Lopez-Ramirez et al v. Grupo HIMA-San Pablo, Inc. et al

Filing 101

OPINION AND ORDER: The Court GRANTS the Motion for Summary Judgment at Docket No. 89 . Judgment of dismissal with prejudice shall be entered accordingly. Signed by Judge Raul M. Arias-Marxuach on 9/4/2020. (mrr)

Case 3:16-cv-03192-RAM Document 101 Filed 09/04/20 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

EULALIA LÓPEZ RAMÍREZ, et al.
Plaintiffs
CIVIL NO. 16-3192(RAM)

v.
GRUPO HIMA SAN PABLO, INC., et
al.
Defendants

OPINION AND ORDER
RAÚL M. ARIAS-MARXUACH, District Judge
Pending before the Court is codefendant Dr. Maria ToledoGonzalez’s Motion for Summary Judgment Incorporating Memorandum of
Law in Compliance with Local Rule 7(a) requesting the dismissal of
the present case. (Docket No. 89). Having reviewed the parties’
submissions in support and in opposition to the motion (Docket
Nos. 94-99), the Court GRANTS the Motion for Summary Judgment at
Docket No. 89. Judgment of dismissal with prejudice shall be
entered accordingly.
I. BACKGROUND
On December 23, 2016, Mrs. Eulalia López-Ramírez (“Mrs. López”)
and Mrs. Laura Cristina Gaudier-López (“Mrs. Gaudier”) (jointly,
“Plaintiffs”) sued Dr. María Toledo-Gonzalez (“Dr. Toledo”) and
Centro Médico del Turabo, Inc. d/b/a Hospital HIMA San Pablo Caguas

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2

(“HIMA”), amongst other defendants, alleging medical malpractice.
(Docket No. 1). 1 Specifically, after diagnosing Mrs. López with a
facial nerve disorder and right hemifacial spasm, Dr. Toledo
performed

a

right

retrosigmoid

craniotomy

and

microvascular

decompression surgery on her. (Docket No. 24 ¶¶ 11-17). While
Plaintiffs recognize the operative report stated that it was a
successful

operation,

their

Complaint

claims

that

inadequate

medical treatment provided by Dr. Toledo, HIMA, and its staff
“aggravated

[Mrs.

López’s]

simple

facial

spasm

and

caused

a

cerebral infarction, complete facial paralysis, complete hearing
loss, ataxia, vestibular dysfunction, imbalance, taste dysfunction
and visual dysfunction.” Id. ¶¶ 18-19; 32. Plaintiffs also allege
that Dr. Toledo and HIMA (jointly, “Defendants”) were grossly
negligent because they did not provide Mrs. López with adequate
neurological evaluation and treatment during her surgery and stay
at HIMA. Id. ¶ 34. Defendants deny they failed to meet the standard
of care. (Docket Nos. 16, 18 and 28).
Plaintiffs retained Dr. Allan Hausknecht (“Dr. Hausknecht”) as
their expert witness and proffered that he would testify as to
“his

1

review

of

the

pertinent

records,

the

standards

of

care

Plaintiffs filed three amended complaints identifying some of these
defendants, namely Bromedicon, Next Step Medical Co. Inc., and Gustavo J.
Nogales-Pérez, Dr. Toledo’s husband. (Docket Nos. 5, 8 and 20-1). Plaintiffs
then voluntarily dismissed their claims as to Dr. Toledo’s husband and their
conjugal partnership. (Docket Nos. 31 and 32). Per Plaintiffs’ request, the
Court also dismissed the case against Bromedicon, Inc., Next Step Medical Co.
Inc. and all unknown defendants. (Docket No. 85).

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3

applicable to this case, the defendant’s departures from such
standards, the causal relationship of these departures with the
damages sustained by Mrs. López, the contents of his expert report
and deposition, and the applicable medical literature.” (Docket
No. 49 at 37). On September 18, 2019, codefendant Dr. Toledo filed
a Motion in Limine requesting that the Court strike Dr. Hausknecht
as an expert. (Docket No. 64). On January 22, 2020, the Court
granted said motion and struck Dr. Hausknecht’s expert report for
failing to identify both a standard of care and Dr. Toledo’s
alleged deviation from the same. (Docket No. 87).
On February 12, 2020, Dr. Toledo filed a Motion for Summary
Judgment Incorporating Memorandum of Law in Compliance with Local
Rule 7(a) (“Motion for Summary Judgment” or “MSJ”) alongside a
Supporting Statement of Material Facts (“SMF”) (Docket Nos. 89 and
89-1). HIMA then filed a Motion for Joinder, incorporating by
reference the arguments set forth in the MSJ and SMF. (Docket No.
90 at 1-2). Further, the Motion for Joinder also stated that given
that Dr. Hausknecht’s report “makes no mention of any departures
of the standard of practice from any other physician nor hospital
personnel, the [MSJ] would equally apply to [HIMA]” and dismissal
of the present action was warranted. Id. at 2. The Motion for
Joinder was subsequently granted by this Court. (Docket No. 91).
Plaintiffs

