Gonzalez-Arroyo v. Doctors' Center Hospital Bayamon, Inc.

United States Court of Appeals
For the First Circuit

No. 21-1689

JAMILET GONZÁLEZ-ARROYO, in representation of her minor son,
ALG,

Plaintiff-Appellant,

v.

DOCTORS' CENTER HOSPITAL BAYAMÓN, INC.; DR. BENITO HERNÁNDEZ-
DIAZ; JANE DOE, CONJUGAL PARTNERSHIP HERNÁNDEZ-DOE,

Defendants-Appellees,

JOHN DOES 1,2, AND 3; A, B, AND C CORPORATIONS; UNKNOWN
INSURANCE COMPANIES A THROUGH H,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Raúl M. Arias-Marxuach, U.S. District Judge]

Before

Barron, Chief Judge,
Howard and Thompson, Circuit Judges.

David Efron, with whom Law Offices of David Efron, P.C. was
on brief, for appellant.
Roberto Ruiz Comas, with whom RC Legal & Litigation Services,
PSC was on brief, for appellee Doctors' Center Hospital Bayamón,
Inc.
Giovanni Picorelli Ayala for appellee Dr. Benito Hernández-
Diaz.
November 22, 2022
 THOMPSON, Circuit Judge. Alleging negligent conduct

during the birth of her son ALG, Jamilet González-Arroyo

("González") brought a medical malpractice suit on his behalf in

the District of Puerto Rico against Doctors' Center Hospital

Bayamón ("DCHB") and Dr. Benito Hernández-Diaz ("Hernández" and

all together, the "Hospital"). González claimed that the Hospital

failed to notice and treat ALG's oxygen-loss at birth, which caused

him serious cognitive injury -- he would later be diagnosed with

autism and cerebral palsy.

To connect the Hospital's alleged conduct to ALG's

injuries (what we call causation), González hired an expert to

review her medical files and submit a report with his opinions

(standard practice in these types of actions). Ultimately, this

dispute is over that report. Before the parties went to trial,

the district court, on the Hospital's motion, struck the expert's

report and testimony, reasoning that it was too speculative and

otherwise failed to conform to established rules for such reports.

Without it, the district court concluded González could not make

her case and granted the Hospital's summary judgment motion,

dismissing González's lawsuit with prejudice. Only then did

González try to supplement the report and fix its apparent

deficiencies, and with that she asked the district court to

reconsider its prior rulings. In the interim, González appealed

to us, so the district court decided it had lost jurisdiction over

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the case and denied the reconsideration motion. González says the

district court got it all wrong. We largely disagree and affirm

the district court's grant of the motion in limine and motion for

summary judgment. We also affirm the denial of the motion for

reconsideration, albeit for different reasons than the district

court, which we will get to.

BACKGROUND

We start with some relevant background of ALG's birth,

but with a caveat: the record before us contains no medical files

or exhibits, so we've done our best to weave together what happened

solely from the parties' filings below, two expert reports and one

expert deposition.

In October 2010, González, a couple months pregnant with

ALG, began to see Hernández for prenatal care, expecting to give

birth sometime in May 2011. González had been pregnant twice

before; one had ended in a miscarriage, and the other she delivered

by cesarean section (commonly called a C-section). Early in the

morning of April 26, 2011, González, who was then about thirty-

eight weeks along, arrived at DCHB experiencing contractions and

abdominal pain -- considered to be in early labor. Once admitted,

González received antibiotics, her regular epilepsy medicine and

pain medicine. At 10:45 AM, after ingesting the pain medication,

González experienced an isolated instance of elevated blood

pressure. Throughout the morning, ALG's heart rate was observed

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with a fetal heart rate monitor.1 At 11:45 AM, González was taken

to the operating room for a C-section, where she began spinal

anesthesia and by 12:05 PM the spinal was completed. During this

twenty-minute window, González experienced lowered blood pressure.

González's C-section began at 12:10 PM, ALG entered the world at

12:12 PM, and the whole procedure wrapped up at 12:25 PM.

According to González, at some point before ALG's birth, he

experienced a sudden loss of oxygen, resulting in brain injury.

