Clemente-Vizcarrondo et al v. Veterans Affairs Medical Center (VA Hospital)
Filing
35
OPINION AND ORDER: Defendant's Motion to Exclude Expert Testimony at Docket No. 22 is GRANTED in part and DENIED in part. Signed by Judge Raul M. Arias-Marxuach on 7/14/2020.(mrr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
REY CLEMENTE-VIZCARRONDO, et al.
Plaintiffs
CIVIL NO. 17-1144 (RAM)
v.
UNITED STATES OF AMERICA, et al.
Defendants
OPINION AND ORDER
RAÚL M. ARIAS-MARXUACH, District Judge
Pending before the court is federal Defendant’s motion to
exclude the testimony of Plaintiffs’ expert witness, Dr. Pedro A.
Murati, and his Independent Medical Evaluation of plaintiff Rey
Clemente-Vizcarrondo. (Docket No. 22). Plaintiffs filed a response
in opposition. (Docket No. 30). After reviewing the parties’
arguments, the record and the applicable law, the Court hereby
GRANTS in part and DENIES in part Defendant’s motion to exclude
the proffered expert testimony of Dr. Pedro A. Murati.
I. BACKGROUND
On
February
Clemente”),
his
1,
wife
2017,
Rey
Jacqueline
Clemente-Vizcarrondo
Torres-Rosario,
the
(“Mr.
conjugal
partnership between them, and Jey Clemente-Torres (collectively,
“Plaintiffs”) filed an action for damages against the United States
Department of Veterans Affairs (“VA Hospital” or “Defendant”)
pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b),
Civil No. 17-1144 (RAM)
2
2671, et seq and Article 1802 of the Puerto Rico Civil Code, 31
L.P.R.A. § 5141. (Docket No. 1 at 1.). Plaintiffs claim that Mr.
Clemente received negligent treatment at the VA Hospital after one
of its physicians performed “right ankle surgery” but failed to
provide any instructions or medications to avoid the formation of
blood clots or other relevant complications. (Docket No. 1 ¶ 1720). On June 30, 2017, Defendant filed an Answer to Complaint
denying any acts of alleged negligence. (Docket No. 9 at 9-12).
Plaintiffs retained Dr. Pedro A. Murati (“Dr. Murati”) as
their expert witness to testify as to his Independent Medical
Evaluation of Mr. Clemente and his findings. (Docket No. 20 at
28).
On June 10, 2019, Defendant moved to exclude Dr. Murati’s
expert witness testimony for failing to meet the requirements
established
by
Specifically,
Fed.
R.
Defendant
Evid.
alleges
702.
that:
(Docket
(1)
No.
Dr.
22
Murati
at
is
14).
not
qualified to be an expert because he is a physiatrist instead of
an internal medicine physician; (2) his report lacks any medical
literature or data to support his findings; and (3) he does not
identify the applicable medical standard of care or how the VA
Hospital physicians deviated from it. Id. at 6-11.
Plaintiffs filed a Response in Opposition to “Motion to
Exclude Expert Testimony” on July 23, 2019. (Docket No. 30).
Therein, Plaintiffs assert that: (1) Dr. Murati does not need to
Civil No. 17-1144 (RAM)
3
be an internal medicine physician to be a qualified expert in this
case; and (2) experts can make an informed opinion based on their
knowledge and training to identify the standard of care, without
supporting said opinion with medical journals. Id. at 1-2. Lastly,
Plaintiffs
allege
that
Dr.
Murati
discussed
the
applicable
standard of care in his deposition. Id. at 9-10.
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
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
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
Civil No. 17-1144 (RAM)
that
although
relevant,
4
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)
(“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. 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.” Daubert, 509 U.S. 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, 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
Civil No. 17-1144 (RAM)
5
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).
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
information:
(i) a complete statement of all opinions the
witness will express and the basis and reasons
for them;
(ii) the facts or data
witness in forming them;
considered
(iii) any exhibits that will
summarize or support them;
be
by
the
used
to
(iv) the witness's qualifications, including
a list of all publications authored in the
previous 10 years;
Civil No. 17-1144 (RAM)
6
(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)
Thus,
“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) (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 26(a)(2)(B)).
