. 702. Per
Subsection (2)(B) of Fed. R. Civ. P. 26, this also applies to
witnesses’ written reports. Said section reads as follows:
(2) Disclosure of Expert Testimony.
. . .
(B) Witnesses Who Must Provide a Written Report. Unless
otherwise stipulated or ordered by the court, this
disclosure must be accompanied by a written report-prepared and signed by the witness--if the witness is
one retained or specially employed to provide expert
testimony in the case or one whose duties as the
party's employee regularly involve giving expert
testimony. The report must contain:
(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.
Civil No. 16-2455 (RAM)
6
Fed.R.Civ.P. 26(a)(2)(B). Failure to comply with Fed. R. Civ. P.
26 may preclude a party from utilizing the witness or expert
testimony at a hearing, on a motion or at trial. It may even imply
sanctions against the offending party pursuant to Fed. R. Civ. P.
37(c)(1).
This
occurs
“unless
the
failure
was
substantially
justified or is harmless.” Gay v. Stonebridge Life Ins. Co., 660
F.3d 58, 62 (1st Cir. 2011).
In medical malpractice suits, the plaintiff must submit an
expert report including “all of the opinions that the expert will
express at trial and the reasons for them.” Esposito v. Home Depot
U.S.A., Inc., 590 F.3d 72, 77 (1st Cir. 2009); see also Gonzalez
Rivera v. Hospital HIMA-Caguas, 2018 WL 4676925, at *3 (D.P.R.
2018). It must be a “‘detailed and complete’ [report]. ... [And]
include the substance of the testimony ... expected to give on
direct examination.” Salgado by Salgado v. General Motors Corp.,
150 F.3d 735, 741 n. 6 (D.P.R. 1998) (internal citations omitted).
C. Standard of Care and Medical Malpractice in Puerto Rico
In medical malpractice cases in Puerto Rico, a plaintiff must
assert three main elements: “(1) the duty owed (i.e., 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.
Civil No. 16-2455 (RAM)
7
P’ship, 415 F.3d 162, 167 (1st Cir. 2005)). The standard of care
imposed on doctors is based on a national standard. Rojas-Ithier
v. Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto
Rico, 394 F.3d 40, 43 (1st Cir. 2005). Puerto Rico courts define
the national standard of care owed to patients as “[t]hat [level
of care] which, recognizing the modern means of communication and
education,
...
meets
the
professional
requirements
generally
acknowledged by the medical profession.” Marcano Rivera v. Turabo
Med. Ctr. P'ship, 415 F.3d 162, 167–68 (1st Cir. 2005) (quoting
Oliveros v. Abreu, 101 P.R. Dec. 209, 266 (1973)).
In Puerto Rico “a health-care provider ‘is presumed to have
exercised reasonable care in the discharge of his functions.’”
Lopez-Rivera v. Hosp. Auxilio Mutuo, Inc., 290 F. Supp. 3d 137,
142 (D.P.R. 2017) (quoting Lopez–Rivera, 247 F.Supp.3d 185, 186
(D.P.R. 2017)). Hence, plaintiffs bear the burden of refuting that
presumption of abiding by the national standard care. To refute
the presumption, plaintiffs typically use expert testimony as case
law states that it will aid in determining causation and a standard
of care. See Rolon-Alvarado v. Municipality of San Juan, 1 F.3d
74, 78 (1st Cir. 1993) (“Because medical knowledge and training
are critical to demonstrating the parameters of a physician's duty,
the minimum standard of acceptable care […] must ordinarily be
established by expert testimony.”)
III.
ANALYSIS
Civil No. 16-2455 (RAM)
8
Among other things, Dr. Blondet’s Motion in Limine argues
that: (1) Dr. Cummings’ testimony is unreliable because he lacks
experience in the field of internal medicine; (2) the report lacks
references to medical literature, and (3) his testimony just
includes his “conclusory statements” which are insufficient to
prove Dr. Blondet’s negligence. All but the first of the foregoing
arguments pass muster.
The Court begins by addressing Dr. Blondet’s argument that
Dr.
Cummings’
pulmonologist.
testimony
Dr.
is
Blondet
unreliable
highlights
because
that
Dr.
he
is
not
Cummings
a
has
practiced Emergency Medicine for the past twenty-five (25) years
and took the board examinations for Internal Medicine in 1988.
(Docket No. 64 at 17). This argument is meritless. The First
Circuit has made clear that a “proffered expert physician need not
be a specialist in a particular medical discipline to render expert
testimony relating to that discipline.”) Gaydar, 345 F.3d at 24.
While Dr. Cummings is qualified as a medical expert to opine on
Dr. Blondet, Dr. Fuentes and Hospital Pavia Santurce’s role in the
death of Mr. Santa Cruz Sigaretta, the supplemental report still
fails to comply with Fed. R. Evid. 702 and Fed. R. Civ. P. 26.
The Court turns to Dr. Blondet’s argument that Dr. Cummings’
report “is totally devoid of medical literature to support his
opinions.” (Docket No. 64 at 30). In their Response in Opposition,
Plaintiffs state that Dr. Blondet’s attorneys admitted during Dr.