After ALG's delivery, he seemed to be healthy as

reflected in normal APGAR scores of eight and nine (the test of a

newborn's physical health shortly after birth).2 But two days

after his birth, ALG was admitted to an intensive care unit for

suspected sepsis, jaundice, and other conditions, and spent a

little over a week there receiving treatment before heading home.

Then three years later, ALG was diagnosed with autism and cerebral

palsy. González asserts in her complaint that the Hospital caused

1 The parties refer to the monitor's output as "strips," so
we do the same. They also dispute what time the monitoring
stopped, which we address later.
2"APGAR is a quick test performed on a baby at 1 and 5 minutes
after birth. The 1-minute score determines how well the baby
tolerated the birthing process. The 5-minute score tells the
health care provider how well the baby is doing outside the
mother's womb." Apgar score, National Library of Medicine (last
visited Nov. 18, 2022),
http://medlineplus.gov/ency/article/003402.htm. The test
examines the baby's breathing effort, heart rate, muscle tone,
reflexes, and skin color. Id.

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these cognitive and developmental disabilities by failing to

timely perform her C-section, by failing to appropriately monitor

ALG's heart rate, and/or by failing to properly resuscitate ALG.

In response to these events, González, in January 2017,

filed a complaint lodging a single count of negligence against the

Hospital, with estimated damages at over $10 million. After a

lull in activity the parties and the court eventually worked out

a discovery schedule, all of which was to be complete by the end

of April 2018. As pertinent here, each side would exchange expert

reports, and both González and her expert, Dr. Barry Schifrin,

would sit for depositions.

In February 2018, the Hospital deposed Dr. Schifrin,

where counsel throughout challenged the conclusions in his report.

Notably, Dr. Schifrin had written his report in December 2016,

before González had even filed her complaint and accordingly, it

was prepared without the benefit of any formal discovery. His

report refers to prenatal, labor and delivery, and neonatal records

from DCHB, as well as ALG's follow-up medical chart (not from

DCHB), but notes that he did not have (and thus did not review)

the fetal monitoring strips, therefore writing that "the facts of

this case are significantly compromised." In the report, Dr.

Schifrin wrote that he "believe[s] that [ALG's oxygen-loss]

develops as a result of the frequent contractions, placental

[abruption] . . . and the [drop in blood pressure] associated with

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the spinal anesthesia." At the deposition, however, Dr. Schifrin

explained that the basis for his report's statement that ALG

experienced oxygen-loss at birth came from "[s]omebody put[ting]

[it] in this baby's subsequent medical record," not from DCHB's

birth records. Hospital counsel then presented Dr. Schifrin with

at least some of the fetal monitoring strips, those generated up

until about 10:40 AM or 90 minutes before González's C-section.3

After reviewing the strips, Dr. Schifrin testified that he could

not point to any evidence of placental abruption4 ("I don't know.

It's just a potential explanation."), and that the strips he

reviewed showed "there are no frequent contractions." Dr. Schifrin

further testified, again after reviewing the strips, "I am happy

to tell you the baby is not injured up to 10:40," so there were

"details" of his report he was "going to change." "Assuming [the

strips] were [consistent] to the time of the spinal," Dr. Schifrin

3 We say "some" because counsel showed Dr. Schifrin strips
that appear to end around 10:40 AM, while the Hospital's expert,
Dr. Francisco Gaudier, wrote that he reviewed strips ending at
11:27 AM. The record contains no explanation of this time
difference, but González's counsel asserts that the remaining
strips were withheld and/or spoliated. We'll deal with that
contention in a bit.
4 "Placental abruption occurs when the placenta partly or
completely separates from the inner wall of the uterus before
delivery. This can decrease or block the baby's supply of oxygen
and nutrients and cause heavy bleeding in the mother." Placental
abruption, Mayo Clinic (last visited Nov. 18, 2022),
http://www.mayoclinic.org/diseases-conditions/placental-
abruption/symptoms-causes/syc-20376458.

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said, "if there is any injury, it's related to the events of the

spinal," because González's blood pressure dropped during it, and

the timeline of the spinal suggested a delay from anesthetizing

González to getting the baby out. Prior to reviewing the strips

at the deposition, however, Dr. Schifrin hedged, "[I]f I say there

was a potential loss of oxygen with a drop in the maternal blood

pressure, I don't have a problem saying that. Did it cause the

injury? That's for somebody else to state." Then, after reviewing

the strips that were made available, Dr. Schifrin testified, "I

just can't tell you . . . the effect of the spinal" because that

segment of the monitoring strips was not available. Post-

deposition, Dr. Schifrin did not supplement or amend his original

report until after the district court had dismissed González's

complaint.