opposed

the

MSJ

and

propounded

additional

facts

(“Opposition to MSJ”) (Docket Nos. 94 and 95). Dr. Toledo replied

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Civil No. 16-3192 (RAM)
to

the

opposition

4

(“Reply”)

followed

by

Plaintiffs’

response

(“Response”). 2 (Docket Nos. 98 and 99).
II. LEGAL STANDARD
A. Summary Judgment Standard under Fed. R. Civ. P. 56

Summary judgment is proper under Fed. R. Civ. P. 56(a) if a
movant shows “no genuine dispute as to any material fact” and that
they are “entitled to judgment as a matter of law.” A genuine
dispute exists “if the evidence about the fact is such that a
reasonable jury could resolve the point in favor of the non-moving
party.” Alicea v. Wilkie, 2020 WL 1547064, at *2 (D.P.R. 2020)
(quotation omitted). A fact is material if “it is relevant to the
resolution of a controlling legal issue raised by the motion for
summary judgment.” Bautista Cayman Asset Co. v. Terra II MC & P,
Inc., 2020 WL 118592, at *6 (D.P.R. 2020) (quotation omitted).
The party moving for summary judgment “bears the initial
burden of showing that no genuine issue of material fact exists.”
Feliciano-Munoz v. Rebarber-Ocasio, 2020 WL 4592144, at *6 (1st
Cir. 2020) (citation omitted). Whereas the non-movant may “defeat
a summary judgment motion by demonstrating, through submissions of
evidentiary quality, that a trialworthy issue persists.” Robinson
v. Town of Marshfield, 950 F.3d 21, 24 (1st Cir. 2020) (quotation
omitted).

2

However,

it

“cannot

merely

‘rely

on

an

absence

of

Plaintiffs alleged in their Response that Dr. Toledo failed to request leave
to file her Reply. (Docket No. 99 at 1). However, Dr. Toledo did file a leave
request which was then granted by this Court. (Docket Nos. 96 and 97).

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5

competent evidence, but must affirmatively point to specific facts
that

demonstrate

the

existence

of

an

authentic

dispute.’”

Feliciano-Munoz, 2020 WL 4592144, at *6 (quoting McCarthy v. Nw.
Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995)). Solely relying
on “conclusory allegations, improbable inferences, and unsupported
speculation” is insufficient to defeat summary judgment. River
Farm Realty Tr. v. Farm Family Cas. Ins. Co., 943 F.3d 27, 41 (1st
Cir. 2019) (quotation omitted).
Local Rule 56 also governs summary judgment. See L. CV. R.
56. Per this Rule, a nonmoving 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. The First Circuit has stated that adequately
supported facts “shall be deemed admitted unless controverted in
the

manner

prescribed

by

the

local

rule.”

Advanced

Flexible

Circuits, Inc. v. GE Sensing & Inspection Techs. GmbH, 781 F.3d
510, 520 (1st Cir. 2015) (quotation omitted). Hence, “litigants
ignore Local Rule 56 at their peril.” Calderón Amézquita v. Vices,
2019 WL 3928703, at *1 (D.P.R. 2019) (citation omitted).
B. Expert Testimony in Medical Malpractice Cases in Puerto Rico

The substantive law of Puerto Rico controls in a diversity
case. See Summers v. Fin. Freedom Acquisition LLC, 807 F.3d 351,
354 (1st Cir. 2015) (“Since this is a diversity case, we look to
federal law for guidance on procedural matters (such as the summary

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6

judgment framework) and to state law (here, [Puerto Rico] law) for
the substantive rules of decision.”). Thus, in Puerto Rico a
plaintiff in a medical malpractice case must prove three key
elements:

“(1)

professional

the

duty

knowledge

owed
and

(i.e.,

skill

the

minimum

required

in

standard
the

of

relevant

circumstances); (2) an act or omission transgressing that duty;
and (3) a sufficient causal nexus between the breach and the harm.”
Santa Cruz Bacardi v. Metro Pavia Hospital Inc., 2020 WL 249433,
at *6 (D.P.R. 2020) (quotation omitted). This duty owed, which is
the standard of care owed by physicians to their patient, is based
on a national standard. See Noel Martinez et al. v. United States
of

America,

2020

WL

5039242,

at

*4

(D.P.R.

