United States Court of Appeals
For the First Circuit
No. 08-1127
MILDRED MARTÍNEZ-SERRANO AND ELIZABETH MARTÍNEZ-SERRANO,
Plaintiffs, Appellants,
v.
QUALITY HEALTH SERVICES OF PUERTO RICO, INC.,
d/b/a HOSPITAL SAN CRISTÓBAL,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Lipez, Circuit Judges.
Ramón L. Walker-Merino, with whom Ricardo Ruiz Díaz and Ruiz
& Reyes Law Offices were on brief, for appellants.
Jorge Martínez-Luciano, with whom Emil Rodríguez-Escudero,
Law Offices of Pedro Ortiz Alvárez, PSC, José A. Miranda-Daleccio,
and Miranda Cárdenas & Córdova were on brief, for appellee.
June 8, 2009
SELYA, Circuit Judge. This is a medical malpractice
action, brought under diversity jurisdiction. See 28 U.S.C.
§ 1332(a)(1). At the close of the plaintiffs' case in chief, the
district court granted a defense motion for judgment as a matter of
law. See Fed. R. Civ. P. 50(a)(1). The plaintiffs appeal,
protesting the exclusion of certain expert testimony and the
granting of the climactic Rule 50 motion. Discerning no error, we
affirm.
I. FACTUAL BACKGROUND
Plaintiffs-appellants Mildred and Elizabeth Martínez-
Serrano are citizens and residents of states within the continental
United States. They are the surviving daughters of José Martínez-
Flores (Martínez), who died while undergoing treatment at Hospital
San Cristóbal (the Hospital), a facility owned and operated by
defendant-appellee Quality Health Services of Puerto Rico.
The events leading up to Martínez's demise are largely
(but not entirely) uncontroversial. On November 4, 2005, Martínez
repaired to the Hospital complaining that he had been vomiting
blood. An emergency room physician examined him and ordered
laboratory tests, an electrocardiogram, intravenous medications and
fluids, and a blood transfusion. The doctor formed a preliminary
diagnosis of gastrointestinal bleeding and ordered Martínez
admitted as a patient of his primary care physician, Dr. Orlando
Torres-Miranda (Dr. Torres). The admission order envisioned a
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consultation by Dr. Nelson Medina-Moreno (Dr. Medina), a
gastroenterologist.
At around 11:00 a.m. the following morning, Dr. Torres
visited the Hospital to examine his patient. Although Martínez
seemed worn-out, he was alert and oriented. Dr. Torres instructed
the Hospital's staff once more to contact Dr. Medina about the
desired consultation. He also ordered a complete blood count, to
be done after a second blood transfusion. Finally, he directed the
staff to notify him immediately when the results of the laboratory
tests were available.
Those results arrived at the Hospital the same day around
3:30 p.m. They indicated a variety of abnormalities. The nurses'
notes reflect several unsuccessful attempts to relay these results
to Dr. Torres. Although there is conflicting evidence on the
point, we take as true Dr. Torres's avowal that the results were
not conveyed to him during Martínez's lifetime.
As the hours went by, the patient's condition
deteriorated. By nightfall, Dr. Torres still had not received any
information about the laboratory tests. With Martínez's condition
worsening, the nursing staff called the case to the attention of a
resident physician. By then, the patient was in cardiorespiratory
arrest. Emergency resuscitation proved unsuccessful and Martínez
died shortly thereafter.
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II. TRAVEL OF THE CASE
In due season, the plaintiffs brought suit for Martínez's
wrongful death in Puerto Rico's federal district court. Their
second amended complaint (for present purposes, the operative
pleading) charged negligence on the part of Dr. Medina (who had
never examined the patient), Dr. Torres, and the Hospital. This
appeal is from a judgment entered in favor of the Hospital.
During the course of pretrial jousting, the plaintiffs
dropped their claims against Dr. Medina. Prior to the start of
trial, the district court excluded two clusters of expert
testimony, one proffered by the plaintiffs and the other by the
Hospital. We focus on the exclusion of testimony proffered by the
plaintiffs.
The facts are as follows (all dates are in 2007 unless
otherwise indicated). The district court entered a case-management
order (the CMO) on March 27. The CMO set the initial scheduling
conference for May 23 and decreed that, on or before that date, the
plaintiffs must identify any expert witnesses whom they planned to
call at the trial and deliver their reports to the defense. Each
such report was to include, among other things, "[a] complete
statement of all opinions to be expressed by the expert and the
basis for those opinions." The CMO warned that "[i]f the report of
the expert is not as described herein, the expert's testimony will
not be permitted on direct examination."
