United States Court of Appeals
For the First Circuit
No. 08-1831
DILMA PAGÉS-RAMÍREZ; MICHAEL PIETRI-POZZI; CONJUGAL PARTNERSHIP
PIETRI-POZZI; G.P.P., minor,
Plaintiffs, Appellants,
v.
DR. ANTONIO RAMÍREZ-GONZÁLEZ; SINDICATO DE ASEGURADORES PARA LA
SUSCRIPCIÓN CONJUNTA DE SEGUROS DE RESPONSIBILIDAD PROFESIONAL
MÉDICO-HOSPITALARIA (SIMED),
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
Before
Torruella, Lipez, and Howard, Circuit Judges.
David Efron, with whom Joanne V. González-Varon was on brief,
for appellants.
Eugene F. Hestres-Vélez, with whom Ramonita Dieppa Law
Offices, Ramonita Dieppa-González, Bird Bird & Hestres, P.S.C., E.
Francois Hestres-Rodríguez, and María Z. Trigo-Ferraioulli were on
brief, for appellees.
May 19, 2010
LIPEZ, Circuit Judge. In this diversity malpractice
action, the appellants claim that their son, G.P.P., suffered
catastrophic injuries during and immediately following his birth
because of the negligence of appellee, Dr. Antonio Ramírez-
González, the obstetrician who performed G.P.P.'s delivery. After
the plaintiffs presented their case-in-chief to a jury, the
district court granted judgment as a matter of law in favor of
Ramírez-González. The Court concluded that the plaintiffs'
evidence was insufficient to establish two elements of a medical
malpractice claim: a departure from the relevant standard of care
and a causal relationship between the departure and the harm to
their son.
On appeal, the plaintiffs argue that the district court
committed reversible error when it made several evidentiary rulings
that resulted in the exclusion of expert testimony. Because we
agree that the district court improperly limited the testimony of
one of the plaintiffs' experts, Dr. Carolyn Crawford, we vacate the
judgment for Ramírez-González and remand for further proceedings.
I.
A. Background
Consistent with the applicable standard of review for a
judgment as a matter of law, we recite the relevant facts in the
light most favorable to the plaintiffs. See EnergyNorth Natural
Gas, Inc., v. Century Indem. Co., 452 F.3d 44, 46 (1st Cir. 2006).
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Defendant, Dr. Antonio Ramírez-González,1 was plaintiff Dilma
Pagés-Ramírez's physician during her pregnancy with G.P.P. and
attended at his birth. Pagés-Ramírez visited Dr. Ramírez-González
on at least seven occasions for prenatal care during her pregnancy.
She was expected to deliver on or around June 1, 2005.
On May 19, 2005, Pagés-Ramírez arrived at Hospital
Auxilio Mutuo in active labor. When her labor did not progress
over the next few hours, she received intravenous Pitocin, a drug
used to increase the frequency of contractions, her water was
artificially broken, and an epidural anaesthetic was begun. When
Pagés-Ramírez was fully dilated, an attempt was made to use vacuum
extraction to deliver G.P.P. That attempt was unsuccessful.
Ramírez-González eventually delivered G.P.P. by cesarean section
("c-section").
After the delivery, Pagés-Ramírez required the
transfusion of four units of blood. She remained hospitalized
until May 24, 2005. G.P.P. was in critical condition when he was
delivered. He remained in intensive care until August 5, 2005,
when he was discharged to another hospital where he continued to
receive treatment for brain damage and physical abnormalities.
G.P.P.'s current prognosis is bleak. He has permanent brain damage
1
Ramírez-González has a medical malpractice policy issued by
Insurers Syndicate for the Joint Underwriting of Medical-Hospital
Professional Liability Insurance (SIMED). SIMED is also a named
defendant in this action.
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and has been diagnosed with cerebral palsy. Due to organ damage,
he must be fed through a tube in his abdominal wall. Those
conditions are not expected to improve over time.
On May 11, 2007, Pagés-Ramírez brought this suit in
federal district court along with her husband, Michael Pietri
Pozzi, on behalf of themselves and G.P.P. (collectively "the
plaintiffs"), alleging that medical malpractice by Ramírez-González
and Hospital Español Auxilio Mutuo de Puerto Rico caused
catastrophic injury to G.P.P.2 Early in the litigation, the
plaintiffs reached a confidential settlement with the hospital and
its insurer, Admiral Insurance Company.