2020)

(citation

omitted). Thus, “in the light of the modern means of communication
and education,” this duty must “meet[] the requirements generally
recognized

by

the

medical

profession.”

Id.

at

*4

(quotation

omitted). Moreover, considering that there is a presumption that
“physicians have ‘provided an appropriate level of care.’” LaboyIrizarry, 2019 WL 3311270, at *9 (quoting Borges ex rel. S.M.B.W.
v. Serrano-Insern, 605 F.3d 1, 7 (1st Cir. 2010)). Plaintiffs are
obligated to refute this presumption by proffering evidence which
shows the minimum required standard of care and the doctor’s
failure to achieve said standard. See Estrada v. United States,
2016 WL 4487740, *5 (D.P.R. 2016) (quotation omitted). Therefore,
absent proof of this duty owed “it is virtually impossible to prove

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7

either breach or proximate cause.” Vargas-Alicea v. Cont'l Cas.
Co., 2020 WL 3470325, at *3 (D.P.R. 2020) (quotation and internal
quotation marks omitted) (emphasis added).
To prove the “causal nexus” described in the third element,
a plaintiff must establish “adequate causation.” This 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 v. Hosp. Comunitario Buen
Samaritano, Inc., 2019 WL 3311270, at *9 (D.P.R. 2019) (quotation
omitted) (emphasis added). The First Circuit has repeatedly held
that expert testimony is required to prove causation in medical
malpractice suits. This because medical malpractice is a field
where issues are “scientifically driven and more nuanced than in
most tort cases.” Martinez-Serrano v. Quality Health Servs. Of
Puerto Rico, Inc., 568 F.3d 278, 286 (1st Cir. 2009). See also
Cruz-Vázquez v. Menonita General Hosp., Inc., 613 F.3d 54, 56 (1st
Cir. 2010); Pages- Ramírez v. Ramírez-González, 605 F.3d 109, 113
(1st Cir. 2010); Marcano Rivera v. Turabo Medical Ctr. P’ship, 415
F.3d 162, 167 (1st Cir. 2005) (quotation omitted) (“[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.”).

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8

Therefore, it is not surprising that most medical malpractice
cases in the District of Puerto Rico where the plaintiff’s sole
expert report has been stricken from the record are frequently
dismissed. See e.g., Noel Martinez, 2020 WL 5039242, at *6; Santa
Cruz Bacardi, 2020 WL 249433, at *9; Laureano Quinones v. Nadal
Carrion, 2018 WL 4057264, at *3 (D.P.R. 2018); 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); Rodriguez-Sanchez v. United States, 380 F.
Supp. 3d 184, 189 (D.P.R. 2016); Rodriguez-Diaz v. Seguros TripleS, Inc., 2009 WL 3066637, at *3 (D.P.R. 2009), aff'd, 636 F.3d 20
(1st Cir. 2011).
C. Exceptions to the Expert Testimony Requirement

There are some narrow exceptions where expert testimony is
not necessary to prove causation in medical malpractice suits in
Puerto Rico. These are “situations where common knowledge and
experience are all that is necessary to comprehend a defendant's
negligence” or “where negligence is grossly apparent,” or “where
a doctor's conduct violates a set standard.” Rolón-Alvarado v. San
Juan, 1 F.3d 74, 79 (1st Cir. 1993). The exceptions must include
only

situations

where

sufficiently

blatant

“legitimately

recognize

“the
or
or

claimed

patent
infer

medical

that

lay

negligence.”

malpractice
persons,”
Id.