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The district court convened the initial scheduling
conference on May 23. A continuation of the scheduling conference
took place on July 9. By then, the plaintiffs had designated Dr.
Benito Colón as an expert witness and had furnished his report as
required by the CMO. The report attributed most of the blame for
Martínez's death to Dr. Torres. It did, however, ascribe
negligence to the Hospital for granting Dr. Torres admitting
privileges.
The lower court issued a supplementary case-management
order on July 13; that order listed Dr. Colón's report as part of
the plaintiffs' authorized documentary evidence. In the same
order, the court warned that no other expert reports would be
allowed, except upon written motion and for good cause shown.
At about this time, the plaintiffs reached a settlement
with Dr. Torres. That development left the Hospital, for all
practical purposes, as the sole remaining defendant.1 The Hospital
took Dr. Colón's deposition on August 16. The doctor deviated
dramatically from his report and testified extensively about
negligent acts and omissions by Hospital employees. That line of
reasoning was conspicuously absent from his original report.
A few weeks later, the plaintiffs submitted what they
euphemistically called a "final addendum" to Dr. Colón's report.
1
While the Hospital's insurer was also named as a defendant,
the insurer's presence does not affect our analysis.
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The addendum altered the theory of liability against the Hospital
from negligence in accrediting Dr. Torres (who had by this time
settled with the plaintiffs) to negligence in its handling of
Martínez's care.
The Hospital did not take kindly to Dr. Colón's
tergiversation. It asked the district court to preclude Dr. Colón
from testifying, arguing that this flip-flop effectively introduced
a new line of expert opinion into the case and, thus, transgressed
the terms of the CMO. In the alternative, the Hospital argued that
the newly proffered testimony should be excluded because it failed
to meet minimally acceptable standards of reliability. See Daubert
v. Merrell Dow Pharm., 509 U.S. 579, 593-94 (1993).
Although the plaintiffs objected strenuously, the
district court granted the Hospital's motion to preclude. Somewhat
cryptically, the court stated that Dr. Colón's testimony was
"deemed inadmissible as this expert has lost all credibility before
the Court."
The plaintiffs proceeded to trial without their expert
witness. They premised liability mainly on allegations that
Hospital personnel had failed to (i) contact Dr. Medina as ordered
by both the emergency room physician and Dr. Torres and (ii) notify
Dr. Torres in a timely fashion of the abnormal lab-test results.
Both Dr. Medina and Dr. Torres testified as fact witnesses about
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the failures of communication. The latter also testified about
Martínez's condition.
At the close of the plaintiffs' case in chief, the
Hospital moved for judgment as a matter of law. The district court
granted the motion. See Martínez Serrano v. Quality Health Servs.
of P.R., Inc., No. 06-1454, slip op. at 3 (D.P.R. Nov. 28, 2007)
(unpublished). This timely appeal ensued.
III. ANALYSIS
On appeal, the plaintiffs maintain that the district
court (i) abused its discretion in precluding Dr. Colón's expert
testimony and (ii) erred in taking the case from the jury. We
address these points separately.
A. Expert Testimony.
Before considering the plaintiffs' preclusion claim, we
must deal with a procedural argument: the Hospital asserts that
this court lacks jurisdiction to entertain this preclusion claim
because the plaintiffs failed to designate the exclusionary order
in their notice of appeal. This assertion lacks merit.
To be sure, a notice of appeal ordinarily must designate
the orders or judgments to which the appeal is directed. See Fed.
R. App. P. 3(c)(1)(B). But this principle is not ironclad. One
recognized exception concerns notices of appeal that designate the
final judgment in a case as the appeal's object. The case law is
consentient that such a notice of appeal is deemed to encompass not
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only the final judgment but also all interlocutory orders that
merge into it. See John's Insul., Inc. v. L. Addison & Assocs.,
Inc., 156 F.3d 101, 105 (1st Cir. 1998). That is the situation
here; the preclusionary order challenged by the plaintiffs is of
the type and kind that merges into the final judgment. See, e.g.,
United States ex rel. Zembowski v. DeRobertis, 771 F.2d 1057, 1064-
65 (7th Cir. 1985); see also 16A Wright, Miller, Cooper & Struve,
Federal Practice & Procedure § 3949.4, at 100 n.32 (4th ed. 2008)
(collecting cases). Consequently, we have jurisdiction to resolve
this assignment of error.
This brings us to the substance of the plaintiffs' claim.
