Gonzalez-Arroyo v. Doctors' Center Hospital Bayamon, Inc. et al
Filing
74
OPINION AND ORDER: For the reasons set forth in this Opinion and Order, the Motion for Summary Judgment at Docket No. 62 is granted. Judgment dismissing the case with prejudice shall be entered accordingly. Signed by Judge Raul M. Arias-Marxuach on 7/23/2021. (mrr) Modified on 7/23/2021 to edit docket text. (ft).
Case 3:17-cv-01136-RAM Document 74 Filed 07/23/21 Page 1 of 19
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JAMILET GONZÁLEZ-ARROYO,
Plaintiff
CIVIL NO. 17-1136(RAM)
v.
DOCTORS’ CENTER HOSPITAL
BAYAMON, INC., et al.
Defendants
OPINION AND ORDER1
RAÚL M. ARIAS-MARXUACH, District Judge
Pending
before
the
Court
is
defendant
Doctors’
Center
Hospital Bayamón Motion for Summary Judgment & Legal Memorandum in
Support of the Same (“Motion for Summary Judgment” or “MSJ”) and
Statement of Uncontested Material Facts in Support of Motion for
Summary Judgment (“SUMF”) requesting the dismissal of the present
case. (Docket Nos. 62 and 62-1). Having reviewed the parties’
submissions in support and in opposition to the motion (Docket
Nos. 67 and 71), the Court GRANTS the Motion for Summary Judgment
at Docket No. 62. Judgment dismissing the case with prejudice shall
be entered accordingly.
Natasha Ramos-Ayala, a rising third-year student at the University of Puerto
Rico School of Law, assisted in the preparation of this Opinion and Order.
1
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Civil No. 17-1136(RAM)
2
I. BACKGROUND
On January 30, 2017, Jamilet González-Arroyo (“Mrs. González”
or “Plaintiff”), in representation of her minor son ALG, filed a
lawsuit
alleging
medical
malpractice
against
Doctors’
Center
Hospital Bayamón, Inc. (“the Hospital”), Dr. Benito Hernández-Díaz
(“Dr. Hernández”), his wife, and the conjugal partnership between
them, among other defendants (collectively, “Defendants”). (Docket
No. 1). On April 26, 2011, Plaintiff arrived at the Hospital and
was admitted under the care of Dr. Hernández. Id. ¶ 20. At the
time, Plaintiff’s baby had a gestational age between 37-38 weeks.
Id. That same day, Plaintiff gave birth to a male infant, ALG, by
cesarean section. Id. ¶ 29. Due to complications, ALG was admitted
to a special case nursery and was released on May 5, 2011. Id. ¶¶
33-35. ALG was later diagnosed with autism and cerebral palsy. Id.
¶ 36. Plaintiff alleges ALG’S present and future conditions were
caused by Defendants’ negligence, that is, their departures from
the medical standard of care.
Id.
¶ 46.
Specifically,
these
departures included “the failure to timely perform a cesarean
section to prevent ALG’s loss of oxygen at birth and to timely
initiate resuscitative maneuvers.” Id. ¶ 47. In addition, she
asserts Defendants’ failure to “manage and stabilize baby ALG’s
condition after his birth has been devastating. Baby ALG now is
catastrophically injured with severe brain damage as well as
physical
and
neurologic
abnormalities
that
are
permanent
and
Case 3:17-cv-01136-RAM Document 74 Filed 07/23/21 Page 3 of 19
Civil No. 17-1136(RAM)
3
incapacitating.” Id. ¶ 48. The Hospital and Dr. Hernández deny
they failed to meet the standard of care. (Docket Nos. 9 ¶¶ 29 and
31; 12 ¶¶ 22 and 24).
Plaintiff retained Dr. Barry Schifrin (“Dr. Schifrin”) as her
expert witness and notified he would testify as:
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.
(Docket No. 22 at 44).
On February 18, 2020, the Hospital filed a Motion in Limine
requesting the Court strike Dr. Schifrin as an expert. (Docket No.
44). Subsequently, on February 20, 2020, Dr. Hernández and his
wife filed a Motion for Joinder requesting to join the Hospital’s
Motion in Limine and joinder was granted. (Docket Nos. 45 and 46).
Plaintiff presented an Opposition to the Motion in Limine, and
accordingly the Hospital filed a reply. (Docket Nos. 50 and 55).
On August 5, 2020, the Court granted the Motion in Limine and
struck Dr. Schifrin’s expert report for failing to comply with the
requirements of Fed. R. Civ. P. 26, Fed. R. Evid. 702, and the
applicable case law. (Docket No. 56 at 16).