Civil No. 16-2455 (RAM)
9
Cummings’
deposition
that
Dr.
Cummings
did
reference
medical
literature in his report. (Docket No. 82-2 at 60-61). For example,
Dr. Blondet’s Motion in Limine stated that Dr. Cummings cites an
article addressing NT BNP, a blood exam relating to cardiac
conditions and not pulmonary conditions. (Docket No. 64 at 17-19,
29). A thorough reading of the report demonstrates that Dr.
Cummings did cite articles such as these, alongside tables provided
by Hospital Pavia Santurce related to how NT BNP levels are
calculated, to demonstrate why the deceased’s symptoms warranted
more
cardiopulmonary
evaluation.
(Docket
No.
64-4
at
8).
Additionally, Dr. Cummings report does cite another source: a
medical
journal
radiography
article
results
in
titled
the
“Prevalence
emergency
of
negative
department
patient
chest
with
decompensated heart failure” (Ann Emerg Med. 2006 Jan;47(1):13-8.
Epub 2005 Jun 20). (Docket No. 64-4 at 9).
The fact that Dr. Cummings’ report cites two items of medical
literature does not mean it meets Fed. R. Evid. 702’s requirements
as to Dr. Blondet. Dr. Cummings’ report fails to tie the articles
he mentions to Dr. Blondet’s actions or omissions and fails to
explain how they serve to establish that Dr. Blondet provided
negligent care to Mr. Santa Cruz Sigarreta. See e.g., Baker v.
Chevron USA, 680 F. Supp. 865, 878 (S.D. Ohio 2010) (concluding
that an expert report was inadequate because expert witness made
no effort to connect the medical literature to expert’s opinions).
Civil No. 16-2455 (RAM)
10
Thus, While Dr. Cummings’ report included medical literature and,
on the surface, seems to rest upon “good grounds,” the medical
literature cited does not assist in the “trier of fact to …
determine a fact in issue.” The First Circuit is clear when it
states that “[e]xpert testimony that consists of legal conclusions
cannot properly assist the trier of fact.” Nieves-Villanueva v.
Soto-Rivera, 133 F.3d 92, 100 (1st Cir. 1997) (internal quotations
omitted). Moreover, the United States Supreme Court has stated
that “nothing in either Daubert or the Federal Rules of Evidence
requires a district court to admit opinion evidence that is
connected to existing data only by the ipse dixit of the expert.”.
Smith v. Jenkins, 732 F. 3d 51 (1st Cir. 2013) (quoting General
Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (internal quotations
omitted). On the contrary, a trial court can “conclude that there
is simply too great an analytical gap between the data and the
opinion proffered.” Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d
1183, 1194 (11th Cir. 2010) (quoting General Elec. Co., 522 U.S.
at 146). Here, that analytical gap is evident.
Similarly, to prevail in the case, Plaintiffs bear the burden
of
establishing:
(1)
the
duty
that
Dr.
Blondet
owed
to
the
deceased; (2) an act or omission on his part disobeying that duty;
and (3) a sufficient causal nexus between the breach and the harm.
Dr. Blondet’s Motion in Limine states that Dr. Cummings’ testimony
does not produce “a single valid medical standard to support the
Civil No. 16-2455 (RAM)
11
alleged failures by Dr. Blondet. His statements are just his own
unsupported thoughts.” (Docket No. 64 at 30). As support, Dr.
Blondet cites Rolon-Alvarado v. Municipality of San Juan, which
states that “[p]rofessional standards require normative judgments,
not merely proof that a better way to treat a particular patient
could have been devised.” Rolon-Alvarado, 1 F.3d at 78. To wit,
the Advisory Committee Notes as to Fed. R. Evid. 702 explain that
if “the witness is relying solely or primarily on experience, then
the
witness
must
explain
how
that
experience
leads
to
the
conclusion reached, why that experience is a sufficient basis for
the opinion, and how that experience is reliably applied to the
facts.” Here, Dr. Cummings’ report clearly fails to establish how
he reached the conclusions he did regarding standards of care.
In their Response in Opposition, Plaintiffs posit that Dr.
Cummings did elaborate on the deviations of standard of care in
his testimony. Plaintiffs cite multiple pages of Dr. Cummings’
testimony where he allegedly explained the standard of care related
to the abandonment of patients, which they believe Dr. Blondet
did. (Docket No. 74 at 15-20 and Docket 82-2 at 101-106, 130).
Plaintiffs also contend in their Sur Reply that Dr. Blondet ignores
their
arguments
about
the
standard
of
care
in
his
Reply
to
Plaintiff’s Opposition. (Docket No. 84 at 3).