It is a bedrock principle that federal trial courts possess wide-
ranging authority to manage the conduct of litigation and, as a
necessary corollary of that authority, to sanction litigants who
fail to comply with court-imposed deadlines. See Tower Ventures,
Inc. v. City of Westfield, 296 F.3d 43, 45-46 (1st Cir. 2002). And
when a failure of compliance occurs, "the court may choose from a
broad universe of possible sanctions." Id. at 46.
The Civil Rules contain a number of provisions that are
designed to assist trial courts in handling the peculiar subset of
discovery problems associated with the selection, disclosure, and
use of expert witnesses. See, e.g., Fed. R. Civ. P. 16(b),
26(a)(2); see also id. 37(b)(2)(B). This framework permits
district courts, among other things, to set temporal deadlines for
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the identification of experts and the disclosure of their opinions.
See Fed. R. Civ. P. 26(a)(2)(C); Boston Gas Co. v. Century Indem.
Co., 529 F.3d 8, 18 (1st Cir. 2008).
Where, as here, a party aspires to present expert
testimony but does not adhere to the district court's temporal
benchmarks, the court has a range of options. One of those options
is preclusion — and if the court deems that option appropriate, we
review its determination solely for abuse of discretion. Macaulay
v. Anas, 321 F.3d 45, 51 (1st Cir. 2003).
This standard of review obtains both as to the finding
that a discovery violation occurred and as to the appropriateness
of the sanction selected. See Thibeault v. Square D Co., 960 F.2d
239, 243 (1st Cir. 1992). In the last analysis, then, a party
striving to overturn a trial court's exercise of discretion with
respect to such matters faces a steep, uphill climb. See Gagnon v.
Teledyne Princeton, Inc., 437 F.3d 188, 191 (1st Cir. 2006);
Macaulay, 321 F.3d at 51.
So it is here. The record reveals with conspicuous
clarity that the plaintiffs attempted to reformulate their theory
of liability (and, thus, dramatically shift the focus of their
expert's opinion testimony) once they settled with Dr. Torres.
That reformulation transpired after the time for filing expert
reports had passed. The new allegations of negligence were not
based on freshly discovered evidence, and the plaintiffs have not
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advanced any plausible justification for the belated emergence of
these allegations. The shift amounted to the propagation of a
brand-new theory, not merely a refinement of an existing theory.
The prejudice to the Hospital was palpable. Given those
circumstances, we think that preclusion was well within the ambit
of the district court's discretion.2 See, e.g., Macaulay, 321 F.3d
at 52.
In an effort to blunt the force of this reasoning, the
plaintiffs seize upon the district court's statement that the
author of the precluded testimony had "lost all credibility" in the
eyes of the court. Building on this foundation, they suggest that
this statement reveals a violation of the abecedarian tenet that a
judge presiding over a jury trial does not have the right to
exclude testimony merely because he finds it unpersuasive. See,
e.g., Blake v. Pellegrino, 329 F.3d 43, 47 (1st Cir. 2003). That
tenet has no bearing here.
Admittedly, the district court's rationale for preclusion
was not crisply expressed. But "a reviewing court sometimes may be
able to infer the district court's reasoning from the record as a
whole." Torres-Rivera v. O'Neill-Cancel, 524 F.3d 331, 337 (1st
2
We add, moreover, that prior to excluding the plaintiffs'
expert testimony, the court had excluded expert testimony proffered
out of time by the Hospital. The aphorism that what is sauce for
the goose is sauce for the gander comes readily to mind. See,
e.g., In Re D.C. Sullivan Co., 843 F.2d 596, 599 (1st Cir. 1988).
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Cir. 2008). The more obvious the reasons for a choice, the less
that needs to be explained. See United States v. Navedo-
Concepción, 450 F.3d 54, 57 (1st Cir. 2006).
In this instance, the Hospital presented two grounds for
preclusion: untimeliness and failure to cross the Daubert
threshold. Of these two grounds, untimeliness was the more obvious
and the more cogent ground. After all, the plaintiffs had flouted
a clearly expressed discovery deadline without any apparent
justification and under circumstances redolent of strategic
behavior.
Even though the district court's statement is ambiguous,
we think it is highly unlikely that the court bypassed this solid
ground sub silentio and went out of its way to base its ruling on
a ground not presented. Viewing the court's order in the full
context of the arguments contemporaneously made and the record as
a whole, we are confident that the court based its preclusionary
order on the discovery violation.
This rationale is especially compelling because what the
court said fits neatly with it. Dr. Colón never attempted to
explain his change in direction. Given the convenient timing of
that change, however, the district court may well have intended the
quoted language as a rejection of what it regarded as an effort by
the doctor to shape his testimony to fit the plaintiffs' new
priorities.