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Civil No. 17-1136(RAM)
4
On December 16, 2020, the Hospital filed a Motion for Summary
Judgment. (Docket Nos.
62).
Dr. Hernández, Jane Doe and the
conjugal partnership between them again moved for joinder and it
was
granted.
Plaintiff
(Docket
opposed
Nos.
the
63
MSJ
and
and
73).
propounded
(“Opposition to MSJ”) (Docket Nos.
February
24,
2021,
the
Hospital
On
January
29,
2021,
additional
facts
67 and 67-1).
replied
to
Lastly, on
the
opposition
(“Reply”). (Docket No. 71).
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
the
pleadings,
depositions,
answers
to
interrogatories,
and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.’”
White v. Hewlett Packard Enterprise Company, 985 F.3d 61, 68 (1st
Cir. 2021) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322).
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.
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Civil No. 17-1136(RAM)
5
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-Muñoz v. Rebarber-Ocasio, 2020 WL 4592144, at *6 (1st
Cir. 2020) (citation omitted). This burden is met “when the moving
party demonstrates that the opposing party has failed ‘to make a
showing
sufficient
to
establish
the
existence
of
an
element
essential to that party’s case, and on which that party will bear
the burden of proof at trial.’” E.E.O.C. v. Kohl’s Dept. Stores,
Inc., 774 F.3d 127, 131 (1st Cir. 2014) (quoting Celotex Corp.,
477 U.S. at 322).
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). Nevertheless, a
non-movant “cannot merely ‘rely on an absence of competent evidence
but must affirmatively point to specific facts that demonstrate
the
existence
of
an
authentic
dispute.’”
Vogel
v.
Universal
Insurance Company, 2021 WL 1125015, at *2 (D.P.R. 2021) (quoting
Feliciano-Muñoz,
2020
WL
4592144,
at
*6).
Solely
relying
on
“conclusory allegations, improbable inferences, and unsupported
speculation” is insufficient to defeat summary judgment. River
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Civil No. 17-1136(RAM)
6
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 non-movant 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.” Muñiz Negrón v. Worthington Cylinder
Corporation, 2021 WL 1199014, at *3 (D.P.R. 2021) (quoting Advanced
Flexible Circuits, Inc. v. GE Sensing & Inspection Techs. GmbH,
781 F.3d 510, 520 (1st Cir. 2015)). 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 Baum-Holland v. Hilton El Con Management, LLC., 964
F.3d.77, 87 (1st Cir. 2020) (“Because this is a diversity case, we
apply Puerto Rico's substantive law.”); 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 judgment framework) and to state law
(here, [Puerto Rico] law) for the substantive rules of decision.”).
Thus, pursuant to Puerto Rico law, a plaintiff in a medical
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Civil No. 17-1136(RAM)
7
malpractice case must prove three key 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.” 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 patients, is based on a national standard. See
Noel Martínez 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. (quotation omitted).
Under Puerto Rico law there is a presumption that “physicians
have ‘provided an appropriate level of care.’” Laboy-Irizarry v.
Hospital Comunitario Buen Samaritano, Inc., 2019 WL 3311270, at *9
(D.P.R. 2019) (quoting Borges ex rel. S.M.B.W. v. Serrano-Insern,
605 F.3d 1, 7 (1st Cir. 2010)). “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.” López Ramírez v. Grupo HIMA San Pablo, Inc., 2020 WL
5351851, *2 (D.P.R. 2020) (citation omitted). Therefore, absent
proof of the duty owed “it is virtually impossible to prove either
breach or proximate cause.” Vargas-Alicea v. Cont'l Cas. Co., 2020
Case 3:17-cv-01136-RAM Document 74 Filed 07/23/21 Page 8 of 19
Civil No. 17-1136(RAM)
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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 of
a medical malpractice claim, 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.” LaboyIrizarry, 2019 WL 3311270, at *9 (quotation omitted) (emphasis
added).
Likewise,
“[u]nder
Puerto
Rico
law,
‘[i]n
order
to
determine the applicable standard of care in a medical malpractice
action and to make a judgment on causation, a trier of fact will
generally need the assistance of expert testimony.’” LaureanoQuiñones v. Nadal-Carrión, 982 F.3d 846, 848 (1st Cir. 2020)
(quoting Pagés-Ramírez v. Ramírez-Gonzalez, 605 F.3d 109,113 (1st
Cir. 2010)).
