Diaz-Casillas et al v. Doctors' Center Hospital San Juan et al

Filing 98

OPINION AND ORDER granting in part and denying in part 53 Motion in Limine; finding as moot 65 Motion in Limine; denying 66 Motion in Limine; and denying 67 Motion in Limine. Jose Diaz, Olga Diaz and Ramos are ORDERED to su bmit an errata sheet identifying any proposed change to Kenneth Miller and Katia Davila's deposition transcripts no later than October 30, 2018. No extensions will be granted. Amended Joint Proposed Pretrial Order, Amended Proposed voir dir e Questions and Amended Proposed Jury Instructions are due February 1, 2019. Pretrial Conference is set for February 15, 2019 at 9:00 a.m. in Courtroom 2 before Judge Francisco A. Besosa; and Trial is set for February 25, 2019 at 9:00 a.m. in Courtroom 2 before Judge Francisco A. Besosa. Signed by Judge Francisco A. Besosa on 10/23/2018. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
DR. JOSÉ DÍAZ-CASILLAS, et al.,
Plaintiffs,
v.
DOCTORS’ CENTER
JUAN, et al.,

Civil No. 17-1152 (FAB)
HOSPITAL

SAN

Defendants.

OPINON AND ORDER
BESOSA, District Judge.
On September 12, 2018, the Court continued the trial pending
the disposition of four motions in limine.

(Docket No. 95.)

Plaintiffs José Díaz-Casillas (“José Díaz”), Olga Díaz-Casillas
(“Olga

Díaz”)

and

Rosa

Luz

Ramos

(“Ramos”)

(collectively,

“plaintiffs”) move to exclude the deposition transcripts of Katia
Dávila-Díaz (“Dávila”) and Kenneth Miller (“Miller”).

(Docket

Nos. 66 and 67.)

The plaintiffs also move to preclude defendants

Doctors’

Hospital

Center

San

Juan,

Inc.

(“Doctors’

Center

Hospital”) and José Pesquera-García (“Pesquera”) (collectively,
“defendants”) from calling expert witnesses at trial.
No. 65.)

(Docket

The defendants move to exclude expert testimony by José

Díaz and Boris Rojas (“Rojas”), testimony by Dávila and Iris
González (“González”), and a “Day in the Life” video of Zoraida
Díaz-Casillas (“Zoraida Díaz”).

(Docket No. 53.)

Civil No. 17-1152 (FAB)

2

For the reasons set forth below, the plaintiffs’ motion to
preclude the defendants from calling expert witnesses at trial is
MOOT. (Docket No. 65.) The plaintiffs’ motions to preclude Miller
and Dávila’s deposition transcripts are DENIED.
and 67.)

The defendants’ motion in limine is GRANTED IN PART and

DENIED IN PART.
I.

(Docket No. 66

(Docket No. 53.)

Background 1
This medical malpractice litigation stems from a purported

misdiagnosis.

(Docket No. 1.)

On February 12, 2016, Zoraida Díaz

became ill with jaundice and developed a skin condition.
p. 4.

González drove Zoraida Díaz to the Centro de Diagnóstico y

Tratamiento in Carolina, Puerto Rico.
blood

Id. at

count

exam

revealed

that

Id. at p. 4.

Zoraida

Díaz

A complete
possessed

a

“critical[ly] low value of platelets at 13,” in addition to low
levels of red bloods cells, hemoglobin, and hematocrits.
p. 5.

Id. at

Zoraida Díaz sent text messages with photos of her skin

condition to her brother José Díaz, who is a neurologist in
Houston, Texas. Id.

José Díaz urged Zoraida Díaz to be “evaluated

by a hematologist emergently.”

Id.

The Centro de Diagnóstico y Tratamiento transferred Zoraida
Díaz to the Doctors’ Center Hospital.

1

Id.

The following allegations derive from the complaint.

Her transfer sheet

See Docket No. 1.

Civil No. 17-1152 (FAB)

3

indicated that she had “petequiae in her mouth and lips and
petequiae

and

accompanied
Hospital.

hematomas

Zoraida

Díaz

on
in

her

extremities.”

an

ambulance

Id.

to

González

Doctors’

Center

Id. at p. 6.

Doctors’ Center Hospital triaged Zoraida Díaz an hour after
her arrival, classifying her as “urgent” rather than “emergency.”
Id.

The triage nurse noted that Zoraida Díaz’s skin condition was

“normal.” Id. The emergency room physician, Toru Hashida-Kurihara
(“Hashida”), evaluated Zoraida Díaz.

Id.

She informed Hashida

that José Díaz “believed her petechiae, hematomas and laboratory
values presented an emergency medical condition.”
Hashida consulted with Pesquera, a hematologist.
prescribed

one

unit

of

platelets

and

a

Id. at p. 7.
Id.

Pesquera

corticosteroid.

Id.

According to the plaintiffs, Pesquera did so without obtaining
results

from

diagnostic

tests,

including

“a

smear, an LDH test, and an ADAMTS 13 test.”

peripheral
Id. at p. 8.

blood
The

plaintiffs maintain that these tests are necessary to distinguish
between “TTP and ITP,” both of which are blood-related diseases.
Id.

Pesquera diagnosed Zoraida Díaz with ITP.

Id.

The plaintiffs allege that blood smears are “ordered on a
regular basis when a person is being treated or monitored for a
blood cell-related disease.”

Id.

Zoraida Díaz received a blood

Civil No. 17-1152 (FAB)

4

smear four days after arriving at Doctors’ Center Hospital.
at p. 9.

Id.

The blood smear “yielded a value of 5805 when the

hospital’s reported accepted range is between [] 313—618.”
Subsequently,

Zoraida

Díaz’s

sight

diminished,

incoherent and lost control of her extremities.

she
Id.

Id.

became
Pesquera

ordered a Head CT scan, which “indicated that the images were
deteriorated

by

the

disorientation.”

patient’s

motion,

aggressiveness

Id. at p. 11.

Pesquera subsequently altered his diagnosis.
He

concluded

and

that

Zoraida

Díaz

suffered

from

Id. at p. 11.
TTP.

Id.

The

plaintiffs aver that the “administration of platelets to a patient
with TTP is contraindicated because it causes thrombi or blood
clots, which can be life threatening.”

Id. at p. 8.

The standard

TTP treatment includes a “plasmapheresis or, in the alternative,
a plasma transfusion.” Id. at p. 11. The Doctors’ Center Hospital
did not administer a plasmapheresis or a plasma transfusion. Id.
If left untreated, TTP “can be fatal or cause lasting damage, such
as brain damage or stroke.”
another

hospital

plasmapheresis.

in

Puerto

Id.

Zoraida Díaz transferred to

Rico,

where

she

received

a

Id. at p. 12.

The plaintiffs allege that Zoraida Díaz sustained “permanent
ischemic damage,” after which point her family transported her to

Civil No. 17-1152 (FAB)

5

Texas for additional medical treatment.

Id.

