UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 96-1894
RAFAELA CORT S-IRIZARRY,
Plaintiff, Appellant,
v.
CORPORACI N INSULAR DE SEGUROS, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Selya, Circuit Judge.
David Efron, with whom Kevin G. Little was on brief, for
appellant.
Elisa M. Figueroa B ez, with whom Law Offices of Sigrid
Lopez Gonzalez was on brief, for appellees.
April 16, 1997
SELYA, Circuit Judge. Plaintiff-appellant Rafaela
SELYA, Circuit Judge.
Cort s-Irizarry (Cort s), suing on behalf of her minor child,
Rafael Jos Mu iz Cort s (Jos ), challenges an order granting
summary judgment to Corporaci n Insular de Seguros (CIS) and its
insured, Juan Ram n Gonz lez Aristud (Dr. Gonz lez), in a medical
malpractice action. See Irizarry v. CIS, 928 F. Supp. 141, 147-
48 (D.P.R. 1996). We vacate the order and remand for trial.
I. BACKGROUND
I. BACKGROUND
Although the accepted summary judgment protocol calls
for us to cast the facts in the light most complimentary to the
plaintiff's position, consistent with record support, see, e.g.,
Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990), we
temper that protocol here to the extent that we set off, as point
and counterpoint, conflicting evidence where the clash helps to
illuminate pertinent legal issues. For simplicity's sake we omit
any further reference to CIS and treat its insured as if he were
the sole defendant.
Dr. Gonz lez, a specialist in obstetrics, provided
prenatal care to Cort s after she became pregnant with Jos . On
December 15, 1979, Cort s related to Dr. Gonz lez that her last
menstrual cycle prior to conception began on November 2 and
lasted only two days. The length of her immediately preceding
menses was three days, and her periods typically had lasted two
or three days during the year prior to her current pregnancy.
Based on this data, Dr. Gonz lez calculated Cort s' estimated
delivery date (EDD) to be August 9, 1980. He delivered Jos by
2
cesarean section on July 30, 1980. The newborn weighed eight
pounds, eight and three-quarter ounces (two pounds more than
Cort s' first child) and exhibited no fetal distress.
According to the defendant's computations, Cort s was
in her thirty-ninth week of pregnancy when the baby arrived.
This calculation forms the nub of the case. The plaintiff's
theory is that Dr. Gonz lez misfigured the baby's fetal age and,
consequently, allowed the pregnancy to continue beyond forty-two
weeks, thus bringing into play a risk factor known as "post-
datism" or "post-maturity." A post-dated fetus is at risk of
oxygen deprivation during its extended stay in the mother's womb,
and brain damage is a predictable result. While Jos , at birth,
displayed no detectable symptoms suggesting a post-dated
delivery, the circumstances of the delivery revealed some
indications of potential perinatal difficulties; for instance,
the cesarean section took twenty-one minutes (roughly twice as
long as the norm), and, on one view of the proof, a tracheal
catheter was used to intubate the newborn.1
Time resolved these mixed signals. Jos showed signs
of neurologic abnormality at three months and was diagnosed with
1Other contemporaneous indicators were inscrutable. On the
one hand, Jos had a relatively high Apgar score. An Apgar score
is comprised of five components: heart rate, respiratory effort,
muscle tone, reflex irritability, and color. It usually is
compiled by the anesthesiologist at one minute after the delivery
and again at the five-minute mark. A low score is generally
thought to have predictive value in determining brain damage. On
the other hand, testing at birth revealed a somewhat elevated
serum bilirubin level (which could indicate an incipient
metabolic problem).
3
impaired motor development and hearing loss at fourteen months.
His condition worsened as the years passed. As an adolescent, he
was diagnosed as severely brain damaged, epileptic, and
profoundly deaf. At that juncture, Cort s, then a citizen of
Florida, sued Dr. Gonz lez in Puerto Rico's federal district
court, see 28 U.S.C. 1332(a) (diversity jurisdiction), alleging
that the physician's negligence caused her son's infirmities.
Cort s' case rests primarily on the opinions of two
experts. An obstetrician, Dr. Bernard Nathanson, opined that a
competent obstetrician, rather than relying upon a reported two-
day menstrual period to calculate a gravid woman's EDD, would
have launched a more detailed gynecologic investigation. Had Dr.