The First Circuit has repeatedly held that expert testimony
is required to prove causation in medical malpractice suits because
it is a field where issues are “scientifically driven and more
nuanced than in most tort cases.” Martínez-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, 605 F.3d at 113;
Marcano Rivera v. Turabo Medical Ctr. P’ship, 415 F.3d 162, 167
(1st Cir. 2005) (quotation omitted) (“[A] factfinder normally
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Civil No. 17-1136(RAM)
9
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.”). Thus, the District of
Puerto Rico, time and time again, has dismissed medical malpractice
cases where the plaintiff’s sole expert report has been stricken
from the record. See e.g., Lopez Ramírez, 2020 WL 5351851 at *8;
Noel Martinez, 2020 WL 5039242, at *6; Santa Cruz Bacardi, 2020 WL
249433,
at
*9;
Laureano-Quiñones
v.
Nadal-Carrión,
2018
WL
4057264, at *3 (D.P.R. 2018), aff’d, Laureano-Quiñones, 982 F.3d
at 850; Gonzalez Rivera v. Hosp. HIMA-Caguas, 2018 WL 4676925, at
*5 (D.P.R. 2018), aff'd sub nom. Gonzalez-Rivera v. Centro Médico
Del Turabo, Inc., 931 F.3d 23 (1st Cir. 2019); Rodríguez-Sánchez
v.
United
States,
380
F.
Supp.
3d
184,
189
(D.P.R.
2016);
Rodríguez-Diaz v. Seguros Triple-S, Inc., 2009 WL 3066637, at *3
(D.P.R. 2009), aff'd, 636 F.3d 20 (1st Cir. 2011).
III. FINDINGS OF FACT
Before discussing the undisputed facts, the Court notes that
most of the material facts in Plaintiff’s Statements of Uncontested
Material Facts are based on Dr. Schifrin’s expert report. (Docket
No. 67-1 5-6). But the report was already stricken from the record
by this Court. (Docket No. 56). Furthermore, Plaintiff did not
seek
reconsideration
Opposition to MSJ.
of
this
decision
until
she
filed
her
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Civil No. 17-1136(RAM)
10
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
n.3
(1st
Cir.
2010)
(quotation omitted) (emphasis added). A stricken expert report is
not admissible evidence. See e.g., Lopez Ramírez, 2020 WL 5351851,
at *3 (explaining that facts based on an “inadmissible expert
report are not adequately supported by the record and cannot be
considered on summary judgment.”); Bailey v. United States, 115 F.
Supp. 3d 882, 893 (N.D. Ohio 2015) (finding doctor’s expert report
inadmissible and thus plaintiff had failed to proffer admissible
evidence to prove causation in a wrongful death claim); 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); Crawford v. Newport
News Indus. Corp., 2018 WL 4561671, at *82 (E.D. Va. 2018), report
and recommendation adopted in part, 2018 WL 2943445 (E.D. Va.
2018), appeal dismissed sub nom. Kershaw v. Newport News Indus.
Corp., 2018 WL 8058614 (4th Cir. 2018) (holding in a disparate
treatment claim that plaintiff may not rely on a doctor’s analysis
“for any point” since his testimony and opinions were stricken by
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Civil No. 17-1136(RAM)
11
the Court). Therefore, proffered facts based on Dr. Schifrin’s
inadmissible expert report are not adequately supported by the
record and cannot be considered on summary judgment.
After
analyzing
the
SUMF
(Docket
No.
62-1),
Plaintiff’s
additional facts (Docket No. 67-1), the Hospital’s Reply to said
facts (Docket No. 71), and only crediting material facts that are
properly supported by a record citation and uncontroverted, the
Court makes the following findings of facts:2
1.
On January 30, 2017, Plaintiff filed a civil complaint on
behalf of her minor son ALG against the Hospital, Dr.
Hernández, his wife, and the conjugal partnership between
them. (Docket No. 62-1 ¶ 1).
2.
The Complaint alleges that as a result of negligence during
the delivery, ALG sustained irreversible injuries and has
been diagnosed with cerebral palsy, among other conditions.
Id. ¶ 2.
3.
Plaintiff alleges ALG’s conditions were caused by the
Defendants’ negligence, all of whom departed from the
medical standards of care and otherwise failed to act in a
prudent, reasonable or responsible manner. Id. ¶ 3.
4.
The Complaint avers that “[D]efendants’ departures from
the medical standards of care and/or their professional
2
References to a Finding of Fact shall be cited as follows: (Fact ¶ _).
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Civil No. 17-1136(RAM)
12
negligence include, but are not limited to, the failure to
timely perform a caesarean section to prevent ALG’s loss
of oxygen at birth and to timely initiate resuscitative
maneuvers.” Id. ¶ 4.