is
may

(emphasis

added). Plaintiffs bear the burden of proving the existence of

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9

blatant negligence. See e.g. Rodriguez-Sanchez, 380 F. Supp. 3d at
194 (holding inapplicable the Rolón-Alvarado exceptions given that
plaintiff failed to establish “a blatant or patent case of medical
malpractice”); Mercado-Velilla v. Asociacion Hosp. del Maestro,
902 F. Supp. 2d 217, 239 (D.P.R. 2012) (finding the exceptions
inapplicable because injuries caused by a medication was a “typical
‘complex

medical

and

scientific

issue[]’”

which

required

the

support of a medical or scientific expert).
III. FINDINGS OF FACT
Before discussing the undisputed facts, the Court must address
a

compliance

issue

which

arose

when

reviewing

Plaintiffs’

additional facts. (Docket No. 94). Most of these facts are based
on Dr. Hausknecht’s expert report. Yet, the report was stricken
from the record by the Court’s order at Docket No. 87. Until the
Opposition to MSJ, the record shows that Plaintiffs have not asked
the Court to reconsider this decision. Hence, Dr. Hausknecht’s
report remains inadmissible evidence.
The First Circuit has held that “[i]n opposing a motion for
summary judgment, a plaintiff must proffer admissible evidence
that could be accepted by a rational trier of fact as sufficient
to establish the necessary proposition.” Gomez-Gonzalez v. Rural
Opportunities, Inc., 626 F.3d 654, 662 (1st Cir. 2010) (quotation
omitted)

(emphasis

added).

A

stricken

expert

report

is

not

admissible evidence. See e.g., Crawford v. Newport News Indus.

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Civil No. 16-3192 (RAM)
Corp.,

2018

WL

recommendation

10

4561671,
adopted

at

in

*82

(E.D.

Va.

2018),

report

and

part,

2018

WL

2943445

(E.D.

Va.

2018), appeal dismissed sub nom. Kershaw v. Newport News Indus.
Corp., 2018 WL 8058614 (4th Cir. 2018) (plaintiff may not rely on
doctor’s analysis “for any point” since his testimony and opinions
were stricken by the Court); Merriman v. Toyota Motor Eng'g & Mfg.
N. Am., Inc., 2011 WL 13234294, at *1 (W.D. Mo. 2011) (holding
that because plaintiff relied upon stricken expert testimony to
prove a defect, she had not presented admissible evidence to prove
the existence of a defect); Denton v. Ne. Ill. Reg'l Commuter R.R.
Corp., 2005 WL 1459203, at *5 (N.D. Ill. 2005) (except for stricken
expert’s report as to medical causation, plaintiff had not offered
any expert testimony to support an inference of causation, and
failed to produce admissible evidence of an essential element of
her claim). Proffered facts based on Dr. Hausknecht’s inadmissible
expert report are not adequately supported by the record and cannot
be considered on summary judgment.
After

analyzing

the

SMF

(Docket

No.

89-1),

Plaintiffs’

additional facts (Docket No. 94) and Dr. Toledo’s reply to said
facts (Docket No. 98), and only crediting material facts that are
properly supported by a record citation and uncontroverted, the
Court makes the following findings of facts: 3

3

References to a Finding of Fact shall be cited as follows: (Fact ¶ _).

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11

1. This is a civil action for damages arising out of alleged
medical negligence by Dr. Toledo and other defendants filed by
plaintiffs Mrs.

López

and

Mrs. Gaudier who assert Federal

Jurisdiction under 28 U.S.C. § 1332. (Docket No. 89-1 ¶ 1).
2. Plaintiffs’ theory of recovery against Dr. Toledo is alleged
substandard

medical

care including that Mrs. López “was not

given adequate medical treatment by defendants,”
López’s

that Mrs.

damages were caused by the fault or negligence of Dr.

Toledo “ who did not meet the required standards of care and
reasonable
and

that

adequate

prudence

in

the

“[D]efendants
neurological

surgery and

stay

in

did

care
not

evaluation
the

provided
provide
and

to

Mrs. López,”

Mrs.

treatment

López
during

with
her

hospital.” Id. ¶ 2.

3. Plaintiffs’ alleged that Dr. Toledo deviated from the accepted
standards of care by:
a. “[failing]

to

perform

the

medical,

consultations

and/or medical and/or neurological treatments required
to

diagnose

and/or

avoid

a

massive

stroke”

once

Defendants became “aware of the symptoms presented by
Mrs. López.” Id. ¶ 3a.
b. “performing surgery without identifying, isolating and
protecting the nerve and vascular tissue in the affected
area.” Id. ¶ 3b.
c. “[failing]

to

timely

diagnose

the

devastating

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Civil No. 16-3192 (RAM)