Gonz lez done so, the witness stated, he would have discovered
that Cort s' actual EDD was July 9, 1980, and he would have
recognized that a substantial risk of post-datism arose when her
pregnancy extended past the EDD (a risk which he presumably could
have negated by performing the cesarean section earlier). In
reaching these conclusions, Dr. Nathanson stressed the unusual
brevity of the reported period (especially as contrasted with
Cort s' previous menses) and Dr. Gonz lez' failure to confirm the
EDD by performing various tests which the witness stated were
available in 1979-1980 (e.g., a B-scan ultrasound examination).
In Dr. Nathanson's opinion, the pregnancy was post-dated, and the
defendant's failure to realize it and take corrective action
violated the prevailing standard of care.
Dr. Nathanson also disputed Dr. Gonz lez' assertion
4
that he in fact performed a manual pelvic examination at Cort s'
initial appointment and subsequently measured her uterus
throughout her pregnancy to corroborate the EDD. Dr. Nathanson
saw no evidence that these steps had been taken. Moreover, Dr.
Gonz lez' office record did not mention either the periodic
uterine measurements or their results. Although some of Cort s'
prenatal charts apparently had been lost, Dr. Nathanson stated
that these data "are so vital that they should be in [Dr.
Gonz lez'] record in any case had he done them."
The plaintiff's second expert, Dr. Allan Hausknecht, a
neurologist, diagnosed Jos as suffering from Lennox Gasteault
Syndrome (LGS). This neurological condition is caused roughly
fifty percent of the time by perinatal brain damage (resulting
from a lack of sufficient oxygen to the fetal brain). Doctor
Hausknecht stated that, in his experience, this percentage
increases sharply when, as in this instance, no evidence of any
other known cause exists. Noting that the gradual development of
Jos 's condition was characteristic of a post-mature fetus, Dr.
Hausknecht rendered an opinion that Jos 's brain damage resulted
from the post-datism which Dr. Nathanson had identified. This
opinion was bolstered in some degree by Dr. Nathanson's statement
that, while some post-dated infants will show immediate signs of
placental senescence, such as meconium-stained amniotic fluid or
peeling of the skin (Jos had neither), many others will appear
asymptomatic at birth yet manifest the effects of post-datism at
a later time.
5
To be sure, the plaintiff's evidence was hotly
contested. The defendant claimed that he had figured the EDD
accurately and that many of the tests suggested by Dr. Nathanson
were unnecessary, or impracticable, or both. He also presented
experts who offered an alternative theory of causation:
intrauterine cytomegalovirus (CMV) infection, a rare condition
which occurs in 0.2 to 2.2 percent of all live births. The
results of blood tests performed on Jos at age fifteen revealed
previous or latent CMV infection, but did not indicate whether
the infection had been contracted in utero. This is a
significant omission because, while infants who suffer from CMV
may be asymptomatic at birth and thereafter develop mental
retardation or deafness, CMV can be transmitted in various ways
and affects most individuals during their lifetimes.
II. THE SUMMARY JUDGMENT STANDARD
II. THE SUMMARY JUDGMENT STANDARD
A court may grant summary judgment "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). We have expounded this standard and its particulars in a
symphony of cases, see, e.g., McCarthy v. Northwest Airlines,
Inc., 56 F.3d 313, 315 (1st Cir. 1995) (collecting cases), and we
refrain from rehearsing this jurisprudential chorus here. For
our purposes, it suffices briefly to describe the rule's
operation.
6
The objective of summary judgment "is to pierce the
boilerplate of the pleadings and assay the parties' proof in
order to determine whether trial is actually required." Wynne v.
Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992). To
defeat a motion for summary judgment, the nonmoving party must
demonstrate the existence of a trialworthy issue as to some
material fact. See Coyne v. Taber Partners I, 53 F.3d 454, 457
(1st Cir. 1995). A fact is "material" if it potentially could
affect the suit's outcome. See Garside, 895 F.2d at 48. An
issue concerning such a fact is "genuine" if a reasonable
factfinder, examining the evidence and drawing all reasonable
inferences helpful to the party resisting summary judgment, could
resolve the dispute in that party's favor. See National
Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.),
cert. denied, 115 S. Ct. 2247 (1995).
Exercising de novo review, see Coyne, 53 F.3d at 457,
we hold that the record in this case presents triable issues as
to whether Dr. Gonz lez violated his duty of care, and, if so,
whether his actions caused Jos 's injuries. Consequently, the
district court erred in granting the motion for brevis
disposition.
