Lopez-Ramirez et al v. Grupo HIMA-San Pablo, Inc. et al
Filing
87
OPINION AND ORDER granting 64 Motion in Limine regarding Dr. Hausknecht. Signed by Judge Raul M. Arias-Marxuach on 1/22/2020. (mrr)
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 in Limine requesting that the Court strike
Plaintiffs’ expert witness, Dr. Allan Hausknecht (Dr. Hausknecht).
(Docket No. 64). In response, Plaintiffs filed an Opposition to
Defendant’s Motion in Limine at Docket No. 64 and codefendant Dr.
Maria S. Toledo filed a Reply to Opposition to Motion in Limine.
(Docket Nos. 65 and 68, respectively). Having reviewed the parties’
arguments, the case record and the applicable law, the Court hereby
GRANTS Dr. Maria Toledo’s Motion in Limine at Docket No. 64.
Dr.
Allan
the
Hausknecht’s
proffered
expert
opinions
regarding
standard of care and Dr. Toledo’s alleged negligence are stricken.
I. BACKGROUND
On
December
23,
2016,
Mrs.
Eulalia
López-Ramírez
(“Mrs.
López”) and Mrs. Laura Cristina Gaudier-López (“Mrs. Gaudier”)
Civil No. 16-3192 (RAM)
2
sued Dr. María Toledo-Gonzalez (“Dr. Toledo”) and Centro Médico
del Turabo, Inc. d/b/a Hospital HIMA San Pablo Caguas (“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
surgery on Mrs. López. (Docket No. 24 ¶¶ 10-17).
decompression
While Plaintiffs
affirm that the operative report indicates that it was a successful
operation, they claim that inadequate medical treatment provided
by Dr. Toledo, HIMA, and its medical and nursing 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; 33. Additionally, Plaintiffs
allege that Defendants were negligent because they did not provide
Mrs. López with adequate neurological evaluation and treatment
during her surgery and stay at HIMA. Id. ¶ 34. Both Dr. Toledo and
HIMA deny that they failed to meet the standard of care. (Docket
Nos. 16, 18 and 24).
In their original Complaint, Plaintiffs included as defendants Dr. Toledo’s
husband and their conjugal partnership, unknown monitoring companies, and
unknown insurance companies. (Docket No. 1). Plaintiffs ultimately filed three
amended complaints specifying the names of some of said entities and
individuals, namely Bromedicon, Next Step Medical Co. Inc., and Gustavo J.
Nogales-Pérez. (Docket Nos. 5, 8 and 20-1). Plaintiffs voluntarily dismissed
their claims as to Dr. Toledo’s husband, Gustavo J. Nogales-Pérez, and their
conjugal partnership because of the prenuptial agreement between them. (Docket
No. 31 and 31).
1
Civil No. 16-3192 (RAM)
3
Plaintiffs retained Dr. Allan Hausknecht (“Dr. Hausknecht”)
as their expert witness and proffered that 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 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
(“Motion”)
requesting
that
the
court
strike
Dr.
Hausknecht as an expert for three reasons. (Docket No. 64). First,
Dr. Toledo contends that Dr. Hausknecht’s expert reports do not
include a statement notifying the compensation received for his
testimony and thus fail to comply with Fed. R. Civ. P. 26(a)(2)(B).
Id. at 10. Second, Dr. Toledo posits that Dr. Hausknecht is not
qualified to be an expert in this case because he is not trained
in neurosurgery, has never performed the surgery in dispute and
has never overseen interoperative neuromonitoring. Id. at 10-11.
Third, Dr. Toledo argues that Dr. Hausknecht’s contention that she
was negligent because of Mrs. López’s symptoms after the surgery
is an improper res ipsa loquitur opinion. Id. at 11-12.
In response, Plaintiffs filed an Opposition to Defendant’s
Motion in Limine on October 2, 2019. (Docket No. 65). Plaintiffs
argued that failing to include a statement of compensation was a
Civil No. 16-3192 (RAM)
4
harmless error, especially considering that they produced Dr.
Hausknecht’s invoices during discovery. Id. at 8-9. They also
affirmed that Dr. Hausknecht, a board certified neurologist, does
not need to be a neurosurgeon to provide a relevant and reliable
expert opinion. Id. at 10-11. Lastly, although Plaintiffs conceded
that
the
res
ipsa
loquitur
doctrine
has
been
abrogated,
circumstantial evidence is still admissible to prove negligence by
Dr. Toledo. Id. at 12-14. On October 10, 2019, Dr. Toledo filed a
Reply to Opposition to Motion in Limine. (Docket No. 68).