José Díaz visited

Zoraida Díaz in Texas daily, at times as her attending physician.
Id. at p. 16.

She remains in a “permanent vegetative state,

completely incapacitated and unable to do anything for herself,
even speak.”

Id. at pp. 12—13.

At the time of her alleged

misdiagnosis, Zoraida Díaz was 60 years old and “had no physical
limitations.”

Id. at p. 14.

On February 7, 2017, José Díaz, Olga Díaz and Ramos commenced
this civil action.
Díaz’s siblings.

(Docket No. 1.) 2

Id. at p. 2. 3

The plaintiffs are Zoraida

The complaint sets forth a medical

malpractice cause of action pursuant to the Puerto Rico General
Torts Statue, Articles 1802 and 1803 of the Civil Code (“Articles

2 Zoraida Díaz, her daughter Dávila, and other family members commenced a
parallel civil action in the Puerto Rico Court of First Instance, San Juan
Superior Division. (Docket No. 53 at p. 2; see Dávila-Díaz v. Doctors’ Center
Hospital San Juan, Civil No. 2017—1881.)
3

The plaintiffs invoke this Court’s diversity jurisdiction, alleging complete
diversity of citizenship among the parties, and that the amount in controversy
exceeds $75,000. Docket No. 1 at p. 1; citing 28 U.S.C. § 1332. José Díaz and
Ramos reside in Texas.
(Docket No. 1 at p. 2.)
Olga Díaz resides in
Pennsylvania.
Id.
Doctors’ Center Hospital is a corporation incorporated
pursuant to the laws of Puerto Rico, and maintains its principal place of
business in Puerto Rico. Id. Pesquera practices medicine in Puerto Rico. Id.
The plaintiffs seek $3,000,000 in damages. Id. at p. 34. The Court is satisfied
that, based on the allegations set forth in the complaint, diversity
jurisdiction exists in this civil action.

Civil No. 17-1152 (FAB)
1802 and 1803”).

6

Id. at pp. 16—31; see Laws of P.R. Ann. tit. 31

§§ 5141, 5142. 4
The

complaint
Pesquera,

Hospital,

names

five

Hashida,

defendants:

Guardian

Doctors’

Insurance

Center

Company,

Inc.

(“Guardian Insurance”), and Sindicato de Aseguradores para la
Suscripción

Conjunta

Médico-Hospitalaria

de

Seguro

de

(“SIMED”).

Responsibilidad

Id.

The

Court

Profesoinal
granted

the

plaintiffs’ motions to dismiss the complaint without prejudice as
to Guardian Insurance and SIMED.

(Docket Nos. 15 and 30.)

Hashida

failed to answer the complaint, despite several attempts to serve
process on him personally and by publication.
20, 26—28.
Hashida.

See Docket Nos. 18,

On June 5, 2017, the Clerk entered default against

(Docket Nos. 33 and 34.)

Accordingly, Doctors’ Center

Hospital and Pesquera are the only remaining defendants in this
litigation.

The parties filed four motions in limine.

Nos. 53, 65, 66 and 67.)
these motions.

4

(Docket

The Court continued trial to adjudicate

(Docket Nos. 82 and 95.)

The Court applies Puerto Rico tort law to this diversity suit. See Quality
Cleaning Prod. R.C., Inc. v. SCA Tissue N. Am., LLC, 794 F.3d 200, 204 (1st
Cir. 2015) (“Federal courts sitting in diversity apply the substantive law of
the state and, pursuant to statute, Puerto Rico is treated as a state for
diversity purposes.”).

Civil No. 17-1152 (FAB)
II.

7

The Plaintiffs’ Motions in Limine
The

plaintiffs

filed

Nos. 65, 66 and 67.)

three

motions

in

limine.

(Docket

José Díaz, Olga Díaz and Ramos seek to

preclude the Doctors’ Center Hospital and Pesquera from presenting
expert testimony at trial, and from using the transcripts from
Dávila and Miller’s depositions.

Id.

For the reasons sets forth

below, the plaintiffs’ motions in limine are either MOOT or DENIED.
A.

Motion to Preclude Expert Testimony
The plaintiffs move to preclude the defendants from

calling expert witnesses at trial.

(Docket No. 65.)

José Díaz,

Olga Díaz and Ramos argue that “[n]either defendant announced any
. . . experts and provided no reports in a timely fashion and must,
thus, be precluded from using any expert witnesses at trial in
this case.”

Id. at p. 3.

In their opposition to the plaintiffs’

motion in limine, the Doctors’ Center Hospital and Pesquera clarify
that “there is no designation by either defendant that they would
be using an expert in this case.”

(Docket No. 76 at p. 2.)

Accordingly, the plaintiffs’ motion to preclude the defendants
from calling expert witnesses at trial is MOOT.
B.

Motion
to
Transcript

Preclude

Kenneth

Miller’s

Deposition

José Díaz, Olga Díaz and Ramos designated Kenneth Miller
as an expert witness.

(Docket No. 58 at p. 34.) Miller is a

Civil No. 17-1152 (FAB)

8

hematologist and will “testify regarding the breaches in [the]
standard of medical care by Co-Defendants, as described in his
expert

report

and

explained

in

his

deposition.”

defendants deposed Miller on May 16, 2018.
p. 1.) 5
(“Rule

Id.

The

(Docket No. 66 at

The plaintiffs invoke Federal Rule of Civil Procedure 30
30”),

claiming

that

the

Doctors’

Center

Hospital

and

Pesquera failed to timely Miller’s deposition transcript timely.
(Docket No. 66 at p. 2.)

Rule 30 provides that:

On request by the deponent or a party before the
deposition is completed, the deponent must be allowed 30
days after being notified by the deponent officer that
the transcript or recording is available in which: (A)
to review the transcript or recording; and (B) if there
are changes in form or substance, to sign a statement
listing the changes and the reasons for making them.
Fed. R. Civ. P. 30(e)(1) (emphasis added). 6

The Court may impose

sanctions for failure to comply with Rule 30. See Perkasie Indus.,
Corp. v. Advance Transformer, No. 90-7359, 1992 U.S. Dist. LEXIS
22431 *13 (E.D. Pa. June 11, 1992) (“Although there is no express
language in Fed. R. Civ. P. 30(e) authorizing the imposition of

5

The plaintiffs’ motion in limine states that Miller’s deposition occurred on
June 16, 2018. (Docket No. 66 at p. 1.) The defendants, however, maintain
that “the deposition of doctor Miller was taken on May 16, 2018.”
(Docket
No. 77 at p. 3.) Indeed, José Díaz, Olga Díaz and Ramos acknowledge that the
defendants’ deposed Miller on May 18, 2018 in the joint proposed pretrial order.
(Docket No. 58 at p. 35.) Accordingly, the Court construes the plaintiffs’
reference to June 16, 2018 as a typographical error.

6

In the context of Rule 30(e), the “officer” is the court reporter. See Holland
v. Cedar Creek Mining, Inc., 198 F.R.D. 651, 653 (S.D.W. Va. 2001).