III. ANALYSIS
III. ANALYSIS
We first survey the junction where summary judgment
principles and the standards governing the admissibility of
expert scientific evidence intersect. We then evaluate the lower
court's ruling.
7
A.
A.
The defendant asserts on appeal that the entry of
judgment should be affirmed because the district court had the
power to exclude the plaintiff's expert evidence pursuant to
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), and that, without such evidence, the plaintiff has no
case. Cort s parries this thrust by contending that Daubert does
not apply at the summary judgment stage. The truth lies
somewhere in between.
The Daubert Court formulated a regime for use in
ascertaining the admissibility of expert scientific evidence
under Fed. R. Evid. 702.2 This regime contemplates that trial
judges will perform a gatekeeping function, determining "whether
the reasoning or methodology underlying [proffered expert]
testimony is scientifically valid and . . . whether that
reasoning or methodology properly can be applied to the facts in
issue." Daubert, 509 U.S. at 592-93; see United States v.
Sepulveda, 15 F.3d 1161, 1183 (1st Cir. 1993) (discussing this
function).
2The rule stipulates:
If scientific, technical, or other
specialized knowledge will assist the trier
of fact to understand the evidence or to
determine a fact in issue, a witness
qualified as an expert by knowledge, skill,
experience, training, or eduction, may
testify thereto in the form of an opinion or
otherwise.
Fed. R. Evid. 702.
8
The plaintiff posits that Daubert is strictly a time-
of-trial phenomenon. She is wrong. The Daubert regime can play
a role during the summary judgment phase of civil litigation. If
proffered expert testimony fails to cross Daubert's threshold for
admissibility, a district court may exclude that evidence from
consideration when passing upon a motion for summary judgment.
See Cavallo v. Star Enter., 100 F.3d 1150, 1159 (4th Cir. 1996),
petition for cert. filed, 65 U.S.L.W. 2399 (U.S. Mar. 19, 1997)
(No. 96-1493); Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 293,
297-99 (8th Cir. 1996), petition for cert. filed, 65 U.S.L.W.
3539 (U.S. Jan. 29, 1997) (No. 96-1212); Claar v. Burlington
N.R.R., 29 F.3d 499, 502-05 (9th Cir. 1994); Porter v. Whitehall
Lab., Inc., 9 F.3d 607, 612, 616-17 (7th Cir. 1993).
The fact that Daubert can be used in connection with
summary judgment motions does not mean that it should be used
profligately. A trial setting normally will provide the best
operating environment for the triage which Daubert demands. Voir
dire is an extremely helpful device in evaluating proffered
expert testimony, see Sepulveda, 15 F.3d at 1184 n.15, and this
device is not readily available in the course of summary judgment
proceedings. Moreover, given the complex factual inquiry
required by Daubert, courts will be hard-pressed in all but the
most clearcut cases to gauge the reliability of expert proof on a
truncated record. Because the summary judgment process does not
conform well to the discipline that Daubert imposes, the Daubert
regime should be employed only with great care and circumspection
9
at the summary judgment stage.
We conclude, therefore, that at the junction where
Daubert intersects with summary judgment practice, Daubert is
accessible, but courts must be cautious except when defects are
obvious on the face of a proffer not to exclude debatable
scientific evidence without affording the proponent of the
evidence adequate opportunity to defend its admissibility.3 See
Margaret A. Berger, Procedural Paradigms for Applying the Daubert
Test, 78 Minn. L. Rev. 1345, 1379-80, 1381 (1994).
Having rejected the plaintiff's broadcast contention
that Daubert can never be used at the summary judgment stage, we
turn to the defendant's case-specific argument that Daubert
necessitates the exclusion of the opinions advanced by the
plaintiff's experts. This asseveration suffers from a very basic
shortcoming: the defendant never asked the district court to
exclude this evidence from consideration, and the district court
made no effort to do so on its own initiative. If trial courts
should be slow to employ Daubert at the summary judgment stage,
appellate courts should be even more hesitant to head in that
3Though such an opportunity is most easily afforded at trial
or in a trial-like setting, courts have displayed considerable
ingenuity in devising ways in which an adequate record can be
developed so as to permit Daubert rulings to be made in
conjunction with motions for summary judgment. See, e.g., Brown
v. SEPTA (In re Paoli R.R. Yard PCB Litig.), 35 F.3d 717, 736,
739 (3d Cir. 1994) (discussing use of in limine hearings), cert.
denied, 115 S. Ct. 1253 (1995); Claar, 29 F.3d at 502 (discussing
district court's technique of ordering experts to submit serial
affidavits explaining the reasoning and methodology underlying
their conclusions). We do not in any way disparage such
practices; we merely warn that the game sometimes will not be
worth the candle.