The plaintiffs' remaining malpractice claims against
Ramírez-González alleged, specifically, that Ramírez-González
departed from the standard of care by, among other things, failing
to elicit a comprehensive obstetrical history from Pagés-Ramírez,
failing to estimate G.P.P.'s fetal weight and to enter it into the
delivery record, attempting a mid-pelvic delivery by vacuum
extraction, failing to use an internal fetal heart monitor, and
failing to timely call for a c-section delivery. The plaintiffs
claimed that those deviations from the standard of care resulted in
profound multi-organ damage to G.P.P., as well as respiratory
2
The plaintiffs are residents of Orlando, Florida. The
defendant is a resident of Puerto Rico, where the events described
in the complaint occurred. The district court had jurisdiction
pursuant to 28 U.S.C. § 1332(a)(2).
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failure, sepsis, asphyxia and seizures. They further alleged that
they have suffered emotional anguish as a result of the trauma to
G.P.P., and that, due to their limited economic resources, G.P.P.
has not been able to receive sufficient medical care or therapy.
B. The Trial
Trial by jury began on May 1, 2008. The plaintiffs
proposed to call three medical expert witnesses as part of their
case-in-chief. One of those experts, an obstetrician, failed to
appear because of illness, and the trial court ruled that his
deposition testimony could not be admitted into evidence in his
absence. When the plaintiffs called their next two medical
experts, a specialist in neonatal/perinatal medicine3 and a
neurologist, the court limited the testimony of each one, ruling
that the doctors were not qualified to offer testimony on either
the appropriate standard of care for an obstetrician in Ramírez-
González's position, or on the issue of whether any deviations from
the standard of care caused the injuries to G.P.P.
Predictably, when the plaintiffs had finished presenting
their case, the court had to grant Ramírez-González's motion for
judgment as a matter of law. Without the testimony of their
missing expert and with their two remaining medical experts
3
Perinatology is the branch of medicine concerned with the
care of the mother and fetus during pregnancy, labor, and delivery.
Neonatology is the branch of medicine concerned with the care,
development, and diseases of newborn infants.
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precluded from testifying on the standard of care and causation,
the plaintiffs did not have enough evidence to support their
claims.
Although the plaintiffs contest all of the abovementioned
evidentiary rulings on appeal, we focus here on the court's ruling
that the plaintiffs' expert in neonatal and perinatal medicine, Dr.
Carolyn Crawford, would not be permitted to offer testimony on the
standard of care and causation. As we explain, that erroneous
ruling alone requires a new trial.
II.
A. Elements of Medical Malpractice
This diversity suit is governed by the substantive law of
Puerto Rico. See Marcano Rivera v. Turbado Med. Ctr., 415 F.3d
162, 167 (1st Cir. 2005). In Puerto Rico, as in many
jurisdictions, in order to prevail on a medical malpractice claim,
"a party must establish (1) the duty owed; (2) an act or omission
transgressing that duty; and (3) a sufficient causal nexus between
the breach and the harm." Id. (citation omitted). In the context
of medical malpractice actions, the Puerto Rico Supreme Court has
explained that a physician's duty is "to offer his or her patient
that medical care, attention, skill, and protection that, in the
light of the modern means of communication and education, and
pursuant to the current status of scientific knowledge and medical
practice, meets the professional requirements generally
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acknowledged by the medical profession." Santiago Otero v. Méndez,
1994 P.R.-Eng. 909,224 (1994). To prevail, a plaintiff must prove
by a preponderance of the evidence both that the standard of care
was not met, and that the failure to meet an acceptable standard
caused the harm. Id. In 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. See Rojas-Ithier v. Sociedad
Espanola de Auxilio Mutuo y Beneficiencia de P.R., 394 F.3d 40, 43
(1st Cir. 2005) (citing Rolon-Alvarado v. Municipality of San Juan,
1 F.3d 74, 78 (1st Cir. 1993)); Lama v. Boras, 16 F.3d 473, 478
(1st Cir. 1994)).
B. Admission of Expert Testimony
The admission of expert testimony is governed by Federal
Rule of Evidence 702. Rule 702 requires that expert testimony be
(1) "based upon sufficient facts or data," (2) "the product of
reliable principles and methods," and (3) that the witness apply
"the principles and methods reliably to the facts of the case." We
have described the trial judge as the gatekeeper in applying Rule
702's admissibility criteria. Gaydar v. Sociedad Instituto Gineco-
Quirurgico y Planificacion Familiar, 345 F.3d 15, 24 (1st Cir.
