Gonzalez-Arroyo v. Doctors' Center Hospital Bayamon, Inc. et al

Filing 56

OPINION AND ORDER granting 44 Doctors' Hospital Motion in Limine. Dr. Barry Schifrin's proffered expert testimony is stricken. Signed by Judge Raul M. Arias-Marxuach on 8/5/2020. (mrr)

Case 3:17-cv-01136-RAM Document 56 Filed 08/05/20 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JAMILET GONZÁLEZ ARROYO in
representation of her minor
son ALG
CIVIL NO. 17-1136(RAM)

Plaintiffs
v.
DOCTOR’S CENTER HOSPITAL
BAYAMÓN, INC., et al
Defendants

OPINION AND ORDER
RAÚL M. ARIAS-MARXUACH, District Judge
Pending

before

the

Court

is

codefendant

Doctors’

Center

Hospital Bayamón, Inc.’s (subsequently “Doctors’ Hospital”) Motion
in Limine to Preclude the Opinions & Testimony of Plaintiffs’
Expert Dr. Barry Schifrin (“Motion in Limine”). (Docket No. 44).
Codefendants Dr. Benito Hernández, Jane Doe, and the conjugal
partnership

Hernández-Doe

subsequently

joined

the

Motion

in

Limine. (Docket Nos. 45 and 46). In response, Plaintiff filed an
Opposition to Defendant’s Motion in Limine at Docket No. 44 and
Doctors’ Hospital then filed a Reply to Plaintiffs’ Opposition to
Doctors’ Motion in Limine to Preclude the Opinions & Testimony of
Dr.

Barry

Schifrin

(“Reply”).

(Docket

Nos.

50

and

55,

respectively). Having reviewed the parties’ arguments and the
applicable law, the Court hereby GRANTS Doctors’ Hospital Motion

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in Limine

2

at Docket No. 44.

Therefore, Dr. Barry Schifrin’s

proffered expert testimony is stricken.
I. BACKGROUND
On

January

30,

2017,

Plaintiff

Jamilet

González-Arroyo

(“Plaintiff” or “Mrs. González”), in representation of her minor
son ALG, sued Doctors’ Hospital, Dr. Benito Hernández-Díaz (“Dr.
Hernández”), and other unnamed defendants for alleged medical
malpractice. (Docket No. 1). In the Complaint, Plaintiff claims
that ALG’s cerebral palsy, among other conditions and permanent
injuries,

could

have

been

prevented

by

the

“[p]rompt

and

responsible attention by defendants in the form of preventative or
resuscitative maneuvers or earlier cesarean section” to prevent
ALG’s loss of oxygen at birth. Id. ¶¶ 41-43; 46-48. Doctors’
Hospital
Complaint

and

Dr.

Hernández

contending

that

filed

they

individual

acted

“within

answers
the

to

the

recognized

standard of care.” (Docket Nos. 9 ¶ 27; 12 ¶ 18).
Plaintiff retained Dr. Barry Schifrin (“Dr. Schifrin”) as an
expert witness and proffered that he would testify:
[A]s an expert in obstetrics and gynecology
regarding his qualifications and experience,
his review of the pertinent records, the
standards of care applicable to this case, the
defendants’ departures from such standards,
the causal relationship of these departures
with the damages of baby ALG, the contents of
his expert report, the applicable medical
literature and the testimony given at his
deposition.

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3

(Docket No. 22 at 47).
On February 18, 2020, Doctors’ Hospital filed a Motion in
Limine requesting that the Court strike the proffered testimony of
Dr. Schifrin, for his limited expertise and failing to comply with
Fed. R. Civ. P. 26 and Fed. R. Evid. 702. (Docket No. 44). Doctors’
Hospital contends that Dr. Schifrin’s expert report: (1) contains
opinions

that

are

merely

assumptions

based

on

insufficient

information; (2) does not establish a national standard of care;
(3)

lacks

references

to

any

medical

literature;

and

(4)

is

unreliable. Id. 9-14; 19-20. Furthermore, Doctors’ Hospital also
contends that Plaintiff failed to comply with their duty to
supplement the report pursuant to Fed. R. Civ. P. 26(e) after Dr.
Schifrin’s

deposition

in

which

he

retracted

several

of

his

opinions. Id. at 15. Codefendant Dr. Hernández filed a Motion for
Joinder requesting to join Doctors’ Hospital’s Motion in Limine
and which was subsequently granted by the Court. (Docket Nos. 45
and 46).
In

the

(“Opposition”),
requested

Opposition
Plaintiff

additional

to

Defendant’s

posits

information

that
or

Motion

Defendant

an

amended

in

Limine

could

expert

have
report

instead of “complain[ing] inappropriately in an in limine that the
expert report had not been supplemented.” (Docket No. 50 at 10).
Additionally,

Plaintiff

argues

that

violating

the

duty

to

supplement is a mere technicality that would cause no harm and

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therefore

does

not

4

warrant

the

exclusion

of

Dr.