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That ends this aspect of the matter. We hold, without
serious question, that the order of preclusion constituted a
fitting sanction for the discovery violation. Consequently, there
was no abuse of the trial court's considerable discretion.
B. Judgment as a Matter of Law.
A trial court confronted with a motion for judgment as a
matter of law must scrutinize the evidence and the inferences
reasonably extractable therefrom in the light most hospitable to
the nonmovant.3 Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir.
1987).
In conducting that perscrutation, the court must refrain
from differential factfinding; that is, the court must not pass
upon the credibility of the witnesses, resolve evidentiary
conflicts, or engage in a comparative weighing of the proof. Id.
A motion for judgment as a matter of law may be granted only if the
evidence, viewed from this perspective, adumbrates a result as to
which reasonable minds could not differ. Veranda Beach Club Ltd.
P'ship v. W. Sur. Co., 936 F.2d 1364, 1383 (1st Cir. 1991); Hubbard
v. Faros Fisheries, Inc., 626 F.2d 196, 199 (1st Cir. 1980).
3
This standard obtains whether the motion is made at the
close of the plaintiff's case in chief or at the close of all the
evidence. Chaney v. City of Orlando, 483 F.3d 1221, 1227 (11th
Cir. 2007).
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When an appellant seeks to set aside a judgment entered
following the allowance of such a motion, the court of appeals is
constrained in precisely the same fashion as the district court.
Because the central question on appeal revolves around the
sufficiency of the evidence, appellate review is plenary. Salve
Regina Coll. v. Russell, 499 U.S. 225, 231-32 (1991); Jordan-Milton
Mach., Inc. v. F/V Teresa Marie, II, 978 F.2d 32, 34 (1st Cir.
1992).
It is important to recall that this is a diversity
action. Thus, the substantive law of the forum state controls.
See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). For this
purpose, Puerto Rico is treated as the functional equivalent of a
state. See, e.g., Rolón-Alvarado v. Mun'y of San Juan, 1 F.3d 74,
77 (1st Cir. 1993).
The rule of decision that applies here is fault-based:
Puerto Rico law provides in pertinent part 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). Within this rubric, three
elements coalesce to make up a prima facie case for medical
malpractice (a species of professional negligence). Specifically,
a plaintiff must establish the duty owed, the occurrence of an act
or omission constituting a breach of that duty, and a sufficient
causal nexus between the breach and some resultant harm. See Lama
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v. Borras, 16 F.3d 473, 478 (1st Cir. 1994); Rolón-Alvarado, 1 F.3d
at 77.
Puerto Rico holds health-care providers to a
commonwealth-wide standard of care. See Oliveros v. Abreu, 101
P.R. Dec. 209, 226-27, 1 P.R. Offic. 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." Rolón-Alvarado, 1 F.3d at
77-78. A plaintiff bent on establishing a breach of this duty of
care ordinarily must adduce expert testimony not only to delineate
the minimally acceptable standard but also to show a failure to
meet that standard. Id. at 78.
Against this backdrop, we turn to the particulars of the
case at hand. With Dr. Colón's testimony barred, the plaintiffs
were unable to present any expert opinion sufficient to establish
either the Hospital's duty of care or a breach of the duty owed.
In an effort to trivialize this shortcoming, the
plaintiffs draw a distinction between doctors and hospitals with
respect to the duty owed in medical malpractice cases: they posit
that the Puerto Rico Supreme Court's decision in Oliveros
established a duty of care that applies only to malpractice claims
against physicians and that, as to hospitals, the duty owed is that
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of a reasonably prudent person (the standard that typically applies
in negligence cases outside the realm of medical malpractice). The
evidence presented at trial, they assert, was sufficient, even
without expert opinion testimony, to show a breach of the latter
duty.
That distinction limned by the plaintiffs is of dubious
validity. See, e.g., Torres-Lazarini v. United States, 523 F.3d
69, 72 (1st Cir. 2008) (defining the duty owed under Puerto Rico
law in a malpractice case against a hospital in terms of "the
minimum standard of professional knowledge and skill required in
the relevant circumstances"); Marcano Rivera v. Turabo Med. Ctr.
P'ship, 415 F.3d 162, 167-68 (1st Cir. 2006) (same); Rolón-
Alvarado, 1 F.3d at 77-78 (same). In the end, however, we need not
decide whether there is any legitimacy to the claim of differing
duties. Assuming for argument's sake that the duty owed by a
hospital is as the plaintiffs say and that the evidence of breach
sufficed to reach the jury, the plaintiffs' appeal nevertheless
fails. We explain briefly.