10
direction where there has been no development of the issue below.
After all, the bifurcated inquiry into reliability and relevance
which Daubert requires is best performed by trial judges who,
unlike appellate judges, have a broad array of tools which can be
brought to bear on the evaluation of expert testimony.4 Hence,
we can envision few, if any, cases in which an appellate court
would venture to superimpose a Daubert ruling on a cold, poorly
developed record when neither the parties nor the nisi prius
court has had a meaningful opportunity to mull the question.
This case falls squarely into the maw of these general
principles. The defendant, notwithstanding the animadversions
that he spouts on appeal, never asked in the district court to
strike or otherwise defenestrate the statements of Drs. Nathanson
and/or Hausknecht. The district court's rescript neither cites
Daubert nor purposes to exclude the expert evidence submitted on
the plaintiff's behalf. And, moreover, the record as it stands
is wholly inadequate to permit a reasoned Daubert determination.
For these reasons, we decline the defendant's odd invitation that
we start from scratch and undertake a Daubert analysis in the
4It is for this reason, coupled with the special coign of
vantage which trial courts enjoy, that we have afforded district
judges broad discretion in determining whether particular
scientific testimony is or is not admissible at trial. See Hoult
v. Hoult, 57 F.3d 1, 5 (1st Cir. 1995); Sepulveda, 15 F.3d at
1183. In this vein, we note that the Supreme Court soon will
resolve a disagreement among the circuits as to the appropriate
standard for reviewing such decisions. See Joiner v. General
Elec. Co., 78 F.3d 524 (11th Cir. 1996), cert. granted, 65
U.S.L.W. 3619 (U.S. Mar. 17, 1997) (No. 96-188). That standard-
of-review question need not concern us today.
11
context of this appeal.5 This means, of course, that we must
consider the entire record, including the opinions of Drs.
Nathanson and Hausknecht, as we ponder the merits of the district
court's dispositive ruling.
B.
B.
In this diversity suit, the substantive law of Puerto
Rico controls. See Erie R.R. v. Tompkins, 304 U.S. 64, 78
(1938); Rolon-Alvarado v. Municipality of San Juan, 1 F.3d 74, 77
(1st Cir. 1993). The Puerto Rico Civil Code states that "[a]
person who by an act or omission causes damage to another through
fault or negligence shall be obliged to repair the damage so
done." P.R. Laws Ann. tit. 31, 5141 (1991). Under this
proviso, three elements comprise a prima facie case of medical
malpractice; a plaintiff must establish (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
5In all events, we note that the two grounds urged by the
defendant in support of his exclusionary request are
inappropriate. First, Dr. Gonz lez asserts that his expert
evidence is more persuasive than the plaintiff's. His insistence
that this circumstance warrants exclusion of the competing expert
evidence contradicts fundamental principles of summary judgment
practice. See, e.g., Greenburg v. Puerto Rico Maritime Shipping
Auth., 835 F.2d 932, 936 (1st Cir. 1987). Daubert does not
reverse these principles. See Daubert, 509 U.S. at 595-96; see
also Ambrosini v. Labarraque, 101 F.3d 129, 140-41 (D.C. Cir.
1996), petition for cert. filed, U.S.L.W. (U.S. Apr. 1,
1997) (No. 96-1552). Second, he claims that the testimony of the
plaintiff's witnesses, if allowed, would be confusing. The fact
that particular expert evidence might tend to confuse or mislead
a jury can constitute grounds for exclusion of the evidence at
trial, see Fed. R. Evid. 403, but it is not directly relevant to
a Daubert analysis. See Daubert, 509 U.S. at 595-96.
12
between the breach and the claimed harm. See Lama v. Borras, 16
F.3d 473, 478 (1st Cir. 1994); Rolon-Alvarado, 1 F.3d at 77. On
whole-record review, we conclude that the plaintiff produced
sufficient evidence to establish a genuine factual controversy as
to each element.