2003). The judge must decide "whether the scientific, technical,
or other specialized knowledge [the expert] offers 'will assist the
trier better to understand a fact in issue.'" Id. (quoting United
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States v. Alzanki, 54 F.3d 994, 1005 (1st Cir. 1995)). The judge
must ensure that an expert's testimony "'both rests on a reliable
foundation and is relevant to the task at hand.'" United States v.
Mooney, 315 F.3d 54, 62 (1st Cir. 2002) (quoting Daubert v.
Merrell Dow Pharm., 509 U.S. 579, 597 (1993)). As part of its
inquiry, the trial court must "determine 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). We have explained,
however, that "[t]he proffered expert physician need not be a
specialist in a particular medical discipline to render expert
testimony relating to that discipline." Gaydar, 345 F.3d at 24.
In Mitchell, we held that an expert, an internist with a
specialty in hematology and oncology, was qualified to opine on the
standard of care that should have been met by a gastroenterologist
performing a colonoscopy. 141 F.3d at 15. Similarly, in Gaydar,
we found that "the mere fact that [an expert] was not a
gynecologist does not mean that he was not qualified to give expert
testimony regarding [the plaintiff's] pregnancy." 345 F.3d at 24.
Although credentials such as board certification in a
particular medical specialty may indicate that an expert's opinion
is "entitled to greater weight," such certification has "never been
held a prerequisite to qualification as an expert medical witness."
Alvarado v. Weinberger, 511 F.2d 1046, 1049 (1st Cir. 1975) (per
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curiam). Indeed, we have noted that it would be an abuse of
discretion to exclude testimony that would otherwise "assist the
trier better to understand a fact in issue," simply because the
expert does not have the specialization that the court considers
most appropriate. Gaydar, 345 F.3d at 24-25 (citing Holbrook v.
Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir. 1996) (finding an
abuse of discretion when the trial judge prohibited physician
specializing in internal medicine from opining on plaintiff's
cancer because he was not an oncologist)).
C. Dr. Crawford's Credentials
Dr. Carolyn Crawford is a specialist in pediatrics and
neonatal and perinatal medicine. The pretrial order specified that
the plaintiffs would call her as an "expert in neonatology
regarding her review of the pertinent records, the standards of
care within her field of expertise applicable to this case, the
defendants' departures from such standards, about [G.P.P.'s]
condition and the causal relationship between said condition and
the defendants' departures." Upon Ramírez-González's motion, the
parties conducted a Daubert inquiry outside the presence of the
jury into Dr. Crawford's credentials. See Daubert, 509 U.S. 579.
At that hearing, Dr. Crawford was asked to elaborate on her
qualifications, which we summarize here.
After obtaining her medical degree, Dr. Crawford
completed a pediatric residency followed by a fellowship in
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neonatal-perinatal medicine. She is board certified in neonatal-
perinatal medicine. As a specialist in neonatal-perinatal
medicine, Dr. Crawford deals with "problems during pregnancy,
labor, and delivery that [a]ffect [the baby]." She served for
several years as the medical director of the Southern New Jersey
Perinatal Cooperative. In that role, she developed a statewide
educational program called Perinatal Emergencies. Her team
presented a "standard of care, that is the appropriate thing to do
in such a situation. For instance, with fetal monitoring, that
when uterine hyper stimulation occurs, that you did a number of
things. You turn off the Pitocin. You give fluids, oxygen, change
position. Subsequently, we recommended that [terbutaline], which
is a uterine relaxation drug, be considered to relax the uterus,
allow better blood flow and oxygen to the fetus; and that the
patient be evaluated for a timely delivery."
Dr. Crawford has written chapters for several published
medical books. Most relevantly, she authored a chapter on fetal
asphyxia, which covers the administration of Pitocin, and a chapter
entitled, "Differential Diagnosis of Respiratory Distress," which
was intended "to help physicians understand when they have a baby
that wasn't breathing or a baby that had breathing problems how to
differentiate what the cause of those were."