The Hospital brought in its own big gun expert, Dr.

Francisco Gaudier, who submitted his expert report in March 2018.

Indicating that he reviewed monitoring strips up until 11:27 AM

(shortly before González went to the OR), among other hospital

records, Dr. Gaudier concluded that there was no evidence to

suggest ALG suffered oxygen-loss prior to his birth, nor was there

evidence of frequent contractions or a significant drop in blood

pressure (hypotension) from the spinal anesthesia, and therefore

the Hospital did not cause ALG's injuries. González, it appears,

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opted not to depose Dr. Gaudier, nor did she challenge the district

court's consideration of his report.

From there, discovery concluded, and all signs pointed

to trial. In August 2019, the court scheduled a final pretrial

conference for late March and a trial date for April of 2020. But

then, a month before the pretrial conference, DCHB filed a motion

in limine, joined by Hernández, urging the court to exclude Dr.

Schifrin's report and testimony on several bases, including that

he failed to supplement his report, specify a national standard of

care, cite medical literature as Fed. R. Civ. P. 26 requires, and

provide conclusions based on objective and verifiable methodology

as Fed. R. Evid. 702 and Daubert (the seminal expert evidence case)

demand.

Over González's written objection, which did not include

a request for a hearing, the district court, based on the written

submissions, granted the Hospital's motion in limine. In its

opinion and order, the court first reasoned that the report was

"improperly founded and therefore inadmissible," as Dr. Schifrin

"ma[de] assumptions in the absence of . . . data," such as the

monitoring strips, notations regarding González's contractions

which would show their frequency, intensity or duration, and any

neuroradiological examinations of ALG (like an MRI). As to the

strips, the court pointed out that, "[e]ven though [Dr. Schifrin]

had not examined [them] at the time he rendered his expert report,"

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he had nonetheless concluded that the Hospital breached the

standard of care because attending personnel did not "'properly

understand the evolution of changes in the fetal heart rate

pattern,'" an opinion based on what he assumed the strips and other

medical documentation would show. As the court held, providing

opinions based on assumptions rather than on "sufficient facts or

data [or] the product of reliable principles" rendered the report

inadmissible. Continuing, the court highlighted two other

deficiencies with the report: it failed to cite any medical

literature, as Rule 26 requires, and it failed to specify whether

the standard of care mentioned in the report was, as Puerto Rico

law requires, the national standard of care.5 Given the

deficiencies it identified in the expert report, the district court

found that "Dr. Schifrin's expert report would not assist the trier

of fact with regards to identifying, let alone understanding the

applicable standard of care and any deviation from it by the

Defendants." Finally, the court found that Dr. Schifrin had a

duty to supplement his report after testifying at his deposition

that the strips showed no injury to ALG up until 90 minutes before

his birth.

In his report, Dr. Schifrin wrote, "The standard of care in
5

a patient with a previous cesarean section complaining of
contractions requires the application of a fetal monitor."

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 Meanwhile, the district court rescheduled trial from

April 12, 2020, down the road to November 2021 because of COVID-

19's pandemic sweep across Puerto Rico (as elsewhere). But in the

interim, DCHB, again joined by Hernández, filed a motion for

summary judgment in December 2020, based on their successful motion

in limine: without an expert, they urged, González could not prove

elements of her negligence claim, and therefore had no case. In

a written opposition to the Hospital's motion, González argued as

relevant to this appeal that even without Schifrin's testimony,

she could still make her case by relying on the Hospital's expert,

Dr. Gaudier, whom she had reserved the right to utilize at trial.

Agreeing with appellees that without Dr. Schifrin, González could

not establish causation as González pointed to nothing in Dr.

Gaudier's report that would support such a finding, the district

court granted the motion and in July 2021, entered judgment for

the Hospital, dismissing González's action in its entirety.

After judgment entered, González filed a motion for

reconsideration as to both the dismissal and exclusion of Dr.