Schifrin’s

testimony. Id. at 11. Notably, Plaintiff’s Opposition did not
address Doctors’ Hospital’s allegations regarding the report’s
lack of medical literature, alleged shortcomings establishing a
standard of care, nor the contention that it does not comply with
Fed. R. Evid. 702.
In its Reply to Plaintiff’s Opposition, Doctors’ Hospital
avers that Plaintiff’s duty to supplement its expert report is
fundamental, especially because of the discrepancies between Dr.
Schifrin’s proffered report and subsequent deposition testimony.
(Docket No. 55 at 6-7). As an example, Doctors’ Hospital points to
the fact that despite having assumed in his report that fetal
tracings simply did not exist, Dr. Schifrin was able to review
said tracings during his deposition and still did not supplement
his report with new findings. Id. at 7-8. Lastly, Doctors’ Hospital
maintains that the proffered expert testimony simply does not
support Plaintiff’s claim that a negligent cesarean section caused
ALG’s damages. Id. at 9.
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:

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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 this rule, trial judges are tasked with “ensuring
that an expert’s testimony both rests on reliable foundation and
is relevant to the task at hand.” Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 597 (1993). Therefore, when applying Rule 702,
judges 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

performing

their

gatekeeping

function, judges must focus “solely on principles and methodology,
not on the conclusions that they generate.” Daubert, 509 U.S. at
595.
However,

conclusions

and

methodology

are

not

entirely

distinct from one another. There are instances where “a court may
conclude that there is simply too great an analytical gap between

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6

the data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522
U.S. 136, 146 (1997) (emphasis added). In practical terms, under
Daubert,

an

expert

cannot

merely

state

their

qualifications,

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)) (emphasis added).
B. Expert Report Requirements
In addition to satisfying the rigors imposed by Rule 702, to
be admissible, expert reports must also comply with Federal Rule

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of Civil Procedure 26(a)(2)(B). Specifically, 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;
(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

parties

make
to

it

make

clear

that

explicit

and

Rule

26(a)(2)(B)

detailed

expert

disclosures.” Santiago-Diaz v. Laboratorio 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

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8

the general subject matter of their expected testimony and lacked
any of the substance required by Rule 26(a)(2)(B)).
In

accordance

with

26(e)(2) dictates that

these

requirements,

Fed.

R.

Civ.

P.

parties have a duty to supplement an

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 (emphasis added).
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,

such as the preclusion of expert

testimony or even the dismissal of the action unless the failure
was

substantially

justified

or

harmless.

See

Lawes

v.

CSA

Architects & Engineers LLP, 963 F.3d 72, 91 (1st Cir. 2020);
Aponte-Davila v. Municipality of Caguas, 2017 WL 3025896, at *1
(D.P.R. 2017). The First Circuit has instructed that “[p]reclusion
is not strictly required.” Lawes, 963 F.3d at 91 (1st Cir. 2020).
Instead, courts “should consider the totality of events and then
choose from the broad universe of available sanctions in an effort
to fit the punishment to the severity and circumstances of the
violation.”

Young v. Gordon, 330 F.3d 76, 81 (1st Cir. 2003). 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

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9

the opposing party, 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.”).
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
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

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10

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. PId. 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. Expert testimony in medical malpractice cases
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).
Under Puerto Rico law, plaintiffs in medical malpractice
suits 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

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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,

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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

the

standard

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
Prior to analyzing the content of Dr. Schifrin’s report, the
Court must determine whether he is qualified to testify as an
expert in the present case. Although Doctors’ Hospital establishes
that Dr. Schifrin is an obstetrician gynecologist and lacks formal
training in pediatric neonatology (Docket No. 44 at 3), it has
failed to establish that Dr. Schifrin is not a qualified expert
witness. See Gaydar, 345 F.3d at 24 (holding that an expert
physician does not need to be “a specialist in a particular medical
discipline

to

render

expert

testimony

relating

to

that

discipline.”). However, in his deposition Dr. Schifrin explicitly
states that although he is capable of identifying problems in the
delivery of ALG, such as if there was potential oxygen loss due to

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13

a drop in the maternal blood pressure, it is “for someone else to
state” if it caused ALG’s injuries. (Docket No. 44-1 P. 64, L. 39).
Despite the above, after reviewing Dr. Schifrin’s proffered
report, it is evident that the same is improperly founded and
therefore inadmissible. Only two and half pages of the report are
dedicated to Dr. Schifrin’s opinions. (Docket No. 44-2 at 6—8). In
this

section,

information
regarding

Dr.

such

Mrs.