12

neurological damage in process.” Id. ¶ 3c.
d. “[failing] to provide adequate monitoring in the process
to identify the risks and multiple perforations to the
cerebral artery” and “the

lack

of

adequate

treatment

and medical and/or neurological evaluation.” Id. ¶ 3d.
e. “the

lack

of

adequate

treatment

and

medical

and/or

neurological evaluation.” Id. ¶ 3e.
4. Plaintiffs

retained

Dr. Hausknecht as their sole expert

witness and proffered he would testify as to “his review
of the pertinent records, the standards of care applicable
to

this

case,

the

defendant’s

departures

from

such

standards, the causal relationship of these departures with
the damages sustained by Mrs. López, the contents of
expert report and deposition,

his

and the applicable medical

literature.” Id. ¶ 4.
5. On January 22, 2020, the Court granted Dr. Toledo’s Motion in
Limine

at

Docket

No.

64

and

struck from the record Dr.

Hausknecht’s expert opinions regarding the standard of care
and Dr. Toledo’s supposed negligence. Id. ¶ 5.
6. Plaintiffs reserved and announced their right to use as their
witness any expert witness announced by Dr. Toledo in the
Joint Pretrial Conference Report (“JPCR”) filed on July 12,
2018. (Docket Nos. 49; 94 ¶ 5).
7. In the JPCR, Dr. Toledo identified Dr. Ricardo H. Brau Ramírez

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Civil No. 16-3192 (RAM)

13

(“Dr. Brau”) as her expert witness and proffered that he
would:
[T]estify as an expert in neurosurgery
regarding
his
training,
qualifications,
experience, his review of the pertinent
records, the standards of care applicable to
the specific type of neurosurgical procedure
pertinent to this case, the applicable
standards before, during and after the
procedure itself; important medical knowledge
to understand the surgery performed and the
complications
suffered
by
the
patient;
explanations regarding the contents of his
expert report and the applicable medical
literature.
(Docket No. 94 ¶ 6).
8. Dr.

Brau’s

report

did

not

question

or

contradict

Dr.

Hausknecht’s statement that the standard of care for the
surgery performed by Dr. Toledo included the duty to identify,
isolate, and protect the nervous tissue (cranial nerves) and
vascular structures (arteries and perforators). Id. ¶7.
9. Dr. Brau also opined that the surgical manipulations performed
by Dr. Toledo were unavoidable. Id. ¶ 10.
10. Dr. Brau’s report stated that:
a. “There should be no doubts that Mrs. López was fully
informed and understood the risks, complications, and
prognosis of her surgery and elected to proceed with it.”
(Docket No. 65-1 at 8).
b. “The operation done by Dr. Toledo followed the standard
of care. Dr. Toledo took all precautions and diligences

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Civil No. 16-3192 (RAM)
to

minimize

14

the

risks

and

complications

of

this

procedure.” Id.
c. “[It is] highly improbable that direct surgical trauma to
the

nerves

or

the

brainstem

occurred

during

surgery

because the patient [Mrs. López] would have woken from
the anesthesia with a neurological deficit. This is not
what medical record indicates [.]” Id. at 9.
d. “[T]he[re] is not even a trace of evidence in the medical
chart that Dr. Toledo failed to identify, isolate, and
protect the nervous tissue and vascular structure in this
case.” Id. at 10.
IV. ANALYSIS 4
A. Plaintiffs Cannot Prove Dr. Toledo’s Negligent Conduct Without
Expert Testimony

Dr. Toledo’s MSJ, which HIMA joined, is based on Puerto Rico
case law which states that expert testimony is required to prove
a standard of care and medical negligence and causation in medical
malpractice suits. (Docket No. 89 at 1). Dr. Toledo posits, and

4

While reviewing the record, the Court noticed that counsel for Dr. Toledo
filed an MSJ at Docket No. 89 which copies extensively from this Court’s opinion
in Santa Cruz Bacardi, 2020 WL 249433, at *6. As in Pagan Velez v. Laboy
Alvarado, the Court did not find “a single citation to [Santa-Cruz Bacardi],
but did notice adjustments in the appropriate places which were commensurate
with the facts” of the case at bar. Pagan Velez v. Laboy Alvarado, 145 F. Supp.
2d 146, 160–61 (D.P.R. 2001). Although some courts impose monetary sanctions
upon such misconduct, this Court will not sanction Dr. Toledo’s attorneys at
this time. Id. But, a repetition of this conduct in the future will not go
unnoticed. See Pagan Velez, 145 F. Supp. 2d at 161 (issuing the same warning);
Alamo v. Commonwealth of Puerto Rico, 2006 WL 1716422, at *3 (D.P.R. 2006),
aff'd in part sub nom. Torres-Alamo v. Puerto Rico, 502 F.3d 20 (1st Cir. 2007)
(issuing a similar warning and declining to impose sanctions upon an attorney
who extensively copied a judicial opinion and failed to cite said opinion).