5.
The Complaint further alleges that Defendants’ failure to
manage and stabilize ALG’s condition after birth have left
him “catastrophically injured with severe brain damage as
well as physical and neurologic abnormalities that are
permanent and incapacitating.” Id. ¶ 5.
6.
Plaintiff posits the Hospital failed to comply with the
applicable standards of the medical profession, and that
it “is vicariously liable for the negligent acts and/or
omissions incurred by its medical and nursing staff that
intervened with Mrs. González and/or baby ALG.” Id. ¶ 6.
7.
For purposes of establishing negligence and causation,
Plaintiff announced Dr. Schifrin as her expert witness and
stated he would:
[T]estify as 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.
Id. ¶ 7.
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Civil No. 17-1136(RAM)
8.
13
On August 5, 2020, the Court entered an Opinion and Order
granting the Hospital’s Motion in Limine and struck the
proffered testimony of Plaintiff’s only expert, Dr. Barry
Schifrin. Id. ¶ 8.
9.
In its Opinion, the Court found that “after reviewing Dr.
Schifrin’s proffered report it is evident that the same is
improperly founded and inadmissible.” Id. ¶ 9.
10.
The Court also held that “[n]ot only does the proffered
expert testimony lack key medical data, it fails to cite
any medical literature.” Id. ¶ 10.
11.
The Court also found that the expert report “does not
specify if the [standard of care] is the national standard
of care, as required by the applicable case law, or solely
his personal opinion on the matter.” (Docket No. 56 at 15).
12.
The
Court
concluded
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.” (Docket No. 62-1 ¶ 12).
13.
Plaintiff
did
not
file
a
separate
motion
for
reconsideration of the Court’s Opinion and Order at Docket
No. 56 within the timeframe provided by Federal Rules of
Civil Procedure 59(e). See Docket Civ. No. 17-1136 (RAM).
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14
IV. ANALYSIS
A. Plaintiff
Cannot
Request
Reconsideration
Opposition to the Motion for Summary Judgment
Plaintiff
utilized
her
Opposition
to
MSJ
to
Via
Its
request
a
reconsideration of the Court’s decision to exclude Dr. Schifrin’s
testimony at Docket No. 56. (Docket No. 67 at 1-9). The Hospital
highlighted this in its Reply. (Docket No. 71 at 1). Although
Plaintiff tried to assert arguments encouraging a reconsideration
of the Opinion and Order issued by this Court, this is not the
proper way to request reconsideration. Moreover, the request is
untimely as the Opposition to MSJ was filed over five (5) months
after the Opinion and Order at Docket No. 56.
Notably, “[t]he Federal Rules of Civil Procedure do not
specifically
provide
reconsideration.”
Development
for
United
Company,
386
the
States
filing
v.
F.Supp.3d
of
Puerto
210,
motions
Rico
213
for
Industrial
(D.P.R.
2019)
(quotation omitted). However, any motion seeking reconsideration
of a judgment or order issued by a court “is considered as a motion
to alter or amend a judgment under Federal Rule of Civil Procedure
59(e).” Villanueva-Mendez v. Nieves Vazquez, 360 F.Supp.2d 320,
323 (D.P.R. 2005). Therefore, a motion for reconsideration, as any
other motion under Rule 59(e), “must be filed no later than 28
days after the entry of the judgment.” Oquendo v. Costco Wholehouse
Corporation, 2020 WL 2457545, at *1 (D.P.R. 2020). Hence, the
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Civil No. 17-1136(RAM)
15
reconsideration requested via the Opposition to MSJ is untimely
and is insufficient to avoid summary judgment. Dr. Schifrin’s
report remains inadmissible evidence.
B. Plaintiff Cannot Prove the Hospital’s Negligent Conduct
Without Expert Testimony
The
Hospital’s
Motion
for
Summary
Judgment,
which
Dr.
Hernández, his wife and the conjugal partnership between them have
since joined, is based on Puerto Rico case law which states that
expert testimony is needed to prove the standard of care, medical
negligence, and causation in medical malpractice suits. (Docket
No. 62 at 8). The Hospital contends Plaintiff cannot prevail at
trial without expert testimony. Id. at 9. The Court agrees.
The
Court
previously
struck
Plaintiff’s
expert
report.