Although Dr. Crawford does not perform c-sections, she
has served as a consultant in high-risk deliveries and "set the
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wheels in motion" when she determined that a c-section was
indicated. Thus, she "can identify the problems and prepare the
patient." She has been "trained to identify ominous patterns on a
fetal monitor and to evaluate whether the patient is likely to be
able to deliver quickly vaginally or whether a cesarean section
will be needed." She also conducts peer review evaluations of
unexpected outcomes after delivery. Such review involves taking
into account "the obstetrical care, the obstetrical nursing care,
the delivery care, the neonatal management." Dr. Crawford has
previously been qualified to testify on departures from the
standard of care in obstetrics in both state and federal cases.
D. The Decision to Limit Dr. Crawford's Testimony
After hearing the evidence outlined above, the district
court issued an order precluding Dr. Crawford from providing "her
opinion as to obstetrical standards of care, departures from these
standards, or causation in this case." The court agreed with
Ramírez-González's argument that "because Dr. Crawford's experience
and training is not in obstetrics and gynecology, she cannot
provide expert testimony regarding the alleged departures in the
standards of care committed by Defendant [], an obstetrician-
gynecologist." Citing Dr. Crawford's lack of board certification
in obstetrics and gynecology and her statement that it is typically
an obstetrician/gynecologist who "makes the final decisions
regarding a woman in labor," the court ruled that Dr. Crawford
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would not be permitted to "testify as to the events that occurred
before and during the cesarean section," and that she could not
"provide any testimony pertaining to the cause of [G.P.P.]'s
injuries." Dr. Crawford proceeded to testify only about G.P.P's
medical conditions and the testing that he underwent immediately
following his birth.
We review a trial court's decision to admit or exclude
expert testimony for abuse of discretion. Gaydar, 345 F.3d at 24.
A "district court enjoys substantial discretion to decide whether
to admit or exclude relevant expert testimony." Mitchell, 141 F.3d
at 14. As we described above, the judge's task is to ensure that
the expert's testimony "'both rests on a reliable foundation and is
relevant to the task at hand.'" Mooney, 315 F.3d at 62 (quoting
Daubert, 509 U.S. at 597). In carrying out this responsibility,
the trial court must bear in mind that an expert with appropriate
credentials and an appropriate foundation for the opinion at issue
must be permitted to present testimony as long as the testimony has
a "tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence." Fed. R.
Evid. 401. An unduly restrictive review of the relevant expertise
of a physician is incompatible with what we have characterized as
a liberal standard of relevance. Mitchell, 141 F.3d at 14 (quoting
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Daubert, 509 U.S. at 587) (noting that Rule 401's "'basic standard
of relevance [] is a liberal one'").
In light of these standards, we conclude that the
district court abused its discretion when it refused to permit Dr.
Crawford to testify on the relevant standard of care and causation.
The court mistakenly relied on Dr. Crawford's lack of board
certification in obstetrics and gynecology to preclude her from
testifying. In its Opinion and Order granting Ramírez-González's
motion for judgment as a matter of law, the court explained:
Dr. Crawford testified that she was not
board-certified in OB/GYN, and that she had no
privileges to administer [P]itocin to a
patient or to perform a cesarean section. She
further testified that although she serves as
a consultant at high-risk[] births, it is the
OB/GYN who actually delivers the baby and
makes the final decisions regarding the
delivery.
Accordingly, the Court rule[s] that Dr.
Crawford's testimony be limited to exclude any
testimony regarding OB/GYN standards of care,
departures from OB/GYN standards of care, and
causation.
The court thus found that because Dr. Crawford herself is not
certified to administer Pitocin or perform c-sections, she would
not be qualified to opine on the alleged departures from the
standards of care committed by Ramírez-González, an obstetrician-
gynecologist.
That logic is flawed. The dispositive question is not
whether an expert is board certified in a particular medical
specialty. Rather, the Rules of Evidence require that the judge
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admit expert testimony relevant to the disposition of the case when
it will assist the trier of fact in understanding a fact in issue
and rests on a reliable foundation. See Fed. R. Evid. 702; Mooney,
315 F.3d at 62; Gaydar, 345 F.3d at 24.
Dr. Crawford's credentials easily meet and, indeed,
surpass the standard for admissibility of expert testimony. She is
board-certified in, and practices, perinatal and neonatal medicine.