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15

the Court agrees with her, that since this Court struck Plaintiffs’
sole expert report, the claims against her cannot survive.
The Court previously struck Plaintiffs’ expert report because
“[t]he proffered testimony makes it impossible to determine [if]
the stated standard of care is nationally used or if it is based
solely on Dr. Hausknecht’s personal opinion.” (Docket No. 87 at
14-15) (Fact ¶ 5). Further, the report did not provide any data to
explain its conclusory findings that a deviation from the standard
of care had occurred. Id. at 15. Thus, the report “would not assist
the

trier

of

fact

with

regards

to

identifying,

let

alone

understanding, the applicable standard of care and any deviation
from it by Dr. Toledo.” Id. at 16.
After reviewing the applicable case law and the arguments in
support and opposition to the MSJ, this Court believes that summary
judgment is proper. Without expert testimony, Plaintiffs cannot
establish

Dr.

Toledo’s

breach

of

a

duty

of

care.

Without

establishing this breach, Plaintiffs cannot establish sufficient
causation to link Dr. Toledo’s alleged negligent behavior with
Mrs. López’ current condition. Expert testimony is needed to prove
if Dr. Toledo’s acts caused the aggravation of “[Mrs. López’s]
simple face spasm, cerebral infarction, complete facial paralysis,
complete hearing loss, ataxia, vestibular dysfunction, imbalance,
taste dysfunction and visual dysfunction.” (Docket No. 24 ¶ 32).

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16

Further, Plaintiffs failed to proffer in their Opposition to
MSJ sufficient material facts to show that Dr. Toledo’s medical
interventions contributed to Mrs. López’s current state. (Docket
No. 95). The arguments in their Opposition to MSJ are two-fold.
First,

they

mostly

reconsideration
Hausknetch’s

of

utilized
the

testimony

their

Court’s
at

Docket

opposition

to

request

decision

to

exclude

No.

Dr.

Toledo

87.

a

Dr.
also

highlighted this in her Reply. (Docket No. 98 at 1). But, the First
Circuit has reiterated that a motion for reconsideration is “an
extraordinary remedy which should be used sparingly.” U.S. ex rel.
Ge v. Takeda Pharm. Co., 737 F.3d 116, 127 (1st Cir. 2013)
(internal quotation omitted). A district court may only grant one
if there is a “manifest error of law, [...] newly discovered
evidence, or in certain other narrow situations [such as a change
in controlling law].” United States v. Peña-Fernández, 2019 WL
3716472, at *2 (D.P.R. 2019) (quoting Biltcliffe v. CitiMortgage,
Inc.,

772

F.3d

925,

930

(1st

Cir.

2014)).

Here,

Plaintiffs’

opposition failed to present new evidence not previously reviewed
by this Court, nor an intervening change in controlling law nor
that a reconsideration was needed to correct a clear error of law
or to avoid a manifest injustice. Hence, the reconsideration
requested via the Opposition to MSJ fails to sufficiently aver why
the Court should alter its decision to strike Dr. Hausknetch’s
testimony. This is also insufficient to avoid summary judgment.

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Second,

17

Plaintiffs

also

argued

that

by

“reserv[ing]

and

announc[ing] their right to use as their own expert any expert
witness

announced

Defendants’

sole

by

defendants”

expert

witness,

in
Dr.

the

JPCR,

Brau,

to

they

can

use

establish

Dr.

Toledo’s breach of duty of care. (Facts ¶¶ 6-7). Summary judgment
is thus not proper because Defendants did not:
(i) challenge Dr. Brau’s qualifications (knowledge,
skill, experience, training, or education) as an
expert in his field; (ii) his expert testimony is
reliable under the Daubert standard; (iii) the
expert testimony is based on sufficient underlying
facts and data; (iv) Defendants’ arguments as to
DR. TOLEDO’s negligence go to the weight of the
testimony rather than to its admissibility and are
strictly
related
to
the
persuasiveness
and
credibility
of Dr. Brau’s expert opinion, and
questions of persuasiveness and credibility are
properly reserved for the jury; and (v) Dr. Brau’s
testimony and cross-examination, will help the
jury to determine both the proper standards of
care and the causal nexus between Defendants’
negligence and Plaintiffs’ damages.
(Docket No. 95 at 15).
Plaintiffs then invoked case law asserting that once an expert
report is filed in a case, said expert belongs to either side. Id.
at 16-17. Plaintiffs concluded by stating that “they can and will
prove their case by preponderance of the evidence through Dr.
Brau’s testimony.” Id.
Dr. Toledo’s Reply cited several sections of Dr. Brau’s report
where he opines that Dr. Toledo followed the standard of care and
that an unwanted result from any procedure performed by Dr. Toledo