(Docket No. 56). The Court found that Dr. Schifrin’s expert report
was inadmissible because it: 1) concluded that there were failures
in the standard of care without grounding his conclusion “on
sufficient facts or data nor the product of reliable principles as
required by Fed. R. Evid. 702”; 2) “lack[ed] key medical data,
[as] it fails cite any medical literature whatsoever”; 3) failed
to specify if the standard of care allegedly breached by Defendants
“is the national standard, as required by the applicable case law,
or solely his personal opinion on the matter”, and 4) did “not
provide any data to sustain or explain the conclusory finding that
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Civil No. 17-1136(RAM)
16
there was a deviation from the standard of care.” (Docket No. 56
at 14-15, Facts ¶¶ 9-11).
Without
expert
testimony,
Plaintiff
cannot
establish
Defendants’ breach of a duty of care. Without establishing this
breach, Plaintiff cannot establish sufficient causation to link
Dr. Hernández and the Hospital’s alleged negligent behavior with
ALG’s current condition. Thus, expert testimony is needed to prove
if Defendants’ acts caused the “severe brain damage as well as
physical
and
neurologic
abnormalities
that
are
permanent
and
incapacitating” that ALG allegedly exhibits. (Fact ¶ 5).
Further, Plaintiff failed to proffer in her Opposition to MSJ
sufficient material facts to show that the Hospital’s medical
interventions contributed to ALG’s current state. (Docket No. 671). Plaintiff also argued that by “reserv[ing] and announc[ing]
their right to use as their own expert any expert witness announced
by defendants” in the Joint Proposed Pretrial Conference, they can
use Defendants’ sole expert witness, Dr. Gaudier, to establish
Defendants’ breach of duty of care. (Docket No. 67 at 15-17).
Plaintiff also invoked case law asserting that once an expert
report is filed in a case, said expert belongs to either side. Id.
at 17). She therefore alleges summary judgment is not proper
because she “can, and will, prove [her] case by preponderance of
the evidence through Dr. Gaudier’s testimony if necessary.” Id.
Conversely, the Hospital’s Reply posits that said argument is
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Civil No. 17-1136(RAM)
17
insufficient to overcome summary judgment because Plaintiff did
not submit Dr. Gaudier’s expert report, nor did she provide a
deposition of said expert that could illustrate that his testimony
would be favorable or enough to prove Plaintiff’s case. (Docket
No. 71 at 8-10).
The Court agrees with Plaintiff that once designated, an
expert is available to either side. See Fed. R. Civ. P. 26(b)(4)(A);
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.”) However, Plaintiff
has not submitted Dr. Gaudier’s report to the Court, nor did she
make
specific
citations
or
references
to
said
report
or
any
subsequent expert deposition in her Opposition to MSJ. (Docket No.
67). It is a basic tenet of summary judgment jurisprudence that
“the nonmovant must point to competent evidence and specific facts
to
defeat
summary
judgment.”
Bautista
Cayman
Asset
Co.
v.
Asociacion de Miembros de la Policia de Puerto Rico, 2020 WL
582941, at *1 (D.P.R. 2020) (citing Tropigas de P.R., Inc. v.
Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st
Cir. 2011)). Therefore, Plaintiff cannot rely on Dr. Gaudier’s
expert report to overcome summary judgment.
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Civil No. 17-1136(RAM)
18
Plaintiff is left without expert evidence to prove her medical
malpractice case. Moreover, her insistence that she will call Dr.
Gaudier as an expert witness shows that expert testimony is
required to assist the finder of fact in determining if Defendants’
alleged negligence caused ALG to suffer, including but not limited
to, severe brain damage as physical and neurologic abnormalities
that are permanent and incapacitating. (Fact ¶ 5). Plaintiff cannot
rely on what she hopes Dr. Gaudier might testify at trial to defeat
summary
judgment
instead
of
presenting
said
testimony
in
an
admissible evidentiary form. Plaintiff is thus missing all three
elements required to prevail in a medical malpractice case as
without expert testimony she cannot show: (1) the duty that the
Hospital and Dr. Hernández owed to ALG; (2) an act or omission on
their behalf breaching said duty; and (3) a sufficient causal nexus
between the breach and ALG’s current state. See Santa Cruz Bacardi,
2020 WL 249433, at *6.
V. CONCLUSION
Plaintiff lacks admissible expert testimony to show that
Defendants’ conduct caused ALG’s severe damages and conditions.
The Court GRANTS the Motion for Summary Judgment at Docket No. 62.
Judgment dismissing the action with prejudice shall be entered
accordingly.
Case 3:17-cv-01136-RAM Document 74 Filed 07/23/21 Page 19 of 19
Civil No. 17-1136(RAM)
19
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 23rd day of July 2021.
S/ RAÚL M. ARIAS-MARXUACH
United States District Judge
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