Civil No. 17-1152 (FAB)

9

sanctions for violations of the rules (compare Fed. R. Civ. P.
37(b)), I am satisfied that the court has the inherent power to do
so.”).
José Díaz, Olga Díaz and Ramos misinterpret Rule 30.
They refer to date of Miller’s deposition, not the date in which
the

court

reporter

provided

recording [was] available.”

notice

“that

the

transcript

or

Fed. R. Civ. P. 30(e)(1); see EBC,

Inc. v. Clark Bldg. Sys., 618 F.3d 253, 266 (3d Cir. 2010) (“We
emphasize that Rule 30(e)’s thirty-day clock beings to run when
the party is notified by the court reporter that the transcript is
available for review, not when the party or deponent physically
receives the transcript from the court reporter.”) (citing cases). 7
Without reference to the date that the transcripts were available,
preclusion of the transcripts would be improper.
The Court notes that Rule 30 allots litigants “30 days”
to review and “attach any changes” to the transcript.

7

Fed. R.

See also Steven J. Inc., ex rel., Fenton v. landmark Am. Ins. Co., Case No.
14-474, 2015 U.S. Dist. LEXIS 80278 *18 n.10 (M.D. Pa. June 22, 2015) (denying
the plaintiff’s request to preclude deposition transcript in part because the
parties failed to cite the date in which the defendants “received notification
that their transcripts were available for review”); Superior Prod. P’ship v.
Gordon Auto Body Parts Co., No. 06-916, 2009 U.S. Dist. LEXIS 25889 *3 (S.D.
Ohio Mar. 12, 2009) (“Both parties’ memoranda focused on the question of when
the transcript was truly ‘available’ which, in turn, determines when the 30day period time limit for reviewing and making changes begins to run.”); Harvey
v. Tenneco, Inc., No. 98-7137, 2000 U.S. Dist. LEXIS 1694 *4 (N.D. Ill. Feb.
11, 2000) (“[T]he 30-day time limit is measured by submission to the court
reporter.”).

Civil No. 17-1152 (FAB)

10

Civ. P. 30(e)(2). The Doctors’ Center Hospital and Pesquera assert
that the plaintiffs received the transcript on August 22, 2018,
more than thirty days ago. (Docket No. 77 at p. 3.)

It bears

emphasis that in seeking to preclude the Doctors’ Center Hospital
and

Pesquera

defendants

do

from
not

using

Miller’s

identify

any

deposition

errors

in

transcript,

form

or

the

substance.

(Docket No. 66.)
Accordingly,

the

Court

DENIES

plaintiffs’

motion

to

preclude the Doctors’ Center Hospital and Pesquera from using
Miller’s deposition transcript.

In the interest of fairness,

however, José Díaz, Olga Díaz and Ramos are ORDERED to submit a
proposed errata sheet identifying any proposed change to Miller’s
deposition transcript no later than October 30, 2018.
C.

Motion to
Transcript

Preclude

Katia

Dávila-Díaz’s

Deposition

José Díaz, Olga Díaz and Ramos move to preclude the
Doctors’

Center

Hospital

and

Pesquera

deposition transcript pursuant to Rule 30.

from

using

Dávila’s

(Docket No. 67.)

defendants deposed Dávila on November 14, 2017.

Id. at p. 1.

The
The

parties stipulated that “Ms. Katia Dávila would have thirty (30)
days to examine his [sic] deposition, make any corrections to it,
after which term it would be deemed correct and signature waived.”
Id.

José Díaz, Olga Díaz and Ramos fail to specify when the court

Civil No. 17-1152 (FAB)

11

reporter provided notice that the transcript was available, or
whether the plaintiffs received the transcript.

The absence of

this information prevents the Court from considering the merits of
the plaintiffs’ Rule 30 motion.

Tellingly, José Díaz, Olga Díaz

and

errors

Ramos

fail

transcript.
to

preclude

transcript.

to

specify

any

in

Davila’s

deposition

Accordingly, the Court DENIES the plaintiffs’ motion
the

defendants

from

using

Dávila’s

deposition

Again, the Court ORDERS the plaintiffs to submit a

proposed errata sheet identifying any error contained in Dávila’s
transcript no later than October 26, 2018.
III. The Defendants’ Motion in Limine
The Doctors’ Center Hospital and Pesquera move to exclude the
following evidence from trial: (1) expert testimony by José Díaz,
(2)

expert

testimony

by

Rojas,

(3)

testimony

by

Dávila,

(3) testimony by González, and (4) a “Day in the Life” video.
(Docket No. 53.) 8

The defendants’ motion in limine is GRANTED IN

PART with respect to expert testimony by José Díaz, and DENIED IN
PART with respect to expert testimony by Rojas, testimony from
Dávila, testimony from González, and the “Day in the Life” video.

8

The Court granted Pesquera’s requests to join the Doctors’ Center Hospitals’
motion in limine and responses in opposition to the plaintiffs’ motions in
limine. (Docket Nos. 54, 91, 92 and 93.)

Civil No. 17-1152 (FAB)
A.

12

Testimony by José Díaz
The

Doctors’

Center

Hospital

and

Pesquera

move

to

preclude José Díaz from testifying as an expert witness pursuant
to Federal Rule of Civil Procedure 26 (“Rule 26”).
at pp. 2—4.)

(Docket No. 53

Because the plaintiffs failed to designate José Díaz

as an expert witness in violation of Rule 26, the defendants argue
that

preclusion

is

proper

pursuant

Procedure 37 (“Rule 37”). Id.

to

Federal

Rule

of

Civil

The Court agrees.

José Díaz’s designation as a fact witness, an expert
witness,

or

a

hybrid

of

the

two

plaintiffs complied with Rule 26.
committee

note

(a

witness

may

will

determine

whether

the

See Fed. R. Evid. 701, advisory
“provide

both

lay

and

expert

testimony in a single case”); Ting Ji v. Bose Corp., 538 F. Supp.
2d 354, 359 (D. Mass. 2008) (holding that “the roles of fact

Civil No. 17-1152 (FAB)
witness

and

expert

13
witness

are

not

necessarily

mutually

exclusive”). 9
1.

Federal Rule of Civil Procedure 26
Rule 26 governs the disclosure of witnesses.

R. Civ. P. 26.

Fed.

The purpose of Rule 26 is to prevent “trial by

ambush,” because opposing counsel cannot adequately cross-examine
without advance preparation.

Macaulay v. Anas, 321 F.3d 45, 50,

52 (1st Cir. 2003) (affirming the preclusion of evidence because
“[t]he record shows beyond the hope of contradiction that she had
ample time to conduct discovery and to submit her expert reports
within the period allotted by the district court”).

Parties must

disclose any potential fact witness “likely to have discoverable
information,” within 14 days after the Rule 26(f) conference. Fed.
R. Civ. P. 26(a)(1)(C).