In accordance with these requirements, Fed. R. Civ. P. Rule
26(e)(2) dictates that parties have a
duty to supplement an
expert’s report by the time pretrial disclosure are due.
The duty
to supplement applies to “[c]hanges in the opinions expressed by
the expert whether in the report or at a subsequent deposition.”
Civil No. 17-1144 (RAM)
7
Fed. R. Civ. P. 26(a) advisory committee's notes.
B. 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). See also Pages-Ramirez v. Ramirez-Gonzalez, 605 F.3d
109, 114 (1st Cir. 2010). 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, 605
F.3d at 114. “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)(emphasis added).
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
Civil No. 17-1144 (RAM)
8
considers most appropriate” is considered 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.”)
C. 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
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
Corporacion
by
the
Del
medical
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,
Civil No. 17-1144 (RAM)
9
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,
plaintiffs bear the burden of refuting said presumption. Given
that “medical knowledge and training are critical to demonstrating
the parameters of a physician's duty, the minimum standard of
acceptable care [...] must ordinarily be established by expert
testimony.” Rolon-Alvarado v. Municipality of San Juan, 1 F.3d 74,
78 (1st Cir. 1993)(emphasis added). 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).
Civil No. 17-1144 (RAM)
10
III. ANALYSIS
Prior to considering the content of Dr. Murati’s testimony,
the Court must first determine if he is qualified to testify as an
expert. According to his curriculum vitae, Dr. Murati is board
certified in rehabilitation and physical medicine. (Docket No. 221 at 2). The First Circuit has clearly established that physicians
do not need to be specialists in a certain field to be qualified
experts. See Gaydar, 345 F.3d at 24. In any case, an expert
physician’s area of expertise would only affect the weight of their
opinion, not its admissibility. See Payton, 780 F.2d at 155. See
also Mitchell, 141 F.3d at 15 (holding that an internist with
specialties
in
hematology
and
oncology,
could
testify
as
to
physicians' treatment of colonoscopy patient in wrongful death
suit, even though he was not a specialist in gastroenterology).
Therefore, contrary to Defendant’s allegations, Dr. Murati is
qualified to testify in the present medical malpractice case
despite
being
a
physiatrist
and
not
an
internal
medicine
specialist.
Despite being qualified, for Dr. Murati’s testimony to be
admissible, it must be both reliable and relevant. Reliability in
this context requires that the testimony be based on sufficient
data and/or facts and is the product of trustworthy principles.
For the testimony to be considered relevant, it must help the trier
of
fact
to
understand
the
evidence
or
determine
a
fact
of
Civil No. 17-1144 (RAM)
11
consequence in issue.
Dr. Murati’s report begins by summarizing Mr. Clemente’s
account of his medical treatment, complaints and medical records.
(Docket No. 22 at 2-4). Afterwards,
Dr. Murati
provides his
physical examination of Mr. Clemente, as well as his subsequent
impressions and recommendations as to Mr. Clemente’s condition.
Id. at 5-7. Specifically, Plaintiffs’ proffered expert concludes
that:
This examinee’s current diagnoses are within all
reasonable medical probability a direct result from the
right ankle surgery that occurred on 02-06-15, for which
extended immobility was recommended without prophylaxis
for [deep vein thrombosis] DVT in a [sic] examinee whose
risk for DVT was present secondary to the procedure
performed, the extended recommended immobility of 8
weeks and the examinee’s pre-existing obesity. Id.
Dr. Murati does not provide any medical literature or data to
support this conclusory opinion beyond his own examination of Mr.
Clemente and his medical record. Plaintiffs contend that he was
not required to do so. In his deposition, Dr. Murati stated that
he did not do any research to arrive to his conclusion nor did he
review any publications or authorities. (Docket No. 22-3 at 20).
If an expert witness is “relying solely or primarily on experience,
then the witness must explain how that experience leads to the
conclusion reached, why that experience is a sufficient basis for
the opinion, and how that experience is reliably applied to the
facts.” Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1201
Civil No. 17-1144 (RAM)
12
(11th Cir. 2010) (quoting Committee Note on Fed. R. Evid. 702)
(emphasis added). When a proffered expert physician’s report lacks
any medical literature, data, or even a more basic explanation of
how their conclusion was reached, as is the case here, said report
is inherently unreliable. “The trial court's gatekeeping function
requires more than simply ‘taking the expert's word for it.’” Id.