As we have said, causation is an essential element of a
claim for medical malpractice under Puerto Rico law. It was the
plaintiffs' burden to furnish proof of causation. See Cortés-
Irizarry v. Corporación Insular de Seguros, 111 F.3d 184, 190 (1st
Cir. 1997) ("Notwithstanding proof of both duty and breach, a
plaintiff also must offer competent evidence of causation in a
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medical malpractice case."). To make out causation under Puerto
Rico law, a plaintiff must prove, by a fair preponderance of the
evidence, that the negligent act or omission was the factor that
most likely caused the harm. Lama, 16 F.3d at 478.
The evidence here does not pass that test. We have
recently ruled — and today reaffirm — that in a medical malpractice
case under Puerto Rico law "a factfinder normally cannot find
causation without the assistance of expert testimony." Rojas-
Ithier v. Sociedad Española de Auxilio Mutuo y Beneficiencia, 394
F.3d 40, 43 (1st Cir. 2005). This is so because medical
malpractice is a field in which the issues tend to be
scientifically driven and more nuanced than in most tort cases.4
See id.
Here, the plaintiffs failed to furnish expert opinion
testimony about what acts or omissions (if any) caused Martínez's
death. What is more, our review of the record reveals no other
evidence that might suffice to establish this essential element of
the plaintiffs' case.
4
Let us be perfectly clear. The absence of expert testimony
is not necessarily dispositive in all medical malpractice cases
brought under Puerto Rico law. See Rolón-Alvarado, 1 F.3d at 79
(recognizing a narrow exception "where common knowledge and
experience are all that is necessary to comprehend a defendant's
negligence"). The case at hand, however, does not fall within the
narrow band of possible exceptions to the general rule requiring
expert testimony. Martínez's condition was complicated, and lay
knowledge can tell us only so much about why he died.
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The plaintiffs demur. They offer three reasons why Dr.
Torres's trial testimony supplied the missing link. First, they
point to his testimony that the Hospital's staff never informed him
of certain test results5 and never arranged for the requested
consultation with Dr. Medina. Second, they point to Dr. Torres's
testimony that his current assessment of the cause of death is
different than that which he inscribed on the death certificate.
Third, they point to his testimony anent the treatment that he
would have ordered had he received the test results sooner.
Whether viewed singly or in combination, these three
pieces of evidence do not get the plaintiffs very far. Even with
these pieces of evidence, there is no sufficient proof of
causation.
Dr. Torres's testimony as to the lack of notice vis-à-vis
the test results and the failure to arrange for a
gastroenterological consult goes to the issue of breach, not to the
issue of causation. The existence of a jury question as to breach,
without more, is not enough to foreclose the entry of judgment as
a matter of law in a medical malpractice case. See id. at 44.
Similarly, the doctor's evolving views of the cause of
death do not forge the necessary casual nexus. Dr. Torres first
concluded that Martínez's death resulted from "coronary artery
5
That testimony is disputed but, for purposes of reviewing a
judgment as a matter of law, we assume the accuracy of Dr. Torres's
account.
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disease, diabetes mellitus, chronic renal insufficiency, and
hypertension." At trial, he opined that the cause of death was
"pneumonia by aspiration." This dichotomy, in and of itself, tells
us very little about whether negligence caused death; neither of
those opinions, without further explication by an expert, informs
the trier of fact in any meaningful way about causation in the tort
sense. And, given Martínez's preexisting conditions, determining
which of these opinions is correct would shed no light on whether
the patient's demise would have occurred regardless of what Hospital
staff may or may not have done.
Dr. Torres's testimony that had he received the test
results more celeritously he would have initiated a particular
treatment regime does not fill the void. This testimony limns what
treatment might have been administered but for the alleged
negligence; it does not speak to the different question of whether
that treatment regime, if promptly administered, would have yielded
a more salubrious outcome (that is, whether it would have saved
Martínez's life).
The short of it is that, as the district court determined,
the record contains no significantly probative evidence on the issue
of causation. See Martínez Serrano, slip op. at 3. Without such
an evidentiary predicate, the jury had no legally acceptable basis
for finding the Hospital liable for Martínez's death. It follows
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inexorably that there was no error in the allowance of the
Hospital's mid-trial motion for judgment as a matter of law.
IV. CONCLUSION
We need go no further. Martínez's death was tragic, but
there is no cognizable basis for holding the Hospital legally
responsible for it. Accordingly, we uphold both the challenged
preclusionary order and the lower court's decision to take the case
from the jury.
Affirmed.
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