While the First Circuit and the District Court case law
support the finding that a doctor testifying as an expert witness
Civil No. 16-2455 (RAM)
12
may sometimes imply a standard of care in their testimony without
articulating the “magic words”, this is not the case at hand. See
Cortes-Irizarry v. Corporacion Insular De Seguros, 111 F.3d 184,
190 (1st Cir. 1997) (holding that references to a “prevailing
medical
standard”
used
by
the
“average
gynecologist”
was
sufficient to establish a standard of care). In this case, no such
statements were made in Dr. Cummings’ testimony which would lead
the Court to a similar conclusion. The closest Dr. Cummings’ report
arrives at delineating a national standard is when he explains in
his deposition what “most pulmonologists” or “good pulmonologists”
do when caring for patients, but he still fails to articulate a
general medical standard of care, let alone a national one. (Docket
No. 82-2 at 143-44). Dr. Cummings’ experiences alone are therefore
inadequate to demonstrate a standard of care. See e.g., Hendrix ex
rel. G.P., 609 F.3d at 1201 (“Hendrix attempts to sidestep the
deficiencies in the medical literature by focusing on Dr. Hoffman's
experience and training. Merely demonstrating that an expert has
experience, however, does not automatically render every opinion
and statement by that expert reliable.”)
Further, experts must prove that a standard of care is
nationally used, rather than simply explaining a standard as based
on their experience. They can do so by referencing “a published
standard, [discussion] of the described course of treatment with
practitioners outside the District ... at seminars or conventions,
Civil No. 16-2455 (RAM)
13
or through presentation of relevant data.” Strickland v. Pinder,
899 A.2d 770, 773–74 (D.C. 2006) (internal citations omitted));
see also Vargas-Alicea v. Continental Casualty Company, 2019 WL
1453070, at *2 (D.P.R. 2019) (“Dr. Benabe’s report is silent on
these parameters. And while his report mentions publications in a
footnote, it does not relate the content of those publications to
whether the relevant course of treatment is followed nationally as
required by law.”); Porter v. McHugh, 850 F. Supp. 2d 264, 268
(D.D.C. 2012)(quoting Strickland, 899 A.2d at 774)(“Where the
expert makes ‘no attempt to link his testimony to any certification
process, current literature, conference or discussion with other
knowledgeable
professionals,’
there
is
no
“basis
for
his
discussion of the national standard of care.”)
Dr. Cummings’ report, as stated earlier, does include some
medical literature, but it fails to link that literature to a
nationally-recognized standard of care which Dr. Blondet allegedly
violated. Thus, simply citing sources is insufficient. See, e.g.,
Conn v. United States, 880 F. Supp. 2d 741, 747 (S.D. Miss.
2012)(“Even if Dr. Strong had not failed to identify a specific
Guidelines publication, and … not failed to identify a specific
suggestion […], he still would have failed to state that the
conduct […] [which] marked the standard of care of a minimally
competent physician.”)
Civil No. 16-2455 (RAM)
14
Finally, Plaintiffs cite the District Court case CasillasSanchez v. Ryder Memorial Hospital, Inc. to demonstrate that the
fact
that
an
expert
did
not
include
medical
literature
is
insufficient to warrant exclusion of the expert’s report and that
an expert did testify as to a standard of care. See CasillasSanchez v. Ryder Mem'l Hosp., Inc., 14 F. Supp. 3d 22, 26 n. 5
(D.P.R. 2014) (The fact that the expert failed to “mention or
produce ‘any single piece of specific medical literature in order
to establish the alleged standard of care,’ […,] is utterly
insignificant. Federal Rules of Evidence 705 and 703 do not require
[that].”) However, like another recent District Court case, here
too, Plaintiffs’ reliance on Casillas-Sanchez is misplaced. See
Vargas-Alicea, 2019 WL 1453070, at *4 n.8. Casillas-Sanchez did
not address if an expert presented a national standard. Here, as
in Vargas-Alicea, that is the gist of the both Plaintiffs and
Defendants arguments and goes to the heart of whether Dr. Cummings’
report is reliable. Dr. Cummings failed to include a “standard of
care”,
national
or
otherwise,
in
his
testimony.
His
report
therefore fails to meet the standards set forth by Fed. R. Evid.
702 and Rule Fed. R. Civ. P. 26 and should be excluded.
Dr. Blondet requested that the Court dismiss the claim against
him “with prejudice for lack of evidence to establish allegations
of negligence against him” if the Motion in Limine was granted.
(Docket No.64 at 31). The Court denies this request. As Plaintiffs
Civil No. 16-2455 (RAM)
15
correctly pointed out, Dr. Blondet’s Motion in Limine fails to
meet the requirements of motion for summary judgment under Rule 56
of the Federal Rules of Civil Procedure. (Docket No.74 at 22-23).
And “[a] motion in limine is not the appropriate tool to move for
judgment on a particular claim.” Torres-Rivera v. Centro Medico
Del Turabo Inc., 215 F. Supp. 3d 202, 207 (D.P.R. 2016).
IV.
CONCLUSION
For the reasons stated above, Defendant’s Motion in Limine at
Docket No. 74 is GRANTED in part and DENIED in part. Dr. Cummings’
supplemental report and expected testimony as to Dr. Blondet are
inadmissible and excluded from the record. The claims against Dr.
Blondet are not dismissed at this time.
IT IS SO ORDERED.
In San Juan Puerto Rico, this 26th day of July 2019.
S/ RAÚL M. ARIAS-MARXUACH
United States District Judge
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