As enumerated above, she has published book chapters that deal with
the administration of Pitocin. She has served as a consultant at
high-risk deliveries and has recommended that c-sections be
performed. She conducts peer review evaluations that involve
taking into account the obstetrical and delivery care that a
patient is given, and she has worked on guidelines for responding
to perinatal emergencies. She has "scientific, technical, [and]
other specialized knowledge" that "will assist the trier better to
understand a fact in issue." Gaydar, 345 F.3d at 24 (citation
omitted). Her knowledge "rests on a reliable foundation," Mooney,
315 F.3d at 62, i.e., her medical education and many years of
experience in the field. Her testimony is "relevant to the task at
hand." Id. Indeed, without Dr. Crawford's testimony on causation
and the standard of care, the plaintiffs were unable to present
evidence on two elements of their case.
Trying to defend the district court's ruling on a
different ground, Ramírez-González argues that, whether or not she
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was properly credentialed to serve as an expert, Dr. Crawford's
testimony was correctly excluded because the plaintiffs did not
disclose her prior to the trial as an expert in the appropriate
standard of care and causation. In making this argument, Ramírez-
González attempts to analogize the district court's limitation on
Dr. Crawford's testimony in this case to the district court's
preclusion of expert testimony that we recently upheld in
Martínez-Serrano v. Quality Health Services. of Puerto Rico, Inc.,
568 F.3d 278 (1st Cir. 2009). In that case, the plaintiffs
"attempted to reformulate their theory of liability (and, thus,
dramatically shift the focus of their expert's opinion testimony)."
Id. at 283. We found that the substantive change in the opinion
being offered by an expert for the plaintiffs amounted to a failure
to meet the district court's deadline for "identification of
experts and the disclosure of their opinions." Id. We refused to
find an abuse of discretion when the trial court precluded that
expert from offering testimony because of the untimeliness of the
disclosure of his opinions. Id. at 284. We noted that "the
plaintiffs had flouted a clearly expressed discovery deadline
without any apparent justification and under circumstances redolent
of strategic behavior." Id.
Ramírez-González's effort to cast the events in this case
into the mold of Martínez-Serrano is unavailing. Although there may
be some merit to Ramírez-González's contention that Dr. Nathanson
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was to be the plaintiffs' principal witness on causation and the
standard of care, the record shows that Dr. Crawford was set to
testify on those issues as well. The pretrial order stated that Dr.
Crawford would "testify as an expert in neonatology regarding her
review of the pertinent records, the standards of care within her
field of expertise applicable to this case, the defendants'
departures from such standards, about [G.P.P.]'s condition as it
relates to her field of expertise, and the estimated cost of his
life care."4 Moreover, her report, which was provided to Ramírez-
González well in advance of the trial,5 dealt extensively with
G.P.P.'s treatment and concluded with a section entitled,
"Causation: Opinions." There is no support in the record for
Ramírez-González's claim that he would have been surprised and
unfairly prejudiced if Dr. Crawford had been allowed to testify on
the standard of care and causation.6 Moreover, it is noteworthy
4
Although this reference to neonatology, viewed in isolation,
might suggest that Dr. Crawford was only going to testify about the
care and development of G.P.P. after his birth, the actual
description of the scope of Dr. Crawford's testimony and the
substance of the section of her report entitled, "Causation:
Opinions," see infra n. 6, made it abundantly clear that her
proposed testimony would not be limited to the field of
neonatology.
5
The report was attached as an exhibit in support of the
plaintiffs' opposition to the defendant's motion for summary
judgment and added to the docket in March 2008, three months prior
to the trial. As such, it was served on defendant.
6
In the section of her report entitled "Causation: Opinions,"
Dr. Crawford wrote, among other things:
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that the district court does not mention a failure to disclose the
substance of Dr. Crawford's testimony in its opinion and order
limiting Dr. Crawford's testimony. It is clear that the district
court instead based its decision to limit Dr. Crawford's testimony
on its erroneous assessment of her credentials after hearing her
testify in the Daubert hearing.
Judgment vacated. Remanded for further proceedings
consistent with this opinion. Costs are awarded to the appellants.
So ordered.
Pitocin was used indiscriminately resulting in
uterine hyperstimulation and impaired
teroplacental perfusion which depleted his
fetal reserves. The abnormal labor pattern
for a multigravida was not appreciated. . . .
The records do not indicate any awareness
that [G.P.P.] was such a big baby and the
prenatal records were silent in terms of
fundal height. . . . Vacuum use was
inappropriate and traumatic adding further
insult to injury and resulted in a prolonged
(32 minute) bradycardia. The [c-section] was
delayed which contributed to the profound
acidosis and CNS insult that he sustained.
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