II. LEGAL STANDARD
A. The Admissibility of Expert Witness Testimony
Federal Rule of Evidence 702 governs the admissibility of
expert witness testimony. Specifically, Fed. R. Evid. 702 (“Rule
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
Civil No. 16-3192 (RAM)
5
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. Gómez- Águila, 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 potential rate of error of the
theory or technique. See 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.” Id. 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) (emphasis added). In other words,
under Daubert, an expert cannot merely state their qualifications,
Civil No. 16-3192 (RAM)
6
conclusions and assurances of reliability. See Daubert v. Merrell
Dow Pharm., Inc., 43 F.3d 1311, 1319 (9th Cir. 1995). “Moreover,
if a witness is relying mainly on experience, he must provide more
information for the Court to determine the reliability of his
testimony.” Santa Cruz-Bacardi v. Metro Pavia Hosp., Inc., 2019 WL
3403367, at *2 (D.P.R. 2019).
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
Judgment Standard and Losing Games for Psychology, Experts and the
Courts, 68 Rev. Jur. U.P.R. 159, 180 (1999)).
B. Expert Report Requirements
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:
(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;
Civil No. 16-3192 (RAM)
7
(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
“call[s]
requirements
for
disclosures.”
parties
make
to
it
make
Santiago-
Diaz
clear
explicit
v.
that
Rule
and
26(a)(2)(B)
detailed
Laboratorio
expert
Clinico
Y
De
Referencia Del Este And Sara Lopez, M.D., 456 F.3d 272, 276 (1st
Cir.
2006).
Therefore,
“expert-related
disclosures
are
insufficient when they consist of ‘sketchy and vague descriptions
of
anticipated
opinions
or
areas
of
anticipated
testimony.’”
Rivera- Marrero 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)
(finding that 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
Fed.
Civ.
26(a)(2)(B)).
In
accordance
with
these
requirements,
R.
P.
26(e)(2) dictates that parties have a duty to supplement an
Civil No. 16-3192 (RAM)
8
expert’s report by the time pretrial disclosures are due. The duty
also 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.
When a party fails to provide the information required by
Rule 26(a) or (e), Fed. R. Civ. P. 37(c)(1) “authorizes the trial
court to impose sanctions, up to and including dismissal of the
action on account of a party's failure to comply with these
automatic disclosure obligations.” Aponte-Davila v. Municipality
of Caguas, 2017 WL 3025896, at *1 (D.P.R. 2017). The First Circuit
has further established that “[t]he baseline rule is that the
required sanction […] is mandatory preclusion.” Santiago-Diaz, 456
F.3d
at
276
(internal
quotations
omitted).
However,
while
mandatory preclusion might be the norm, District Courts have
discretion in selecting the appropriate sanction and preclusion is
not automatic. Id. Moreover, “in the absence of harm to a party,
a district court may not invoke the severe exclusionary penalty
provided for by Rule 37(c)(1). This is especially so when, as was
the case here, the exclusion would result in the dismissal of the
plaintiffs' case.”
Cruz-Vazquez v. Mennonite Gen. Hosp., Inc.,
613 F.3d 54, 58 n. 1 (1st Cir. 2010). See also Wegener v. Johnson,
527 F.3d 687, 692 (8th Cir. 2008) (“When fashioning a remedy, the
district
court
should
consider,
inter
alia,
the
reason
for
noncompliance, the surprise and prejudice to the opposing party,
Civil No. 16-3192 (RAM)
9
the extent to which allowing the information or testimony would
disrupt the order and efficiency of the trial, and the importance
of the information or testimony.”).
Additionally, in medical malpractice cases, plaintiffs 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). Thus, an expert’s report must be detailed,
complete and “include the substance of the testimony which an
expert is expected to give on direct examination together with the
reasons therefor.” Salgado by Salgado v. General Motors Corp., 150
F.3d 735, 741 n. 6 (D.P.R. 1998) (internal citations omitted).
C. 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). 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). “The fact that the physician is not a specialist in
Civil No. 16-3192 (RAM)
10
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.” Payton v. Abbott Labs, 780 F.2d 147, 155 (1st Cir. 1985).