Schifrin

as

the

González’s

repeatedly

fetal

states

monitoring

contractions

that

strip;

(i.e

he

lacks

annotations

their

frequency,

intensity, or duration); or any neuroradiological examinations,
including an MRI. Id. at 6-7. Consequently, in the following
instances, Dr. Schifrin indicates that he must make assumptions in
the absence of said data:
Assuming that the tracing is obtained, but
that it was not properly interpreted, then I
infer that the tracing is initially reassuring
and there is no evidence of fetal hypoxia – it
is a tracing that would permit time to discuss
and prepare for an elective cesarean section
or an attempt to undertake a trial of labor in
the expectation of a safe vaginal delivery.
[…]
In
this
respect,
given
the
limited
information, I am taking advantage of the
statement in the medical records which
acknowledges a period of hypoxia as a cause of
the patient’s CP.
[…]

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With regard to the contractions, again in the
absence of annotations about their frequency,
intensity or duration, I have assumed that the
patient
is
having
significant,
painful
contractions on admission to the labor and
delivery unit.
[…]
To the extent that the fetus was infected,
that would have been apparent on the fetal
monitor tracing as fetal tachycardia – but
this is not affirmed in the annotations that
are provided.
Id. at 6-8.
Even though he had not examined the fetal monitoring strips
at the time he rendered his expert report, Dr. Schifrin concluded
“that there was a failure in the standard of care by the nurses
and the physician to properly understand the evolution of changes
in the fetal heart rate pattern.” Id. at 8. This conclusion is not
based on sufficient facts or data nor the product of reliable
principles as required by Fed. R. Evid. 702.
Not only does the proffered expert testimony lack key medical
data, it fails cite any medical literature whatsoever. “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

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15

report in part because the expert “made no effort to connect the
medical literature to his opinions.”).
Furthermore, while Dr. Schifrin does indicate a standard of
care, the report does not specify if it is the national standard,
as required by the applicable case law, or solely his personal
opinion on the matter. See Strickland, 899 A.2d at 773–74; Porter
v. McHugh, 850 F. Supp. 2d 264, 268 (D.D.C. 2012) (“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.’”). 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.
Considering

the

above,

“there

is

simply

too

great

an

analytical gap” between the content of the report and the opinion
proffered. Gen. Elec. Co., 522 U.S. at 146. Thus, Dr. Schifrin’s
expert 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 the Defendants.
Lastly, contrary to Plaintiff’s contention, Defendants had no
duty to request that Dr. Schifrin issue a supplemental report.
(Docket No. 44 at 15).

Fed. R. Civ. P. 26(e) imposes a duty to

supplement an expert report with the information given during the

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16

expert’s deposition upon the party proposing the expert, that is,
Plaintiff in this case. The Court recognizes that a supplemental
report would have afforded Plaintiff the opportunity to correct
deficiencies in Dr. Schifrin’s report. But, perhaps the reason
that no supplemental report was issued is that the results of Dr.
Schifrin’s

deposition

were

inauspicious.

For

example,

at

his

deposition, after reviewing the fetal monitoring strips which
covered

up

to

90

minutes

before

the

delivery,

Dr.

Schifrin

testified the infant’s heart rate had a normal baseline and was
within a normal range although there were prolonged decelerations.
(Docket No. 44-1 at 72-76). He likewise admitted that, “while it
did not preclude an injury”, the baby was not asphyxiated or
depressed at the time of birth. Id. at 88.
IV. CONCLUSION
For the reasons set forth herein, the Court finds that Dr.
Schifrin’s report and proffered testimony do not fulfill the
requirements of Fed. R. Civ. P. 26, Fed. R. Evid. 702 and the
applicable case law. Wherefore, Defendant’s Motion in Limine at
Docket No. 44 is hereby GRANTED.
IT IS SO ORDERED.
In San Juan Puerto Rico, this 5th day of August 2020.
S/ RAÚL M. ARIAS-MARXUACH
United States District Judge