9 Testimony by a lay witness is “rationally based on the perception of the
witness.” United States v. Flores de Jesús, 569 F.3d 8, 20 (1st Cir. 2009)
(citing Fed. R. Evid. 701). “Rule 26 uses the term expert ‘to refer to those
persons who will testify under Rule 702 of the Federal Rules of Evidence with
respect to scientific, technical, and other specialized matters.’” Gómez v.
Rivera Rodríguez, 344 F.3d 103, 113 (1st Cir. 2003). Pursuant to Rule 702, a
witness may provide expert testimony if doing so “will help the trier of fact
to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702;
see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993); see also
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49 (1999) (holding that Daubert
applies to technical and other specialized expert testimony as well as to
scientific testimony); Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992)
(“Expert witnesses may perform two roles: explaining evidence to a jury, and
acting as the source of evidence for a jury.”). The Federal Rules of Evidence
prohibit lay witnesses from offering testimony regarding “topics that are beyond
the understanding of an average juror.” United States v. Williams, 827 F.3d
1134, 1156 (D.C. Cir. 2016).

Civil No. 17-1152 (FAB)
Expert
disclosure

14
witnesses

requirements.

are

Fed.

R.

subject

Civ.

P.

to

additional

26(a)(2).

Unless

otherwise ordered by the Court, parties must identify expert
witnesses “at least 90 days before the date set for trial or for
the case to be ready for trial.”

Id.; compare Downey v. Bob’s

Disc. Furniture Holdings, 633 F.3d 1, 5 (1st Cir. 2011) (“At its
most basic level, [Rule 26] obligates a party who wishes to offer
expert testimony to disclose ‘the identify of any witness it may
use at trial to present evidence under Federal Rules of Evidence
702, 703, or 705.”) (citation omitted), with Goldman v. Philips &
Son Drilling, Inc., No. 13-125,
(D.W.

Va.

June

9,

2014)

2014 U.S. Dist. LEXIS 77970 *7

(“Unlike

expert

witnesses

or

hybrid

witnesses, however, when a person is merely a fact, or lay witness,
Rule 26 of the Federal Rules of Civil Procedure only requires the
party to disclose the name, address and telephone number of each
witness.”).
Rule 26 also requires each party to supplement or
correct its disclosures “in a timely manner if the party learns
that

in

some

material

respect

incomplete or incorrect.”

the

disclosure

or

response

Fed. R. Civ. P. 26(3)(1)(A).

is

In the

event of an untimely disclosure, the movant “is not allowed to use
that information or witness to supply evidence on a motion, at a

Civil No. 17-1152 (FAB)

15

hearing, or at a trial, unless the failure was substantially
justified or is harmless.”
2.

Fed. R. Civ. P. 37(c)(1).

Lay and Expert Testimony
To distinguish lay from expert testimony, courts

analyze “the essence of the proffered testimony.”
at 113.

Gómez, 344 F.3d

“The line between expert testimony under [Federal Rule of

Evidence 702] and lay opinion under [Federal Rule of Evidence 701]
is not easy to draw.”

United States v. Ayala-Pizarro, 407 F.3d

25, 28 (1st Cir. 2005) (citation omitted) (holding that a police
officer qualified as a lay witness and expert witness, because he
possessed

‘particularized

knowledge

.

.

.

by

virtue

of

his

position”); Castro-Medina v. P&G Commer. Co., 565 F. Supp. 2d 343,
361

(D.P.R.

2008)

(Pérez-Giménez,

J.)

(holding

that

the

distinction between a lay and an expert witness “lies in the nature
of the witness’s involvement in the case and the nature of the
testimony

the

parties

intend

for

the

witness

to

proffer”).

Accordingly, the content of José Díaz’s proposed testimony – not
his status as a plaintiff or as a neurologist - is dispositive.
3.

Discussion
The Court initially set trial for September 10,

2018.

(Docket No. 22.)

On June 9, 2017, the parties filed a joint

case management memorandum.

(Docket No. 35.)

In the memorandum,

Civil No. 17-1152 (FAB)

16

the plaintiffs identified José Díaz as a “factual witness,” not an
expert witness.

Id. at pp. 25—26. 10

The plaintiffs expressed

their intention to elicit testimony from José Díaz regarding:
His personal knowledge of the development of his
sister’s condition and the events that transpired while
she was receiving treatment in Texas. Will also testify
about his sister’s current physical state, his own
emotional pain and suffering, and the emotional pain and
suffering he witnessed in his niece and nephew, now main
caretakers of his disabled sister.
Id. at p. 25 (emphasis added).

The Court ordered the parties to

disclose and exchange the names and CV’s of experts by July 7,
2017.

(Docket No. 36.)

January 26, 2018.

The defendants deposed José Díaz on

(Docket No. 68, Ex. 1)

Seven months later and seventeen days before trial
was

set

to

commence,

the

parties

pretrial order on August 20, 2018.

submitted

a

joint

proposed

(Docket No. 58.)

In this

order, the plaintiffs listed José Díaz as a fact witness and an
expert witness.

Id. at pp. 32 and 35.

The plaintiffs disclosed

José Díaz as an expert witness regarding:
Zoraida Díaz Casillas’ past as well as her current
physical and neurological state. Will also testify as
to the endeavors he took and the medical care he provided

10

José Díaz, Olga Díaz and Ramos initially designated three experts: (1) a
“Hematologist expert on negligence,” (2) a life care plan expert, and (3) an
economic expert. (Docket No. 35 at p. 26.) Prior to the joint case management
memorandum, the plaintiffs identified José Díaz as witness with “knowledge of
his emotional damages and of Zoraida Díaz Casillas’s physical condition.”
(Docket No. 53, Ex. 1 at p. 1.).

Civil No. 17-1152 (FAB)

17

Zoraida while she was in Texas and in P.R. after the
incident subject of this case.
Id. at p. 35. 11
a.

José Díaz is a Percipient Fact Witness
No party disputes that José Díaz is a lay

witness.

He may testify regarding his personal knowledge of the

events that transpired before and after Zoraida Díaz’s alleged
misdiagnosis in accordance with the Federal Rules of Evidence.
The plaintiffs assert, however, that evidence concerning “the
medical care [José Díaz] provided Zoraida while she was in Texas
and in P.R.” constitutes expert testimony.
p. 35.)

(Docket No. 58 at

The Court disagrees.
José

Díaz’s

experience

as

his

sister’s

treating physician qualifies him to testify as a percipient fact
witness, not as an expert witness.

“[A] percipient witness who

happens to be an expert” is not necessarily an expert witness

11

The plaintiffs also modified the description of José Díaz as a fact witness.
(Docket No. 58 at p. 32.) The joint proposed pretrial order provides that José
Díaz:
Will testify as to his close relationship with his sister, Zoraida
Díaz Casillas and his emotional damages he has suffered as a result
of the medical malpractice.
He will testify as to Zoraida Díaz
Casillas’s medical condition as well as his participation in trying
to ensure she obtain proper care at Doctor’s Hospital and subsequent
treatment in PR and Texas. His knowledge as a neurologist gives
him particular insight as to his sister’s pain and suffering which,
in turn, affects his own.