1. Duty and Breach. In this case, the elements of
1. Duty and Breach.
duty and breach are inextricably intertwined. Thus, we address
them in the ensemble.
Puerto Rico holds health care professionals to a
national standard of care. See Oliveros v. Abreu, 101 P.R. Dec.
209, 226-27, translated in 1 P.R. Sup. Ct. Off'l Trans. 293, 313
(1973). Accordingly, a health care provider has "a duty to use
the same degree of expertise as could reasonably be expected of a
typically competent practitioner in the identical specialty under
the same or similar circumstances, regardless of regional
variations in professional acumen or level of care." Rolon-
Alvarado, 1 F.3d at 77-78. Nevertheless, because Puerto Rico law
presumes that physicians exercise reasonable care, a plaintiff
bent on establishing a breach of a physician's duty of care
ordinarily must adduce expert testimony to limn the minimum
acceptable standard and confirm the defendant doctor's failure to
meet it. See id. at 78.
Cort s' proffer is sufficient to this end. Dr.
Nathanson, a specialist in the same field as Dr. Gonz lez,
clearly delineated the standard of care and identified what he
believed to be Dr. Gonz lez' departures from it. He stated
13
categorically that an "average gynecologist" would not rely on a
reported two-day menstrual period unusually short even if
relatively common to that particular individual and that the
failure to perform corroborating tests then available violated
"the prevailing medical standard." For purposes of summary
judgment, affiants and witnesses need not be precise to the point
of pedantry. Thus, we treat Dr. Nathanson's references to the
"average gynecologist" and to "the prevailing medical standard"
as meaning the national standard of care. Cf. Lama, 16 F.3d at
479 n.7.
The district court advanced three principal grounds in
support of its conclusion that these issues duty and breach
could be resolved against the plaintiff at the summary judgment
stage, notwithstanding Dr. Nathanson's opinion evidence. All of
these grounds lack persuasive force.
First, the court observed that Cort s' menstrual
periods had lasted "an average of two to three days," and,
accordingly, "a two-day period was not abnormal or unusually
short for her." Irizarry, 928 F. Supp. at 146. But Dr.
Nathanson's testimony supported the opposite conclusion; thus,
whether the menses was abnormal and whether it triggered a duty
to inquire further became questions of fact not properly resolved
on summary judgment. See, e.g., Greenburg v. Puerto Rico
Maritime Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987).
Second, the court determined that, because Dr. Gonz lez
measured the uterus periodically throughout the pregnancy,
14
yielding results consistent with the EDD on which he relied, he
had no reason to suspect an earlier date of conception or to
order any additional tests. See Irizarry, 928 F. Supp. at 146.
While Dr. Gonz lez so testified, the court erred in treating that
testimony as conclusive. When Dr. Gonz lez' and Dr. Nathanson's
assertions are juxtaposed, the net result is a factual issue as
to whether the defendant made the measurements, and, if so,
whether this procedure satisfied the applicable standard of care.
Third, the court damned Dr. Nathanson's opinion with
the faintest of praise, characterizing it as nothing more than
one doctor's assertion that he would have acted differently in
identical circumstances than did another, and, consequently,
denying it effect in the summary judgment calculus. See id. at
147. We accept the court's premise that a mere disagreement in
medical judgment, without more, does not prove duty or breach in
a medical malpractice case brought under Puerto Rico law. See
Rolon-Alvarado, 1 F.3d at 78. But we reject the court's
conclusion; Dr. Nathanson's declarations, read in context, amount
to a satisfactory statement of the standard of care and the
defendant's deviation from it which, if credited by a jury, could
support a finding for the plaintiff on these elements of her
cause of action. And in the absence of a Daubert determination
excluding the Nathanson evidence as scientifically untenable, the
trial court was not at liberty on summary judgment to ignore that
evidence merely because it deemed other evidence more credible.
2. Causation. Notwithstanding proof of both duty and
2. Causation.
15
breach, a plaintiff also must offer competent evidence of
causation in a medical malpractice case. See Rolon-Alvarado, 1
F.3d at 77. The lower court found the plaintiff's submissions on
this element wanting. See Irizarry, 928 F. Supp. at 147. We
demur.
A medical malpractice plaintiff can and often does
establish causation through expert testimony. See Lama, 16 F.3d
at 478. Cort s took that route. Dr. Nathanson offered an
opinion to a reasonable degree of medical certainty that Cort s'
EDD was actually July 9, not August 9, and that this one-month
discrepancy had dire consequences. If accepted, this testimony
meant that Dr. Gonz lez did not perform the cesarean section
until the forty-third week of a post-dated pregnancy.