Schifrin's testimony and report and in doing so attached a recently

amended expert report from Dr. Schifrin. While the motion for

reconsideration was pending, González filed her first notice of

appeal, prompting the district court to deny the motion, believing

it had lost jurisdiction over the case. González then re-filed

her notice of appeal and here we are.

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 DISCUSSION

González appeals the district court's grant of the

Hospital's motion in limine and for summary judgment, and denial

of her motion for reconsideration. The spoiler, though, is that

the bulk of González's problems flow from the exclusion of her

expert; without one, she cannot make out a medical malpractice

claim.6 So, we begin with González's protestations over the

district court's grant of appellees' motion in limine and move on

to her remaining objections to the district court's summary

judgment and reconsideration rulings.

Exclusion of Expert Testimony

González challenges the exclusion of Dr. Schifrin's

testimony and report.7 Accordingly, we review a "district court's

decision to admit or exclude expert testimony for abuse of

discretion." Milward v. Rust-Oleum Corp. (Milward II), 820 F.3d

6 In Puerto Rico, whose substantive law controls this
diversity suit, "to prevail on a medical malpractice claim, . . .
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." Pagés-Ramírez v.
Ramírez–González, 605 F.3d 109, 113 (1st Cir. 2010). To establish
both elements, "a trier of fact will generally need the assistance
of expert testimony." Id.
7A note about our appellate jurisdiction -- González's appeal
from the district court's final judgment "encompass[es] not only
[that] but also all interlocutory orders," like the order excluding
Dr. Schifrin's testimony, "that merge into it." López-Ramírez v.
Toledo-González, 32 F.4th 87, 93 n.4 (1st Cir. 2022) (quoting
Martínez-Serrano v. Quality Health Servs. of P.R., Inc., 568 F.3d
278, 283 (1st Cir. 2009)).

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469, 472 (1st Cir. 2016). Under that standard, we give "broad

deference to the determination made by the district court as to

the reliability and relevance of expert testimony." Beaudette v.

Louisville Ladder, Inc., 462 F.3d 22, 25 (1st Cir. 2006). And we

will reverse only if "the ruling at issue was predicated on an

incorrect legal standard or we reach a 'definite and firm

conviction that the court made a clear error of judgment.'" United

States v. Corey, 207 F.3d 84, 88 (1st Cir. 2000) (quoting United

States v. Shay, 57 F.3d 126, 132 (1st Cir. 1995)); see also

Schubert v. Nissan Motor Corp. in U.S.A., 148 F.3d 25, 30 (1st

Cir. 1998) ("In the context of the admission or exclusion of

opinion evidence, we have stated that we will uphold the district

court's ruling in this area unless it is manifestly erroneous.")

(internal quotation marks and citation omitted).

Reliability of Dr. Schifrin's Report

Before tackling González's arguments, a bit more

background on the admissibility of expert evidence would be

helpful. As we've previously noted, to provide admissible

testimony, an expert must render conclusions "'in a scientifically

sound and methodologically reliable fashion.'" Milward v. Acuity

Specialty Prods. Grp., Inc. (Milward I), 639 F.3d 11, 15 (1st Cir.

2011) (quoting Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling

Co., 161 F.3d 77, 85 (1st Cir. 1998)). Yes, a district court

should admit an expert "[s]o long as [their] scientific testimony

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rests upon 'good grounds,' based on what is known." Id. (quoting

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993)).

But neither Daubert nor Rule 702 permits expert opinions grounded

only in the unsupported assertions of the expert. See López-

Ramírez, 32 F.4th at 94 (quoting Gen. Elec. Co. v. Joiner, 522

U.S. 136, 146 (1997)). If that's the case, a "'court may conclude

that there is simply too great an analytical gap between the data

and the opinion proffered,'" provided "that gap is not 'of the

district court's making.'" Id. (first quoting Gen. Elec. Co., 522

U.S. at 146, then quoting Milward I, 639 F.3d at 22).

The district court excluded Dr. Schifrin's testimony, in

part, because it found that Dr. Schifrin based his conclusions on

assumptions about the fetal monitoring strips and other medical

records without having reviewed these records beforehand. And

when confronted with all but the last 90 minutes of these unseen

documents during his deposition, Dr. Schifrin not only conceded

the records up until then demonstrated no fetal stress, but he

also went on to simply hypothesize an alternative theory of injury

from the spinal anesthesia without identifying the basis for such

an opinion. In other words, Dr. Schifrin's failure to point to

and consider material medical records before offering a scientific

opinion produced, from the district court's perspective, a

significant analytical gap in the report. In response to the

district court's ruling, González lobs a few counterarguments.

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But each misses the mark, and none attacks the district court's

central point that Dr. Schifrin failed to connect his opinions to

sufficient, reliable data. But we'll take on the incoming.

As a threshold matter, González argues that the district

court should have held a Daubert hearing -- we gather sua sponte

-- on the admissibility of Dr. Schifrin's testimony before

excluding it on the motion in limine papers. Yet González cites

no authority for the proposition that a court abuses its discretion

by declining to hold a hearing, and even concedes (rightly) that

"there is no particular procedure that [the court] is required to

follow," unless the motion raises a novel legal issue. See United

States v. Phillipos, 849 F.3d 464, 471 (1st Cir. 2017) (district

court not required to hold Daubert hearing to make reliability

determination of proffered expert); United States v. Pena, 586

F.3d 105, 111 n.4 (1st Cir. 2009) (no abuse of discretion when

district court excluded expert without a hearing if no novel issue

is raised). Indeed, we have imposed no such requirement that the

district court hold a hearing, and González has not developed any

argument that the motion in limine raised a novel or even

particularly complicated issue for the district court to consider.

Next, González defends Dr. Schifrin's report itself from

the district court's scorn. She contends that, despite not having

reviewed the fetal monitoring strips, Dr. Schifrin's causation

analysis "complies completely" with Daubert and Rule 702 -- that

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is, it should not have been excluded as unreliable. Why? González

insists Dr. Schifrin's report was admissible because it opined on

a cause of injury to ALG and "the only thing [he] could not

specifically indicate is the precise timing of the injury." She

blames the Hospital for not producing the fetal monitoring strips

for Dr. Schifrin's review, accusing them, in passing fashion, of

withholding or spoliating a key portion of the strips, specifically

the last 90 minutes. Then, she claims that Dr. Schifrin's report

nevertheless complies with Daubert and Rule 702 because he employs

an inherently reliable methodology -- a so-called differential

diagnosis -- to formulate his scientific opinion.

Let's talk about González's claim of spoliation. To

demonstrate the same, González would need to show that the strips

had been "destroyed or not preserved." Gomez v. Stop & Shop

Supermarket Co., 670 F.3d 395, 399 (1st Cir. 2012). Although

González does throw around the word "spoliation" in her brief, she

makes no real argument in support of such an assertion, nor does

she point to any evidence in the record that would make such a

showing. Thus, we deem the argument waived. See Vargas-Colón v.

Fundación Damas, Inc., 864 F.3d 14, 24 (1st Cir. 2017) (quoting

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (Arguments

raised in a "perfunctory manner . . . are deemed waived.")).

Moving to the withholding accusation regarding the fetal

monitoring strips, González has similarly failed to explain in her

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briefs how this supposedly happened. See id. Even if we were

willing to overlook this waiver -- and we are not -- her argument

would still fail. Taking our own walk through the record, we

conclude there is nothing in it to save her withholding claim.

Here's what we find. Like we earlier mentioned, Dr. Schifrin wrote

his original report in December 2016 before González filed suit,

meaning at that juncture, there was no formal discovery to be had

and therefore no chance for DCHB to withhold anything. Then, Dr.

Schifrin was deposed about fourteen months after he wrote his

report, while discovery was ongoing. The week prior, DCHB sent a

Dropbox link with documents they planned to use at the deposition

to counsel for González. Counsel for González conceded at oral

argument that the link contained at least some of the strips but

claimed that neither he nor Dr. Schifrin had time to review them

beforehand.8 Once at the deposition, Dr. Schifrin confirmed that

he had yet to receive or review the strips until opposing counsel

presented them. Only then did Dr. Schifrin review the strips, but

he was only presented with a portion of them, up until 10:40 AM.

Counsel for González did not make an on-the-record request for the

8 Counsel asserted that the Hospital sent the link to his
office (not him) on a Friday afternoon, right before he spent the
weekend traveling to defend Dr. Schifrin's deposition the
following Monday morning, so there was no chance for him or Dr.
Schifrin to review it beforehand. Counsel misspoke -- the e-mail
transmitting the link was sent to a "davidefron" on the Wednesday
morning before he began his travels.

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remaining strips, nor does González point us to any evidence in

the record, nor have we found any, that she ever formally requested

production of the strips or that there was a discovery dispute

over them, before or after Dr. Schifrin's deposition.9 That's all

we have. DCHB may very well have withheld the strips, but nothing

in the record or the trial court docket explains what happened.

So that's that.

Notwithstanding any concerns about spoliation or

withholding (which, we add, amount mostly to red herrings), the

district court never identified the timing of the injury as an

issue impinging upon the reliability of Dr. Schifrin's report or

methodology; instead, the court found the report unreliable

because it made conclusions about what certain material evidence

must have shown without Dr. Schifrin ever having looked at it

before issuing his report. More on that in a bit.

We turn next to González's contention that Dr.

Schifrin's methodology was fundamentally reliable. This is so,

González says, because in forming his opinion Dr. Schifrin utilized

a methodology described as a "differential diagnosis,"10 which she

9 At oral argument, DCHB's counsel stated that González only
made one request for medical records, all prior to filing her
complaint, but never made a formal discovery request for medical
records (including the strips) after litigation commenced.
González's counsel declined to rebut that description of events.
10A differential diagnosis is when a provider puts together
a list of conditions with similar symptoms, then conducts
additional tests that might rule out some of these conditions and

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notes "has been the hallmark of the medical profession for

generations of doctors," and in this case, "is scientifically

reliable [as] . . . to the relationship of the fetal heart rate

pattern and oxygenation." Problem is, Dr. Schifrin's report or

testimony never explains the term differential diagnosis or how he

applied it, nor does González discuss it below in more than a

passing line or explain it in her briefing to us. (Probably for

that reason, the district court chose not to explicitly address

it.) On that basis alone, we have affirmed the district court's

exclusion in a similar instance. See López-Ramírez, 32 F.4th at

96 (no abuse of discretion where district court excluded expert

testimony as unreliable and plaintiff failed to argue that

reliability conclusions were erroneous) (citing Zannino, 895 F.2d

at 17).

Moreover, our case law explicitly rejects the inherent

reliability of a differential diagnosis. See Milward II, 820 F.3d

at 476. While a "differential diagnosis can be a reliable method

of medical diagnosis," the expert proffering it "still must show

that the steps taken as part of that analysis — the 'ruling out'

and the 'ruling in' of causes — were accomplished utilizing

lead to a final diagnosis. Differential Diagnosis, Cleveland
Clinic (last visited Nov. 18, 2022),
https://my.clevelandclinic.org/health/diagnostics/22327-
differential-diagnosis; see also Milward II, 820 F.3d at 472
(describing differential diagnosis as "essentially a process of
elimination").

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scientifically valid methods." Id. (cleaned up and emphasis

added).

Here, the district court took issue with the reliability

of Dr. Schifrin's analysis on the whole because (and not to be

redundant) he made assumptions about causation and injury without

knowing if the evidence would support them and never modified his

opinion when he learned he assumed wrongly. The court stressed

how Dr. Schifrin "repeatedly states" he lacked the fetal monitoring

strips altogether and any notes about the frequency and duration

of González's contractions.

And with respect to the data that was available to Dr.

Schifrin, González never explains, here or below, why the data he

did review, when viewed through a differential diagnosis lens,

would be sufficient to form a reliable opinion. Nor does González

explain, by pointing to any record evidence or any challenge to

the court's reasoning, how the district court abused its discretion

in calling out Dr. Schifrin's methodological shortcomings. See

id. (concluding that district court did not abuse its discretion

in excluding differential diagnosis opinion where plaintiffs

failed to show any reliable method for ruling in potential cause).

Rather than giving us some analysis, what González hands us instead

are several pages of unhelpful quotes from a sampling of our prior

expert opinion cases without explaining how anything in those

opinions helps her out.

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 All said, we conclude that the district court did not

abuse its discretion in excluding Dr. Schifrin's testimony as

unreliable and affirm the district court's decision to grant the

motion in limine on reliability grounds.11

Summary Judgment

Next, we deal with González's contention that,

regardless of the district court's exclusion of Dr. Schifrin's

testimony, the court still erred in granting summary judgment to

the Hospital. Our review is de novo. Garcia-Garcia v. Costco

Wholesale Corp., 878 F.3d 411, 417 (1st Cir. 2017). "To defeat a

motion for summary judgment, the nonmoving party must demonstrate

the existence of a trialworthy issue as to some material fact,"

that is, a fact that could "affect the suit's outcome." López-

Ramírez, 32 F.4th at 97 (quoting Cortés-Irizarry v. Corporación

Insular De Seguros, 111 F.3d 184, 187 (1st Cir. 1997)). While we

take the record in the light most favorable to González, she cannot

"rely on an absence of competent evidence, but must affirmatively

point to specific facts that demonstrate the existence of an

11 Despite her half-hearted arguments that the district
court's reliability analysis was wrong, González spills the most
ink to argue the district court erred in excluding the report for
violating Rule 26, largely that exclusion was "too severe" a
sanction. We have considered her arguments, but we need not
address them any further. See López-Ramírez, 32 F.4th at 94 n.5
(declining to consider argument that exclusion under Rule 26 was
"too severe of a sanction" when Rule 702 and Daubert provided
independent basis for exclusion).

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authentic dispute." Feliciano-Muñoz v. Rebarber-Ocasio, 970 F.3d

53, 62 (1st Cir. 2020) (quoting McCarthy v. Nw. Airlines, Inc., 56

F.3d 313, 315 (1st Cir. 1995)); see also Garcia-Garcia, 878 F.3d

at 417.

As we explained, and as González does not dispute, given

the nature of her claim she needs an expert to establish elements

of her negligence cause of action (i.e., causation). See Martínez-

Serrano, 568 F.3d at 286. But since we affirm the exclusion of

Dr. Schifrin's testimony, González can't rely on any of it to

withstand the summary judgment sickle. See Garside v. Osco Drug,

Inc., 895 F.2d 46, 50 (1st Cir. 1990) (explaining that inadmissible

expert evidence can't be used to defeat summary judgment). So,

without Dr. Schifrin, González is left arguing only that her case

survives summary judgment because she could make it at trial

relying on the Hospital's expert, Dr. Gaudier, and other unnamed

"opposing witnesses" to prove causation. González appears to argue

that the mere existence of an admissible expert is enough to

surpass the summary judgment blade. Unfortunately for González,

that's not how it works -- González does not, as she must, point

to any specific finding in Dr. Gaudier's report to support her

claim, or any other admissible evidence to boot.12 See Feliciano-

Muñoz, 970 F.3d at 62.

12 Our own dive into Dr. Gaudier's report confirms that
conclusion. In fact, it would wreck González's case. As to the

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 Thus, we affirm the district court's grant of summary

judgment.

Motion for Reconsideration

Last, we take on González's challenge to the district

court's order denying her motion for reconsideration (brought as

a Rule 59(e) motion). She contends that the court wrongly

concluded it had lost jurisdiction over the case (and thus, her

motion too) when she filed her first notice of appeal. She insists

that the court should have instead considered the motion, in part

because it included Dr. Schifrin's newly amended expert report.

Bear with us for a brief play-by-play. González filed

a motion for reconsideration days after the district court entered

judgment. With it, she attached for the first time an amended

expert report from Dr. Schifrin, urging the district court to take

it into account. While that motion was pending, González filed

her first notice of appeal of the judgment. The district court

subsequently denied the motion. While González offered a few bases

for reconsideration, which we'll address shortly, the court gave

one reason for denying it -- that after the notice of appeal, it

no longer had jurisdiction over the case. González then filed a

so-called "Amended Notice of Appeal," which states, like her first

monitoring strips, for example, Dr. Gaudier reviewed strips up
until 11:27 AM and concluded they were "reassuring" and there was
"absolutely no indication" for continuous monitoring of ALG.

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notice, that she "appeals . . . the Judgment" of the district

court.13

We begin with the district court's conclusion that it

lost jurisdiction over the case, and over the Rule 59(e) motion

too, when González filed her first notice of appeal. We review

the district court's denial of a Rule 59(e) motion for abuse of

discretion. Biltcliffe v. CitiMortgage, Inc., 772 F.3d 925, 930

(1st Cir. 2014). "A Rule 59(e) motion briefly suspends finality"

of a judgment so the district court can "fix any mistakes and

thereby perfect its judgment before a possible appeal." Banister

v. Davis, 140 S. Ct. 1698, 1708 (2020). In line with that

principle, even after González filed her notice of appeal, the

district court legally maintained jurisdiction then to resolve her

Rule 59(e) motion on the merits. And Federal Rule of Appellate

Procedure 4(a)(4)(B)(i) specifically provides district courts with

jurisdiction to rule on pending motions for reconsideration after

a litigant files her notice of appeal, explaining that the notice

"becomes effective" once the district court resolves that motion.

See also Fed. R. App. P. 4(a)(4)(A)(i)-(vi) (listing post-judgment

motions that fall under this Rule, including Rule 59(e) motions);

13The parties dispute whether we have jurisdiction to review
the motion for reconsideration. Because "the merits are easily
resolved in favor of the party who would benefit from a finding
that jurisdiction is wanting," we assume jurisdiction. Caribbean
Mgmt. Grp., Inc. v. Erikon LLC, 966 F.3d 35, 41-42 (1st Cir. 2020)
(citations omitted).

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Fontanillas-Lopez v. Morell Bauzá Cartagena & Dapena, LLC, 832

F.3d 50, 62 n.10 (1st Cir. 2016) (explaining same and that Rule

4(a)(4)(B)(i) is an exception to the principle that filing a notice

of appeal usually "divests" the district court of jurisdiction

over the case (quoting Griggs v. Provident Consumer Disc. Co., 459

U.S. 56, 58 (1982) (per curiam))). Thus, the district court

erroneously denied González's motion on jurisdictional grounds.

But our work does not end there. As we explain next, González has

made no showing that she is entitled to relief under Rule 59(e),

so we still affirm the denial of her motion, albeit for a different

reason than the district court. See Fisher v. Kadant, Inc., 589

F.3d 505, 512 (1st Cir. 2009) (affirming post-judgment ruling "on

an alternate ground that is evident in the record," "in lieu of

remanding," despite district court's legal error in disposing of

the motion).

To obtain Rule 59(e) relief, "the movant must demonstrate

either that newly discovered evidence (not previously available)

has come to light or that the rendering court committed a manifest

error of law." Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st

Cir. 2006). And "a party moving for Rule 59(e) relief may not

repeat arguments previously made during summary judgment, nor may

it present new arguments on a Rule 59(e) if such arguments could,

and should, have been made before judgment issued." Markel Am.

Ins. Co. v. Diaz-Santiago, 674 F.3d 21, 32 (1st Cir. 2012)

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(internal quotation marks and citation omitted). With this

exacting standard in mind, we need not linger. Here, González's

Rule 59(e) motion regurgitates many of the same arguments put forth

in her summary judgment briefing. She argues -- by citing to the

same cases as before -- that preclusion of her expert is too severe

a sanction under the circumstances and that even without her

expert, she could still prevail at trial by relying upon the

Hospital's expert. The district court rejected these contentions,

and so have we. González's only "new" argument centers on Dr.

Schifrin's amended expert report, which she argues explains the

Hospital's withholding of the monitoring strips and fills any gaps

in Dr. Schifrin's prior report. There is a significant problem

with that contention, however. González introduced the amended

report for the first time with her Rule 59(e) motion, and the

report was authored after the district court entered judgment and

dismissed her case, despite Dr. Schifrin's deposition occurring

several years prior, and the court's grant of the motion in limine

one year prior. Thus, Dr. Schifrin's amended report is not newly

discovered evidence, rather Dr. Schifrin could have filed it any

time after his 2018 deposition when he was shown the monitoring

strips, as he said he'd do during the deposition.

Because González has made no showing that she is entitled to

Rule 59(e) relief, we affirm the denial of her motion.

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 CONCLUSION

With that, we affirm the district court's grant of the

Hospital's motion in limine and motion for summary judgment, and

its denial of the motion for reconsideration. Each side shall

bear its own costs.

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