Id. at p. 32.

Civil No. 17-1152 (FAB)
within the meaning of Rule 26.

18
Gómez, 344 F.3d at 113 (citing

Fed. R. Evid. 702) (holding that although “Pinot obviously had
specialized knowledge by virtue of his position,” the defendants
“need not identify [him] as an expert so long as [he] played a
personal role in the unfolding of the events at issue and the
anticipated questioning seeks only to elicit [his] knowledge of
those events”); see Downey, 633 F.3d at 6 (“[W]here, as here, the
expert is part of the ongoing sequence of events and arrives at
his causation opinion during treatment, his opinion testimony is
not that of a retained or specially employed expert.”).

Testimony

that is “based on personal knowledge acquired before any litigation
had begun” is not expert testimony.

Id.

(noting that “courts

have followed the advisory committee’s lead and ruled that a
treating physician, testifying as to his consultation with or
treatment of the patient, is not an expert witness for purposes of
Rule 26”).
The circumstances in González v. Executive
Airlines are analogous to this case. 236 F.R.D. 73 (D.P.R. 2006)
(Pieras, J.).

In González, the plaintiff disclosed that she

intended to call her treating psychiatrist as a lay witness.

Id.

The defendants objected, however, arguing that the psychiatrist
qualified as an expert witness.

Id.

The court rejected this

Civil No. 17-1152 (FAB)

19

proposition, holding that “a treating physician is an actor in the
actual narrative of the case.”

Id. at 76; see e.g., Torres-Rivera

v. Centro Médico Del Turano Inc., 215 F. Supp. 3d 202,, 205 (D.P.R.
2016) (Gelpí, J.) (“Dr. Ramdev will provide testimony arising from
his role as an actor in the events giving rise to litigation, and
is therefore appropriately viewed as a fact witness not subject to
Rule

26’s

requirements

for

expert

witnesses.”)

(citation

and

internal quotation marks omitted); Hadley v. Pfizer, Inc., No. 081440, 2009 U.S. Dist. LEXIS 47363 *11—12 (E.D. Pa. June 4, 2009)
(“The Court agrees that a treating physician may testify as a fact
witness, pursuant to Rule 701, so long as the treating physician’s
testimony

is

‘not

based

on

scientific,

technical,

or

other

specialized knowledge within the scope of Rule 702.”) (citation
omitted).

Because the testimony provided by the plaintiff’s

psychiatrist concerned only “the facts known to him during the
course of the care and treatment of the patient,” the disclosure
requirements pursuant to Rule 26 did not apply.

Id. at 78.

Like the physiatrist in González, José Díaz
served as Zoraida Díaz’s treating physician, attending to his
sister’s care in Houston. (Docket No. 68 at p. 11 and 20.)

The

plaintiffs misconstrue evidence concerning “the endeavors that
[José Díaz] undertook and the medical care he provided Zoraida

Civil No. 17-1152 (FAB)

20

while she was in Texas and in P.R.” as expert testimony.
No. 68 at p. 11.)

This testimony is factual in nature.

(Docket
José Díaz

served as his sister’s treating physician before this litigation
commenced.

He is “an actor with regard to the occurrences from

which the tapestry of the lawsuit was woven.”
113.

Gómez, 44 F.3d at

Indeed, the plaintiffs concur that José Díaz acted as a

“treating physician.”

Id.

Accordingly, José Díaz may testify

regarding the treatment he provided Zoraida Díaz as a percipient
fact witness.
b.

José Díaz as an Expert Witness
The plaintiffs seek to elicit expert testimony

from José Díaz regarding “Zoraida Díaz Casillas’ past as well as
her current physical and neurological state.”
p. 35.)

(Docket No. 58 at

According to the plaintiffs:

[A]s an expert in Neurology [. . .] his testimony would
further help to understand the permanent state of her
damages as a result of defendants’ malpractice and
further help them understand why him, as a physician
with specialized knowledge of her current condition, has
suffered immensely in knowing the state of alertness,
pain, helplessness and suffering her [sic] sister is
experiencing as a result of having been left in a
‘locked-in’ state following defendants’ negligent acts.
(Docket No. 68 at p. 13.)
Testimony concerning Zoraida Díaz’s physical
and neurological state may require “scientific, technical, or

Civil No. 17-1152 (FAB)

21

other specialized knowledge” pursuant to Federal Rule of Evidence
702.

(Docket No. 58 at p. 35.)

By designating José Díaz as an

expert witness, plaintiffs trigger the disclosure requirements set
forth in Rule 26(a)(2). The Court ordered the parties to “disclose
and exchange the names and CVs of experts by [July 7, 2017].”
(Docket No. 36.)

The plaintiffs concede that they violated this

deadline, affirming that it was not until August 2, 2018 that the
“Plaintiffs listed [José Díaz] as both a fact witness and an expert
witness

who

physicians.”

was

also

one

of

Zoraida

Díaz

Casillas’

treating

(Docket No. 68 at p. 10) (emphasis added).
The

exclusion

of

José

Díaz

as

an

expert

witness is an appropriate and warranted sanction. Rule 37 requires
exclusion unless the party facing sanctions establishes that the
failure to comply was justified or harmless.
of

New

England,

Inc.,

250

F.3d

10,

20-21

Wilson v. Bradlees
(1st

Cir.

2001).

Exclusion is a compelling impetus to follow the Federal Rules of
Civil Procedure and the schedule set by the Court.
v. Square D Co., 960 F.2d 239, 245 (1st Cir. 1992).

See Thibeault
Introducing

“new expert testimony on the eve of trial” can prejudice the
opposing party, and will not be admitted without good cause.
at 247.

Id.

“Rules 26(a) and 37(c)(1) seek to prevent the unfair

tactical advantage that can be gained by failing to unveil an

Civil No. 17-1152 (FAB)

22

expert in a timely fashion.”

Poulis-Minott v. Smith, 388 F.3d

354, 358 (1st Cir. 2004) (citing Thibeault, 960 F.2d at 244).
The Court may forgo sanctions for untimely
disclosures
harmlessness.

upon

a

finding

See, e.g., id.

of

substantial

justification

or

The Court must balance fairness to

the parties with the need to manage dockets, considering the
totality

of

litigation,

the
the

circumstances,
need

for

such

the

as:

the

challenged

history

of

evidence,

the
any

justifications, prior notice of the expert and the possibility of
designation, whether the testimony will be meaningfully different
from or cover the same areas as that of other experts, and the
ability of the opposing counsel to depose or cross-examine the
proposed expert.

Macaulay, 321 F. 3d at 51; see Ferrara &

DiMercurio v. St. Paul Mercury Ins. Co., 240 F.3d 1, 10-11 (1st
Cir. 2001).
before

trial

A late disclosure is harmless if it “occurs long
and

is

likely

subject

to

materially prejudicing the opposing party.

correction”

without

Samos Imex Corp. v.