Thus, given the report’s lack of support for Dr. Murati’s proffered
opinion on the standard of care, this Court must conclude that
there is “simply too great an analytical gap between the data and
the opinion proffered.” Gen. Elec. Co., 522 U.S. at 146.
In addition to being unreliable, Dr. Murati’s report does not
explain, or even define, deep vein thrombosis, why Mr. Celemente
was at risk for developing this condition, how his right ankle
surgery could have caused it, how it could have been avoided, or
why prophylaxis would have been proper for a patient like Mr.
Clemente. Thus, in addition to being unreliable, it would also be
unhelpful to the trier of fact.
Lastly, in their Response in Opposition, Plaintiffs provide
excerpts of Dr. Murati’s deposition in which he allegedly indicated
the
applicable
standard
of
care.
(Docket
No.
30
at
9-10).
Essentially, in his deposition, Dr. Murati testified that it is
“general medical knowledge” that “if you immobilize a leg after
surgery” you should provide anticoagulation to avoid thrombosis,
especially if the person is high risk. (Docket Nos. 30 at 9; 30-1
Civil No. 17-1144 (RAM)
13
at 2-3). However, when explicitly asked what was the standard of
care that VA Hospital personnel deviated from, Dr. Murati responded
“I cannot give you a specific quotation for standard of care at
this moment.” (Docket No. 22-3 at 20). Likewise, Dr. Murati did
not provide any specific source from which a standard of care could
be identified.
Both First Circuit and District Court case law provides that
an expert witness may sometimes imply a standard of care in their
testimony without articulating the “magic words.” See CortesIrizarry v. Corporacion Insular De Seguros, 111 F.3d 184, 190 (1st
Cir. 1997) (holding that references to a “prevailing medical
standard” used by the “average gynecologist” was sufficient to
establish
a
standard
of
care).
In
this
case,
Dr.
Murati
specifically states in his Deposition that he cannot provide the
standard
of
care.
However,
even
if
Dr.
Murati’s
deposition
testimony would have clearly stated the national standard of care,
this would not suffice to supplement Dr. Murati’s expert report.
Plaintiffs would have been obligated to supplement their proffered
expert report to reflect the content of the subsequent deposition
pursuant to Fed. R. Civ. P. 26(a). See Ciomber v. Coop. Plus, Inc.,
527 F.3d 635, 642 (7th Cir. 2008) (holding that “Rule 26(a)(2)
does
not
allow
parties
to
cure
deficient
expert
reports
by
supplementing them with later deposition testimony” because doing
so would “completely undermin[e]” the purpose of expert reports).
Civil No. 17-1144 (RAM)
14
IV. CONCLUSION
The Court finds that Dr. Pedro A. Murati is qualified to be
an expert. However, the portions of his report and proffered
testimony
as
to
the
causation
of
Mr.
Clemente’s
diagnoses,
negligence and medical malpractice do not fulfill the requirements
of Fed. R. Evid. 702 and the applicable case law. Wherefore,
Defendant’s Motion to Exclude Expert Testimony at Docket No. 22 is
hereby GRANTED in part and DENIED in part. Specifically, the
following portion of the expert report is STRICKEN:
This examinee’s current diagnoses are within all
reasonable medical probability a direct result from the
right ankle surgery that occurred on 02-06-15, for which
extended immobility was recommended without prophylaxis
for [deep vein thrombosis] DVT in a [sic] examinee whose
risk for DVT was present secondary to the procedure
performed, the extended recommended immobility of 8
weeks and the examinee’s pre-existing obesity.
(Docket No. 22-2 at 6). The remaining portions of the expert report
are ADMITTED.
Moreover, Dr. Murati is barred from testifying as to the
standard of care and negligence allegedly incurred by VA Hospital.
Dr. Murati may provide testify regarding the remaining portions of
the report, including his medical evaluation of Mr. Clemente and
Mr. Clemente’s degree of impairment.
IT IS SO ORDERED.
In San Juan Puerto Rico, this 14th day of February 2020.
S/ RAÚL M. ARIAS-MARXUACH
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?