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18

was not evidence of negligence. (Docket No. 98 at 2-3). Plaintiffs’
sole argument in their Response reiterates that they announced
they would use Dr. Brau as an expert witness at trial and that Dr.
Toledo failed to cite any case law stating they could not use him.
(Docket No. 99 at 2). They also claim that “[t]here is no plausible
reason at law or equity to justify granting summary judgment in a
case that should be going forward to trial” and that doing so would
violate their “constitutional right to trial.” Id. at 3.
The Court agrees with Plaintiffs that once designated, an
expert is available to either side. Per Fed. R. Civ. P. 26(b)(4)(A),
“[a] party may depose any person who has been identified as an
expert whose opinions may be presented at trial.” See also S.E.C.
v. Koenig, 557 F.3d 736, 744 (7th Cir. 2009) (citing Fed. R. Civ.
P. 26(b)(4)(B)) (“A witness identified as a testimonial expert is
available to either side; such a person can't be transformed after
the report has been disclosed, and a deposition conducted, to the
status of a trial-preparation expert whose identity and views may
be concealed.”) Nevertheless, summary judgment is proper even after
reading

Dr.

Plaintiffs.

Brau’s
See

report

Calderon

“in

the

Amezquita

light
v.

most

favorable”

Rivera-Cruz,

2020

to
WL

4209296, at *6 (D.P.R. 2020) (citation omitted).
Here, while it is true that Dr. Brau’s report did not directly
question

or

contradict

Dr.

Hausknetch’s

standard

of

care

allegations as to Dr. Toledo’s duty to identify, isolate and

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Civil No. 16-3192 (RAM)

19

protect nervous tissue (Fact ¶ 8), the report still concludes that
“the[re] is not even a trace of evidence in the medical chart that
Dr. Toledo failed to identify, isolate, and protect the nervous
tissue and vascular structure in this case.” (Fact ¶ 10d). Dr.
Toledo highlighted this in her Reply. (Docket No. 98 at 2).
Further,

Dr.

Brau

avers

in

his

report

that

the

surgical

manipulations performed by Dr. Toledo were unavoidable. (Fact ¶
9). A cursory review of Dr. Brau’s report does not show that Dr.
Toledo failed to meet the standard of care, an essential element
of any medical malpractice case. (Facts ¶ 8-10). Further, Fed. R.
Civ. P. 26(a)(2)(B) states that an expert report must include “a
complete statement of all opinions the witness will express and
the basis and reasons for them” and “the facts or data considered
by the witness in forming them.” (emphasis added). This means that
there is a presumption that Dr. Brau’s report included all that he
will express at trial. Plaintiffs carry the burden of proving the
opposite is true. Hence, their claim that summary judgment is not
proper given that they cannot anticipate nor be certain of which
opinions Dr. Brau may have left out of his report and could testify
about at trial, standing alone, is speculative at best. (Docket
No. 99 at 2). Importantly, this argument does not create a factual
dispute for purposes of summary judgment.
The case of In re Chantix (Varenicline) Prod. Liab. Litig. is
helpful here. See In re Chantix (Varenicline) Prod. Liab. Litig.,

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Civil No. 16-3192 (RAM)