Nextel Communs., Inc., 194 F.3d 301, 305 (1st Cir. 1999); see
Ferrara & DiMercurio, 240 F.3d at 10.
This litigation commenced nearly two years ago
on February 2, 2017.

(Docket No. 2.)

The plaintiffs knew of José

Díaz’s existence and the expert testimony he could potentially

Civil No. 17-1152 (FAB)

23

offer because José Díaz is a plaintiff.

José Díaz sat for his

deposition on January 26, 2018, a year after the plaintiffs filed
the complaint.

(Docket No. 68, Ex. 1).

At the time of his

deposition, the plaintiffs identified José Díaz only as a fact
witness, and it is with this understanding that the defendants
deposed him.

See Docket No. 35 at p. 25.
In support of their contention that the Court

should allow José Diaz to testify as an expert, the plaintiffs
argue that the Doctors’ Center Hospital and Pesquera “had ample
opportunity to explore all aspects of Zoraida Díaz Casillas’
physical condition and his opinion as an expert in the Neurology
field.”

(Docket No. 68 at p. 3.)

The plaintiffs are mistaken.

The Doctors’ Center Hospital and Pesquera had no reason to explore
José Diaz’s opinions as a neurologist when they deposed him because
the plaintiffs had not designated him as a neurological expert
prior to that date.

The First Circuit Court of Appeals has

recognized that Rule 26 “require[s] formal disclosure for a reason;
without it, parties like the defendants in this case may be
hindered in their ability to prepare effectively for trial.”
Esposito v. Home Depot, U.S.A., 590 F.3d 72, 78 (1st Cir. 2009);
see Musser v. Gentiva Health Servs., 356 F.3d 751, 756—759 (7th
Cir. 2004) (affirming the district court’s decision “that the

Civil No. 17-1152 (FAB)

24

[fact] witnesses identified by the [plaintiffs] should not be
permitted to testify as expert witnesses” because “disclosing a
person as a [fact] witness and disclosing a person as an expert
witness are two distinct acts,” and the defendant “was denied the
opportunity to question the witnesses in their expert capacity”).
The plaintiffs named José Díaz as an expert
witness one month before the trial was set to commence, further
underscoring the prejudice resulting from the plaintiffs’ untimely
disclosure.

Ironically, José Díaz, Olga Díaz and Ramos seek to

preclude Doctors’ Center Hospital and Pesquera from calling expert
witnesses, because the defendants “did not disclose and exchange
names and CV’s of experts” by the July 7, 2017 deadline.
No. 58 at p. 35.)

(Docket

With great temerity, the plaintiffs assert

that the “[the Doctors’ Center Hospital and Pesquera] cannot
willfully disregard the Court approved deadlines and be allowed to
bring in expert witnesses many months after the passage of these
deadlines.”
Ramos.

Id. at p. 36.

Neither can José Díaz, Olga Díaz and

“A litigant who ignores a case-management deadline does so

at his peril.”

Rosario-Díaz v. González, 140 F.3d 312, 315 (1st

Cir. 1998) (affirming sua sponte dismissal of summary judgment
motion “[g]iven the baldness of the appellants’ transgressions,
the potential prejudice to the plaintiffs and to the orderly

Civil No. 17-1152 (FAB)

25

administration of the court’s docket caused by the late filings,
and the need to deter such conduct”).
c.

Expert
Testimony
Emotional Damages

Regarding

José

Díaz’s

José Díaz may testify as to his emotional
damages without qualifying as an expert witness.

See Ricks v.

Abbot Labs., 198 F.R.D. 647, 649 (D. Md. 2001) (“A trier of fact,
however, does not need help understanding the ordinary grief,
anxiety, anger and frustration that any person feels when something
bad occurs.”). Expert testimony offered to establish a plaintiff’s
emotional distress is admissible, but not required.

Koster v.

TWA, 181 F.3d 24, 35 (1st Cir. 1999) (“Although testimony from a
mental health expert is not required to sustain an award for
emotional distress, the absence of such evidence is useful in
comparing the injury to the award of damages.”); see e.g., MéndezMatos v. Municipality of Guaynabo, 557 F.3d 36, 47 (1st Cir. 2009)
(“A plaintiff does not need to present expert testimony to recover
damages for emotional distress caused by the violation of his civil
rights.”) (citation omitted).

José Díaz need not qualify as an

expert in neurology to convey the extent of his emotional pain.

Civil No. 17-1152 (FAB)

26

The Court will allow José Díaz to testify as
a lay witness, but not as an expert. 12

As discussed below, the

plaintiffs may nonetheless elicit the testimony of Boris Rojas,
the neurologist whom they properly designated as an expert.

The

defendants’ motion to preclude José Díaz from testifying as an
expert witness is GRANTED.
B.

Testimony by Boris Rojas
The

Doctors’

Center

Hospital

and

Pesquera

preclude Rojas from testifying as an expert witness.
No. 53 at p. 4—7.)

move

to

(Docket

According to the plaintiffs, Rojas “will

testify that the TTP . . . caused the permanent Center Nervous
System damage, leaving [Zoraida Díaz] totally and permanently
incapacitated, but aware in a locked in condition.” (Docket No. 58
at p. 35.)

The defendants emphasize that Zoraida Díaz is not a

party to this litigation.

Because José Díaz, Olga Díaz and Ramos

seek damages for their own pain and suffering, the Doctors’ Center
Hospital and Pesquera contend that “discussion of [Zoraida Díaz’s]

12

Rule 26 requires that expert witnesses “retained or specially employed to
provide expert testimony in the case or one whose duties as the party’s employee
regularly involve giving expert testimony” submit a written report. Fed. R.
Civ. P. 26(a)(2)(B). This report must specify inter alia the expert witness’
qualifications and a “complete statement of all opinions the witness will
express and the basis and reasons for them.” Id. The Doctors’ Center Hospital
and Pesquera argue that José Díaz, Olga Díaz and Ramos failed to submit an
expert report. (Docket No. 53.) Because preclusion of José Díaz as an expert
witness is premised on the plaintiffs’ untimely disclosure, the Court need not
address whether the report requirement is applicable in this case.

Civil No. 17-1152 (FAB)

27

state of health in this case significantly impacts the likelihood
that the jury could be confused, misled, and entertains damages
claims that are not probative for the claims presented of pain and
suffering before this Court.” (Docket No. 53 at pp. 5—6.)

The

Doctors’ Center Hospital and Pesquera cite Federal Rule of Evidence
403 (“Rule 403”), contending that Rojas’ proposed testimony will
“be unfairly prejudicial.”
1.

Id. at p. 7.

The Court disagrees.

Federal Rule of Evidence 403
“Relevant evidence is admissible unless any of the

following provides otherwise:

the United States Constitution; a

federal statute; [the Federal Rules of Evidence]; or other rules
prescribed by the Supreme Court.”
evidence is not admissible.”

Fed. R. Evid. 402.