Relatedly, Dr. Hausknecht diagnosed Jos as suffering
from LGS, which, in the absence of any genetic or other known
explanation, is generally thought to be caused by perinatal brain
damage. It is undisputed that the adverse effects of post-datism
include oxygen deprivation, and thus can lead to brain damage.
Finding no evidence of any hereditary etiology and observing a
pathology consistent with post-datism, Dr. Hausknecht opined that
Jos 's cerebral damage probably was caused by the post-datism
which Dr. Nathanson identified. Both physicians also noted
likely indications of complications at birth, and these findings
buttress the plaintiff's theory of causation.6 Drawing
6Dr. Nathanson dwelled on the unusual duration of the
cesarean section and the apparent use of a tracheal catheter to
resuscitate the infant at birth. Dr. Hausknecht noted that there
16
reasonable inferences from this evidence, a rational jury could
find that Dr. Gonz lez' negligent reliance upon a reported two-
day menstrual period and his eschewal of further (available)
tests caused a post-dated pregnancy, the effects of which
included perinatal brain damage which manifested itself in the
form of LGS.
Of course, the defendant's experts debunked the
plaintiff's proof and offered an alternative causal theory the
presence of a CMV infection which the district court found
"more compelling." Irizarry, 928 F. Supp. at 147. But such
comparisons are invidious at the summary judgment stage. Even at
trial, a plaintiff in a medical malpractice suit need not prove a
causal connection with mathematical accuracy nor eliminate all
other possible causes of damage. See Cruz Rodriguez v.
Corporaci n de Servicios del Centro M dico, 113 P.R. Dec. 719,
744, translated in 13 P.R. Sup. Ct. Off'l Trans. 931, 960-61
(1983). Legal rules of this sort acquire added significance on
summary judgment because Rule 56 "contemplates an abecedarian,
almost one dimensional, exercise geared to determining whether
the nonmovant's most favorable evidence and the most flattering
inferences which can reasonably be drawn therefrom are sufficient
to create any authentic question of material fact." Greenburg,
835 F.2d at 936.
In this case, the defendant's evidence on the issue of
had been an abnormal bilirubin level at birth and expressed a
belief that this might evince a metabolic problem damaging the
brain.
17
causation, as compelling as it might have seemed, did not warrant
the entry of summary judgment. The plaintiff articulated an
alternative theory of causation and backed it up with expert
testimony as to the causal nexuses between LGS and perinatal
damage, and between perinatal damage and post-datism. At the
same time, she cast doubt on the defendant's theory of causation,
establishing the low incidence of intrauterine CMV infection and
suggesting an alternate origin of any CMV detected in Jos 's
system (related to a history of sexual molestation at school,
thereby opening up the possibility that any CMV infection was
sexually transmitted). This evidence sufficed to create a
trialworthy issue vis- -vis the element of causation. See Coyne,
53 F.3d at 460 (explaining that "when the facts support plausible
but conflicting inferences on a pivotal issue in the case, the
judge may not choose between those inferences at the summary
judgment stage"); see also United States v. Kayne, 90 F.3d 7, 12
(1st Cir. 1996) (stating that disagreements among experts are
"properly the subject of searching cross-examination" at trial),
cert. denied, 117 S. Ct. 681 (1997).
III. CONCLUSION
III. CONCLUSION
We need go no further. Scrutinizing the entire record
in the light most congenial to the plaintiff, rational jurors
could find all the elements of medical malpractice. Though the
plaintiff's evidence may appear thin to some, it establishes
factual disagreements as to which reasonable minds may differ.
No more is exigible. See Greenburg, 835 F.2d at 936 (explaining
18
that the ground rules associated with summary judgment practice
"admit of no room for credibility determinations, no room for the
measured weighing of conflicting evidence such as the trial
process entails, no room for the judge to superimpose his own
ideas of probability and likelihood (no matter how reasonable
those ideas may be) upon the carapace of the cold record").
Right or wrong, the plaintiff is entitled to present her case to
a jury.
The order granting summary judgment is vacated and the
The order granting summary judgment is vacated and the
case is remanded for trial. Costs to appellant.
case is remanded for trial. Costs to appellant.
19