Although credentials such as board certification in a medical
specialty are relevant when considering the weight and probative
value of expert witness testimony, they are not necessary for its
admissibility. See Pages-Ramirez v. Ramirez- Gonzalez, 605 F.3d
109, 114 (1st Cir. 2010).
Furthermore,
excluding
testimony
“that
would
otherwise
‘assist the trier better to understand a fact in issue’ 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.”)
D. Evidence in medical malpractice cases
In
medical
malpractice
cases
under
Puerto
Rico
law,
plaintiffs must establish 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
Civil No. 16-3192 (RAM)
11
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, physicians must comply with the national
standard of care. See Cortes-Irizarry v. Corporacion Insular De
Seguros, 111 F.3d 184, 190 (1st Cir. 1997). 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
profession.”
generally
Ramirez-Ortiz
v.
recognized
by
Corporacion
the
medical
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, “experts must prove that
a
standard
of
care
is
nationally
used,
rather
than
simply
explaining a standard as based on their experience.” Santa CruzBacardi,
2019
WL
3403367,
at
*5.
This
can
be
achieved
by
referencing “a published standard, [discussion] of the described
course of treatment with practitioners outside the District ... at
seminars
or
conventions,
or
through
presentation
of
relevant
data.” Strickland v. Pinder, 899 A.2d 770, 773–74 (D.C. 2006)
(internal citations omitted).
Moreover,
health-care
providers
are
“presumed
to
have
exercised reasonable care in the discharge of [their] functions.”
Lopez-Rivera v. Hosp. Auxilio Mutuo, Inc., 290 F. Supp. 3d 137,
142
(D.P.R.
2017)
(internal
quotations
omitted).
Therefore,
Civil No. 16-3192 (RAM)
12
plaintiffs bear the burden of refuting said presumption. To do so,
expert testimony must typically be used. Given that “medical
knowledge
parameters
and
of
training
a
are
physician's
critical
duty,
to
the
demonstrating
minimum
standard
the
of
acceptable care [...] must ordinarily be established by expert
testimony.” Rolon-Alvarado v. Municipality of San Juan, 1 F.3d 74,
78 (1st Cir. 1993). Only in medical malpractice suits “where the
lack of care has been found to be so evident as to infer negligence”
is other evidence “aside from expert testimony” sufficient to
establish negligence. Laureano Quinones, 2018 WL 4057264, at *3
(internal quotations omitted).
III. ANALYSIS
Dr.
Toledo’s
Motion
in
Limine
alleges
that:
(1)
Dr.
Hausknecht’s expert report does not contain a statement regarding
his compensation as required by Fed. R. Civ. P. 26; (2) Dr.
Hausknecht is not qualified to be an expert in this case; and (3)
Dr. Hausknect’s testimony consists of an improper res ipsa loquitur
opinion. (Docket No. 64 at 10-12). As discussed below, while the
first two reasons are insufficient, Defendant’s contention that
the expert opinion is insufficiently supported warrants dismissal.
Although Plaintiffs concede that the expert report does not
include a statement of compensation, they argue that this omission
should be considered harmless. (Docket No. 65 at 8). On their part,
Dr. Toledo has not alleged any specific harm. Although this Court
Civil No. 16-3192 (RAM)
13
does not find any justification for failing to comply with Rule
26, in the “absence of harm,” the Court may not strike the report
for this reason alone. Cruz-Vazquez, 613 F.3d at 58 n. 1. See also
Nacy v. D.F.C. Enterprises, Inc., 2012 WL 2569086, at *2 (W.D. Mo.
2012) (“The Court agrees and finds that the failure to disclose [the
expert’s] compensation is harmless because the affidavit provided
plaintiffs with the substance of his testimony so that plaintiffs
could prepare to meet the testimony presented by defendants).
Likewise, Defendant’s contention that Dr. Hausknecht is not
qualified to be an expert lacks merit. The fact that Plaintiffs’
expert is a neurologist and not a neurosurgeon affects the weight
of his opinion, not its admissibility. See Payton, 780 F.2d at
155. See
also
specialties
in
Mitchell,
141
hematology
F.3d
and
at
15.
oncology,
(an
could
internist
testify
with
as
to
physicians' treatment of colonoscopy patient in wrongful death
suit, even though he was not a specialist in gastroenterology).
However, Dr. Toledo’s claims that Plaintiffs’ expert report
is improperly founded do affect the admissibility of said report.
Given that doctors are presumed to have exercised reasonable care,
Defendant argues that negligence cannot be assumed simply because
a patient suffered an injury or treatment was not successful.
(Docket No. 64 at 12). However, Dr. Toledo posits that “Dr.
Hausknecht simply believes that there was negligence based on the
Civil No. 16-3192 (RAM)
14
outcome. This is textbook res ipsa loquitor [sic].”2 (Docket No.
64 at 11-12). Defendant correctly indicates that the Supreme Court
of Puerto Rico has rejected the theory of res ipsa loquitur as the
basis for recovery in actions for negligence under Puerto Rico's
law.” Nestor v. Hosp. Pavia, 2005 WL 348313, at *8 (D.P.R. 2005)
(citing Bacó v. Almacen Ramon Rosa Delgado, Inc., 2000 JTS 122
(Jun
30,
2000)).
admissibility
of
Thus,
expert
in
the
context
testimony,
of
proffered
determining
the
testimony
that
consists solely of a res ipsa loquitur opinion would lack the
reliable methodology and specialized information required by Fed.
R. Evid. 702.
In the present case, the only information offered by Dr.
Hausknecht to establish negligence is a summary of Mrs. López’s
symptoms after her operation. Dr. Hausknecht even concedes that,
based on the operation report, he would have expected the operation
to be uneventful and successful. (Docket No. 64-1 at 3). Despite
acknowledging the “textbook” nature of the operative report and
the inherent risks of the surgery, Dr. Hausknecht concludes that
Dr. Toledo was negligent without specifying the source of the
standard of care applicable to Mrs. López’s case and why it was
not met. The proffered testimony makes it impossible to determine
Res ipsa loquitur, Latin for “the thing speaks for itself,” is a torts doctrine
“providing that, in some circumstances, the mere fact of an accident’s
occurrence raises an inference of negligence that establishes a prima facie
case.” RES IPSA LOQUITUR, Black's Law Dictionary (11th ed. 2019).
2
Civil No. 16-3192 (RAM)
15
of the stated standard of care is nationally used or if it is based
solely on Dr. Hausknecht’s personal opinion. See Strickland, 899
A.2d at 773–74; Porter v. McHugh, 850 F. Supp. 2d 264, 268 (“Where
the
expert
makes
certification
‘no
process,
attempt
to
current
link
his
testimony
literature,
to
any
conference
or
discussion with other knowledgeable professionals,’ there is no
“basis for his discussion of the national standard of care.”).
Moreover, the report does not provide any data to sustain or
explain the conclusory finding that there was a deviation from the
standard of care.
Although Dr. Hausknecht’s report states that he included
copies of journal articles that “may be helpful” he fails to name
them or relate the content of said publications to his assertion
that Dr. Toledo was negligent. (Docket No. 64-1 at 5). “To comply
with Fed. R. Civ. P. 26(a)(2)(B), the report necessarily needed to
include this information, not simply provide copies of medical
literature.” Martinez v. United States, 2019 WL 3402950, at *2
(D.P.R. 2019). See also 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.”).
In
light
of
the
above,
“there
is
simply
too
great
an
analytical gap” between the content of the report and the opinion
Civil No. 16-3192 (RAM)
16
proffered. Gen. Elec. Co., 522 U.S. at 146. Dr. Hausknecht’s
deposition testimony is equally unhelpful, reiterating that Mrs.
López’s results “can only be explained by improper procedure”
despite listing other causes for similar injuries. (Docket No. 643 at 20; 24-25).
Ultimately, Dr. Hausknecht’s testimony 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.
3
IV. CONCLUSION
For the reasons set forth herein, the Court finds that Dr.
Allan Hausknecht’s report and proffered testimony do not fulfill
the requirements of Fed. R. Evid. 702 and the applicable case law.
Wherefore, Defendant’s Motion in Limine at Docket No. 64 is hereby
GRANTED.
Therefore
Dr.
Allan
Hausknecht’s
proffered
expert
opinions regarding the standard of care and Dr. Toledo’s alleged
negligence are stricken.
IT IS SO ORDERED.
In San Juan Puerto Rico, this 22nd day of January 2020.
S/ RAÚL M. ARIAS-MARXUACH
United States District Judge
Despite Plaintiffs’ proffer that he would testify as to the standard of care,
Dr. Hausknecht repeatedly stated throughout his deposition that he is
“testifying in this case regarding the outcome of a surgical procedure.” (Docket
No. 64-3 at 19-20) (emphasis added).
3
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