Id.

“Irrelevant

“Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than
it

would

be

without

the

evidence;

and

consequence in determining the action.”

(b)

the

fact

is

Fed. R. Evid. 401.

of
The

Federal Rules of Evidence “set a very low bar for relevance.”
United States v. Rodríguez-Soler, 773 F.3d 289, 293 (1st Cir. 2014)
(internal citation omitted).
Relevant evidence may be excluded, however, “if its
probative value is substantially outweighed by a danger of . . .
unfair prejudice.”

Fed. R. Evid. 403.

“In balancing the scales

Civil No. 17-1152 (FAB)

28

of Rule 403, it is important to note that only unfair prejudice is
to

be

avoided,

prejudicial.”
119

(1st

omitted).

as

by

design,

all

evidence

is

meant

to

be

United States v. Morales-Aldahondo, 524 F.3d 115,

Cir.

2008)

(internal

quotation

marks

and

citation

“Evidence is generally deemed unfairly prejudicial if

it has an undue tendency to prompt a decision by the factfinder on
an improper basis.”

United States v. Benedetti, 433 F.3d 111, 118

(1st Cir. 2005).
2.

The Testimony that the Plaintiffs Intend to Elicit
from Boris Rojas is Relevant and Not Unduly
Prejudicial
The testimony that José Díaz, Olga Díaz and Ramos

intend to elicit from Rojas is relevant to the medical malpractice
claims set forth in the complaint.

(Docket No. 1.)

Pursuant to

Puerto Rico law, “individuals who are harmed because a close
relative or loved one is tortiously injured may invoke Article
1802 as a vehicle for prosecuting a cause of action against the
tortfeasor.”

Díaz-Nieves v. United States, 858 F.3d 678, 689 (1st

Cir. 2017) (citation omitted).

To prevail on a derivative medical

malpractice claim, the plaintiffs must demonstrate that: (1) they
suffered emotional harm, (2) their emotional harm resulted from
the defendants’ tortious conduct toward Zoraida Díaz, and (3) the

Civil No. 17-1152 (FAB)

29

defendants’ “conduct was tortious or wrongful.”

Díaz-Nieves, 858

F.3d at 689.
José

Díaz,

Olga

Díaz

and

Ramos

may

seek

“compensation for the sufferings, emotional distress, or mental
anguish they experienced as a consequence of the material or other
damages caused directly to [Zoraida Díaz].”

Santana-Concepción v.

Centro Médico del Turabo, Inc., 768 F.3d 5, 10 (1st Cir. 2014)
(quoting Santini-Rivera v. Serv. Air., Inc., 137 D.P.R. 1 (1994).
Because “a cause of action under Article 1802 ‘is wholly derivative
. . . its viability is contingent upon the viability of the
underlying [claim].’”

Costa-Urena v. Segarra, 590 F.3d 18, 30

(1st Cir. 2009) (citation omitted); see Díaz-Nieves, 858 F.3d
at 689 (“Because, as previously discussed, the district court
correctly dismissed Joel’s claims, the derivative claims of his
relatives

were

also

properly

dismissed.”).

Accordingly,

the

plaintiffs’ medical malpractice claim is contingent on a finding
of negligence on the part of the defendants toward Zoraida Díaz.
See Méndez-Matos, 557 F.3d at 57 (holding that an Article 1802
claim

asserted

by

the

son

and

wife

of

a

falsely

imprisoned

individual “is derivative and depends on the viability of the
underlying claim of the relative or loved one”).

Civil No. 17-1152 (FAB)

30

Medical malpractice liability in Puerto Rico is
fault based.

Rodríguez-Díaz v. Seguros Triple-S, 636 F.3d 20, 23

(1st Cir. 2011).

Pursuant to Article 1802, “a person who by an

act

causes

or

omission

damage

to

another

through

fault

negligence shall be obliged to repair the damage done.”

or

P.R. Laws

Ann. tit. 31, § 5141. “Within this rubric, three elements coalesce
to make up a prima facie case for medical malpractice (a species
of professional negligence).”

Martínez-Serrano v. Quality Health

Servs. of P.R., Inc., 568 F.3d 278, 285 (1st Cir. 2009).

To prove

medical malpractice in Puerto Rico, a plaintiff must establish:
“‘(1) the duty owed (i.e., the minimum standard of professional
knowledge
(2) an

and

act

or

skill

required

omission

in

the

relevant

transgressing

that

circumstances),

duty,

and

(3)

a

sufficient causal nexus between the breach and the claimed harm.’”
Torres-Lazarini v. United States, 523 F.3d 69, 72 (1st Cir. 2008)
(citing Cortés-Irizarry, 111 F.3d at 189).
The Doctors’ Center Hospital and Pesquera attempt
to

isolate

Zoraida

Díaz

from

this

litigation,

plaintiffs’ medical malpractice claim in a vacuum.
cognizant

that

Zoraida

Díaz

is

not

a

party.

placing

the

The Court is
The

purported

misdiagnosis of Zoraida Díaz, however, is relevant and integral to
the plaintiffs’ claims.

Testimony “that the TTP . . . caused the

Civil No. 17-1152 (FAB)

31

permanent Center Nervous System damage” is critical, particularly
with regard to the causation element of plaintiffs’ negligence
claim.

(Docket No. 58 at p. 35.)

This evidence is also material

to the emotional damages allegedly sustained by José Díaz, Olga
Díaz and Ramos.

The Doctors’ Center Hospital and Pesquera provide

no reason for the Court to conclude that the probative value of
Rojas’

proposed

testimony

is

danger of unfair prejudice.

substantially

outweighed

by

the

Accordingly, the Court DENIES the

defendants’ motion to preclude expert testimony by Rojas.
B.

Testimony by Katia Dávila-Díaz
The defendants move to preclude the testimony by Dávila

for two reasons.
Center

Hospital

(Docket No. 53 at p. 7.)
and

Pesquera

contend

First, the Doctors’

that

Dávila’s

proposed

testimony exceeds the scope of the plaintiffs’ Rule 26 disclosure.
Id. at p. 8.

Second, the defendants maintain that Dávila’s

proposed testimony “is an attempt by plaintiff to bring forth to
the jury the damages of Zoraida that certainly, if heard by the
jury, will certainly confuse the jury at the time of assessing the
award for damages of the federal plaintiffs.”
The

parties

need

not

detail

Id. at p. 9.

with

specificity

the

testimony of potential fact witnesses pursuant to Rule 26.

The

initial disclosure requirements mandate that parties name “each

Civil No. 17-1152 (FAB)

32

individual likely to have discoverable information — along with
the subject of that information – that the disclosing party may
use to support its claims or defenses, unless the use would be
solely for impeachment.”

Fed. R. Civ. P. 26(a)(1)(A)(i).

José

Díaz, Olga Díaz and Ramos stated that Dávila “has knowledge of
Zoraida Díaz Casillas’s treatment, condition and current physical
state.”

(Docket No. 53, Ex. 1 at p. 2.)