20

881 F. Supp. 2d 1333 (N.D. Ala. 2012). In said products liability
case, plaintiff’s expert report stated that the drug Chantix
“should not be used as a first line therapy.” Id. at 1341. This
warning was not included in medication’s label. Id. The plaintiffs
in

that

case

asserted

that

the

expert

“‘is

a

well-qualified

psychiatrist who could offer expert testimony at trial about the
lack of “completeness” and “accuracy” and thus the inadequacy, of
the July 2009 label[.]’” Id. at 1342. Yet, the Northern District
of Alabama concluded that the plaintiff’s assertions “do not rise
to the level of evidence the court can consider on the pending
motion for summary judgment. Argument concerning what an expert
witness “could” testify at trial is no more than rank speculation,
not evidence.” Id. (emphasis added).
As stated above, the Court reaches the same conclusion here
as to what Dr. Brau may or may not testify at trial. It is not
evidence which the Court may consider when deciding whether to
grant or deny summary judgment. It is well settled that “‘[t]he
mere existence of a scintilla of evidence in support of the
plaintiff’s position’ is not enough to ward off summary judgment.”
Álvarez-Cabrera v. Toyota Motor Sales, U.S.A., Inc., 2020 WL
3620204, at *3 (D.P.R. 2020) (quoting Irobe v. United States
Department of Agriculture, 890 F.3d 371, 380 (2018)).
Plaintiffs are therefore left without expert evidence to
prove

their

medical

malpractice

case.

Moreover,

Plaintiffs’

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Civil No. 16-3192 (RAM)

21

insistence that they will call Dr. Brau as an expert witness shows
that expert testimony is required to assist the finder of fact in
determining if Dr. Toledo’s alleged negligence caused Mrs. López
to suffer, including but not limited to, a cerebral infarction, a
complete facial paralysis and hearing loss. (Docket No. 24 ¶ 32).
As it stands, Dr. Brau’s report does not create a material fact
which the Court can use to determine if Dr. Toledo was indeed
negligent. Lastly, Plaintiffs may not rely on what they hope Dr.
Brau might testify at trial to defeat summary judgment. Plaintiffs
are missing all three elements required to prevail in a medical
malpractice case as without expert testimony they cannot show: (1)
the duty that Dr. Toledo owed to Mrs. López; (2) an act or omission
on her behalf breaching said duty; and (3) a sufficient causal
nexus between the breach and Mrs. López’s current state. See Santa
Cruz Bacardi, 2020 WL 249433, at *6. Summary judgment is proper
here.
B. Plaintiffs Fail to Prove Dr. Toledo’s Conduct Was Blatant

Similarly, Plaintiffs aver in their Complaint that Defendants
were “grossly negligent” because they did not provide Mrs. López
with adequate neurological evaluation and treatment during her
surgery and stay at HIMA. (Docket No. 24 at ¶ 34). They also allege
that Defendants were “grossly negligent” when they “failed to
perform the medical, consultations” or the neurological treatments
to Mrs. López “required to diagnose and/or avoid a massive stroke.”

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Civil No. 16-3192 (RAM)

22

Id. ¶ 35. Beyond these statements, however, a review of the record
reveals that Plaintiffs do not proffer evidence that Dr. Toledo’s
conduct was “sufficiently blatant or patent that [a] lay person[]”
could infer that her negligence caused Mrs. López’s current state.
Rolón-Alvarado, 1 F.3d at 79. Moreover, the fact that Plaintiffs
repeatedly claim that they will call Dr. Brau as an expert witness
shows

that

they

believe

that

Dr.

Toledo’s

conduct

was

not

“sufficiently blatant” to forego expert testimony and that expert
testimony is required in the present case. Thus, the exceptions
articulated in Rolón-Alvarado are inapplicable here.
The First Circuit has long held that to prevail in a medical
malpractice case “[a] plaintiff must prove, by a preponderance of
the evidence, that the physician's negligent conduct was the factor
that ‘most probably’ caused harm to the plaintiff.” Lama v. Borras,
16 F.3d 473, 478 (1st Cir. 1994) (quotation omitted). Plaintiffs
have failed to do so here. As seen above, without expert testimony,
Plaintiffs cannot prove all three elements required by Puerto Rico
law in medical malpractice cases. As a result, they cannot prove
this “most probably” standard and summary judgment is proper.
V. CONCLUSION
Plaintiffs lack admissible expert testimony and cannot show
that Dr. Toledo’s conduct was sufficiently blatant that a lay
person could infer that negligence “aggravated [Mrs. López’s]
simple facial spasm, [caused a] cerebral infarction, complete

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Civil No. 16-3192 (RAM)
facial

paralysis,

complete

23
hearing

loss,

ataxia,

vestibular

dysfunction, imbalance, taste dysfunction and visual dysfunction.”
(Docket No. 24 ¶ 32). The Court GRANTS the Motion for Summary
Judgment at Docket No. 89. Judgment in favor of all remaining
defendants shall be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 4th day of September 2020.
S/ RAÚL M. ARIAS-MARXUACH
United States District Judge