This disclosure is

sufficient pursuant to Rule 26.
The plaintiffs also seek to elicit testimony from Dávila
concerning the “plaintiffs’ relationships past and present with
her mother as well as how her mother’s present condition has
affected them.”

(Docket No. 58 at p. 32.) 13 Whether this testimony

is relevant, not unduly cumulative, and is supported by a proper
foundation will be determined in the context of trial.

13

José Díaz, Olga Díaz and Ramos initially provided a more extensive description
of Dávila’s proposed testimony, including:
her personal knowledge of the development of her mother’s condition,
her own, her brother’s, and her mother’s suffering while Zoraida
was hospitalized and receiving negligent care, and the events that
transpired while her mother was receiving treatment in Texas. Will
also testify about her mother’s current physical state and her
current medical requirements, the care she provides to her disabled
mother daily, her own emotional pain and suffering, the economic
losses that this has entailed for her family unit, including but
not limited to the loss of her earnings outside of the home.

(Docket No. 35 at p. 25.) Because Dávila is not a party to this case, evidence
concerning Dávila’s emotional and economic damages is irrelevant. The emotional
pain endured by Dávila’s brother is also irrelevant.

Civil No. 17-1152 (FAB)

33

The Court rejects the defendants’ contention that the
jury will award the “damages of Zoraida” to José Díaz, Olga Díaz
and Ramos.

(Docket No. 53 at p. 9.)

The Court will instruct the

jury that the plaintiffs are eligible only for damages arising
from their own emotional distress, not for the damages sustained
by Zoraida Díaz or Dávila. 14

Accordingly, the plaintiffs’ motion

to restrict Dávila’s testimony is DENIED.
C.

Testimony by Iris González
The

preclude

Doctors’

testimony

Center

from

Hospital

González,

the

and

woman

Zoraida Díaz to the Doctors’ Center Hospital.
pp. 7—9.)

Pesquera
who

move

to

accompanied

(Docket No. 53 at

The plaintiffs “have decided to waive the use of this

witness for trial.”

(Docket No. 68 at p. 18.)

Accordingly, the

defendants’ motion to preclude testimony by González is MOOT.

14

Courts routinely instruct the jury to disregard the negligent acts or damages
committed and sustained by third parties. See Ponce v. Ashford Presbyterian
Cmty. Hosp., 238 F.3d 20—24 (1st Cir. 2001) (affirming the following jury
instruction: “Ashford may not be found liable for any damages which may have
been caused by the negligent acts or omissions of the treating physicians.
Plaintiffs may only recover damages against Ashford if they establish that the
injury suffered by baby Natalie Alicea Sánchez was proximately caused by
Ashford’s negligent acts or omissions”); DoCARMO v. F.V. PILGRIM I CORP., 612
F.2d 11, 13 (1st Cir. 1979) (finding “no error in the district court’s ruling
and jury instructions so limiting damages,” because “the deceased seaman’s
survivors are limited to recovering damages of a pecuniary nature”); Britton v.
Maloney, 981 F. Supp. 25, 55 n. 65 (D. Mass. 1997) (noting that the “instructions
specifically told the jury the limits on the plaintiff’s damage claims,
instructing to the jury that if they arrived at damages, they could consider”
only emotion distress).

Civil No. 17-1152 (FAB)
D.

34

The “Day in the Life” Video
The plaintiffs seek to introduce a “Day in the Life”

video into evidence. The video is approximately five minutes long.
(Docket No. 71.)
body is stiff.

In the video, Zoraida Díaz is bed-ridden and her
Id.

Dávila bends her mother’s fingers, arms, and

legs; changes her catheter; dries her hair; and performs what
appears to be visual therapy.

Id.

The defendants contend that

the video is unduly prejudicial “because it introduces a factor
into

the

case

that

might

encourage

the

jury

to

dislike

disapprove of the defendant independent of the merits.”
No. 53 at p. 14.)

or

(Docket

According to the defendants, the “Day in the

Life” video will confuse the jury pursuant to Rule 403.

Id.

The

defendants’ arguments are unavailing.
The Court possesses “broad discretion in ruling on the
admissibility of tape recordings, even where portions of the tapes
are unintelligible.”
(1st

Cir.

1991)

United States v. Font-Ramírez, 944 F.2d 47

(affirming

admission

of

video

footage

that

“place[d] Bouret and the defendants together in the apartment,
corroborating Bouret’s direct testimony”).

Video evidence “must

be judged under its own particular facts taking into account the
specific purposes for which this type of evidence is submitted.”
Szeliga v. Gen. Motors Corp., 728 F.2d 566, 567 (1st Cir. 1984);

Civil No. 17-1152 (FAB)
Farley

v.

United

35

States,

98

F.

Supp.

3d

299

(D.N.H.

2015)

(permitting the plaintiffs to admit a “day-in-the-life” video of
a stroke victim suffering from a “locked-in syndrome”); GarcíaColón v. García-Rinaldi, No. 01-1571, 2006 U.S. Dist. LEXIS 86418
*39, 40 (D.P.R. Nov. 28, 2006) (Domínguez, J.) (granting motion to
introduce “the film A Day in the Life [of plaintiff] provided
proper safeguards are taken [and] the court is also to provide an
instruction as to the lighting of the film and any other potential
inflammatory matter”).
The “Day in the Life” video of Zoraida Díaz is relevant
to the emotional distress experienced by the plaintiffs. The video
also provides corroborating evidence regarding the plaintiffs’
claim that Zoraida Díaz remains in a “permanent vegetative state.”
(Docket No. 1 p. 12.).

The Court carefully reviewed the video and

conducted a Rule 403 analysis.

The probative value of the video

is not substantially outweighed by the danger of unfair prejudice.
Before publication to the jury, the plaintiffs must properly
authenticate the video.

Accordingly, the defendants’ motion to

exclude the “Day in the Life” video is DENIED.
V.

Conclusion
For the reasons set forth above, the plaintiffs’ motion to

preclude the defendants from calling expert witnesses at trial is

Civil No. 17-1152 (FAB)

36

MOOT. (Docket No. 65.) The plaintiffs’ motions to preclude Miller
and Dávila’s deposition transcripts are DENIED.
and 67.)

(Docket No. 66

José Díaz, Olga Díaz and Ramos are ORDERED to submit an

errata sheet identifying any proposed change to Kenneth Miller and
Katia Dávila’s deposition transcripts no later than October 30,
2018.

No extensions will be granted.

The defendants’ motion in

limine is GRANTED IN PART and DENIED IN PART.

(Docket No. 53.)

The pretrial conference and trial are set for February 15, 2019
and February 25, 2019, respectively, beginning at 9:00 a.m.

No

later than February 1, 2019, the parties may file an amended joint
proposed pretrial order, amended proposed voir dire questions and
amended proposed jury instructions in accordance with this Opinion
and Order.
IT IS SO ORDERED.
San Juan, Puerto Rico, October 23, 2018.

s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE