Rivera Rodriguez v. Hospital San Cristobal

United States Court of Appeals
For the First Circuit

No. 22-1776

LOURDES RIVERA RODRÍGUEZ; MARIA DE LOS ANGELES RAMOS RODRÍGUEZ;
and RAFAEL PACHECO RODRÍGUEZ,

Plaintiffs, Appellants,

v.

HOSPITAL SAN CRISTOBAL, INC.; QUALITY HEALTH SERVICES OF PUERTO
RICO, INC.; IRIS VÉLEZ GARCÍA; ZACARÍAS A. MATEO MINAYA; BERRIS
CASTILLO; and CONJUGAL PARTNERSHIP MATEO-CASTILLO,

Defendants, Appellees,

FUNDACIÓN SAN CRISTOBAL, INC.; JOHN DOE; CONJUGAL PARTNERSHIP
DOE-VÉLEZ; CORPORATIONS A, B, AND C; and UNKNOWN INSURANCE
COMPANY,

Defendants.

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

[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]

Before

Barron, Chief Judge,
Lipez and Montecalvo, Circuit Judges.

David Efron, with whom Law Offices of David Efron, P.C. was
on brief, for appellants.
Jose Hector Vivas, with whom Vivas & Vivas was on brief, for
appellees Hospital San Cristobal, Inc., and Quality Health
Services of Puerto Rico, Inc.
 José A. González Villamil, with whom Bufete González Villamil
C.S.P. was on brief, for appellees Zacarías A. Mateo Minaya, Berris
Castillo, and the Mateo-Castillo conjugal partnership.
Roberto Ruiz Comas and RC Legal & Litigation Services PSC for
appellee Iris Vélez García.

January 19, 2024
 BARRON, Chief Judge. Lourdes Rivera Rodríguez, Maria de

Los Angeles Ramos Rodríguez, and Rafael Pacheco Rodríguez

(collectively, "the plaintiffs") appeal from the grant of summary

judgment against them in this medical malpractice suit. They

brought the suit in the United States District Court for the

District of Puerto Rico after their mother, Ramona Rodríguez Rivera

("Rodríguez"), passed away while in the care of Hospital San

Cristobal ("HSC"). The suit seeks to recover under Puerto Rico

law for the allegedly negligent care that Rodríguez received at

HSC during and following an abdominal surgery performed by Dr.

Iris Vélez García ("Dr. Vélez") and Dr. Zacarías A. Mateo Minaya

("Dr. Mateo"). We affirm.

I.

A.

We begin with a recitation of the undisputed facts and

relevant procedural history.1

On February 29, 2016, Rodríguez visited HSC complaining

of pelvic pain. Rodríguez -- who was then seventy-one years old

and living with several chronic health conditions including

hypertension, type 2 diabetes, and asthma -- was examined by Dr.

1 Unless otherwise specified, all quotations in this section
are drawn from reports prepared by the parties' proffered expert
witnesses summarizing the medical records from Rodríguez's visits
to HSC.
- 1 -
Vélez, who had been her regular gynecologist since 2005. Dr. Vélez

recommended that Rodríguez undergo a bilateral oophorectomy via

laparotomy after a pelvic ultrasound revealed a "complex cystic

mass" near Rodríguez's right ovary.

Dr. Vélez performed Rodríguez's surgery on April 21,

2016, at HSC. During the surgery, Dr. Vélez discovered that

Rodríguez had a "frozen pelvis" with multiple "intraabdominal

adhesions," and so she requested a surgical consultation from Dr.

Mateo, another gynecologist on HSC's staff. Dr. Mateo assisted

Dr. Vélez with Rodríguez's surgery. On April 25, 2016, Rodríguez

was discharged from HSC after HSC staff observed "positive bowel

sounds" and Rodríguez reported "positive stool passage."

Four days later, on April 29, during a scheduled

postoperative appointment with Dr. Vélez at HSC, Rodríguez

reported that she had been experiencing "nausea, vomiting, and

abdominal/pelvic pain since April 26." Rodríguez was then admitted

to HSC's emergency department and was diagnosed with a presumed

perforated sigmoid colon. Later that day, Rodríguez underwent an

emergency exploratory laparotomy to address her presumed

perforated colon, during which Dr. Vélez, Dr. Mateo, and one Dr.

Ortiz Rosado2 performed a "partial colectomy with Hartman[n] pouch,

end colostomy[,] and subtotal hysterectomy." Rodríguez was

2 Dr. Ortiz Rosado is not a party to this suit.
- 2 -
subsequently admitted to HSC's intensive care unit ("ICU") in

critical condition. She was intubated on a respirator with a

nasogastric ("NG") tube, a colostomy bag, and a Foley catheter.

In HSC's ICU, Rodríguez received care from various

specialists, including Dr. Vélez and staff from HSC's "general

surgery, internal medicine, infectious disease, cardiology,

pulmonology, nephrology, hematology/oncology, and ENT"

departments. Two days after her admission to the ICU, on May 1,

Rodríguez was diagnosed with "bacteremia/sepsis." Then, on May 4,

Rodríguez tested positive for pseudomonas bacteria, at which point

HSC's "infection control program became involved" with her care.

HSC's epidemiology department recommended several specific

disinfection protocols to treat Rodríguez's pseudomonas infection,

but "[t]here is no documentation that these recommendations were

carried out at any time."

On May 6, HSC staff discovered that Rodríguez's stoma

had become necrotic. Rodríguez consequently underwent a third

surgical procedure consisting of "an exploratory laparotomy, ileal

resection, transverse colon loop colostomy, enterography, and

enteroclysis." Dr. Vélez and Dr. Ortiz Rosado performed this third

surgery. Rodríguez was then returned to the ICU, where she

continued to receive care from HSC staff.

On May 12, nursing and infectious-disease staff noted

"the presence of worms and/or maggots in the right nostril of
- 3 -
[Rodríguez], where the NG tube was located." A CT scan of

Rodríguez's sinuses was ordered, but there was otherwise "little

to no documentation of [any] consultations regarding the presence

of worms nor any analysis of the source of these worms."

On May 15, it was "documented that [Rodríguez's] fecal

collector [was] out of place." The following day, HSC staff noted

that the fecal collector "continue[d] to be displaced and that

there [was] abundant fecal material around the site [of the fecal

collector] as well as coming from" an "open wound" near the site.

On May 18, two types of bacteria were detected in

cultures of fluid taken from Rodríguez's abdomen. That same day,

HSC staff noted that Rodríguez was "no longer responding to verbal

or physical stimuli." By the following afternoon, HSC staff

determined that Rodríguez could not undergo a planned fourth

procedure "due to worsening of her condition," and they obtained

a "Do Not Resuscitate" order from Rodríguez's family. Rodríguez

died later that evening, at 8:48 P.M. on May 19, 2016.

An autopsy determined that Rodríguez's cause of death

was "peritonitis due to sigmoid colon perforation with associated

sepsis and septic shock. Complicating factors were congestive

heart failure, bilateral bronchopneumonia, and diabetic

ketoacidosis." The autopsy also showed "multiple pressure ulcers"

on Rodríguez's body.

- 4 -
 B.

The plaintiffs filed suit in the District Court on May

11, 2018. The operative complaint named as defendants Quality

Health Services of Puerto Rico, Inc., doing business as HSC

("Quality Health/HSC"); Dr. Vélez; Dr. Mateo; Dr. Mateo's wife,

Berris Castillo; the Mateo-Castillo conjugal partnership; and

several other individuals and corporations "whose identities

[were] unknown, [but who] by their negligent acts or omissions

caused or contributed to the damages claimed."3

The operative complaint asserted that "[HSC] and [its]

personnel, including [Dr. Vélez] and [Dr. Mateo], were practicing

below the standard of care in the treatment" that they provided to

Rodríguez, and that Rodríguez's "premature death . . . was caused

by the negligent management of her condition." The complaint

alleged several departures from "medical standards" and instances

of "professional negligence" in the defendants' care of Rodríguez

which "include[d], but [were] not limited to":

failure to recognize, appropriately asses[s]
and repair damage to any organs involved in or
near the operative field prior to closing the
abdomen; failure to recognize that Mrs.
Rodríguez’s sigmoid colon was damaged in this
circumstance and to perform an appropriate
repair procedure to assure sigmoid colon
integrity before abdominal closure; failure in
the proper management of hygiene by the

3 The plaintiffs also named as a defendant, but later
voluntarily dismissed, Fundación San Cristobal, Inc.
- 5 -
 hospital staff in the care of Mrs. Rodríguez;
failure in the documentation of the findings;
failure to manage the infectious processes
suffered by the patient; failure to manage the
patient's pre-existing condition of diabetes
which likely exacerbated her condition and
accelerated her demise; failure to timely
correct the displacement of the fecal
collector[;] and failure to manage the
patient's care by presenting multiple pressure
ulcers at autopsy due to the fact that
apparently the staff did not make changes in
the patient's position in the required time.

The plaintiffs claimed that these alleged deficiencies in the care

provided to Rodríguez made the defendants liable for negligence

under Puerto Rico law. See P.R. Laws tit. 31, §§ 5141, 5142. The

plaintiffs sought $3 million in damages for pain and suffering.

C.

To establish a prima facie case of negligence under

Puerto Rico law, "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 between

the breach and the claimed harm.” Cortéz-Irizarry v. Corporación

Insular de Seguros, 111 F.3d 184, 189 (1st Cir. 1997). In cases

of alleged medical malpractice, "Puerto Rico holds health care

professionals to a national standard of care." Id. at 190.

Under Puerto Rico law, "physicians are protected by a

presumption to the effect that they have exercised a reasonable

degree of care and the treatment provided was adequate." López
- 6 -
Delgado v. Cañizares, 163 P.R. Dec. 119 (2004) (certified

translation at Appellant's App. 247). Thus, "[a] physician's

negligence is not presumed from the fact that a patient suffered

damages or the treatment was unsuccessful." Id. Instead, to

establish "a breach of a physician's duty of care," a plaintiff

"ordinarily must adduce expert testimony to limn the minimum

acceptable standard and confirm the defendant doctor's failure to

meet it." Cortéz-Irizarry, 111 F.3d at 190.

In preparation for trial, the District Court ordered the

parties to submit a joint pretrial conference memorandum outlining

the contours of the case and the evidence that they would present

at trial. The plaintiffs indicated in the memorandum that they

would rely on the testimony of an expert witness, Dr. Jason S.

James ("Dr. James"), to establish the defendants' negligence. The

plaintiffs asserted that Dr. James would

testify as a medical expert in obstetrics,
gynecology[,] and general medicine about his
professional qualifications, his review of the
medical records in this case, the applicable
medical standards, his expert report and
deposition testimony, the reports of
defendants' experts, his professional opinion
as to the departures from the medical
standards by defendants in the treatment
provided to [Rodríguez] and their causal
relationship with [Rodríguez's] injuries and
premature death[,] and about any applicable
medical literature in support of his opinion.

The plaintiffs also "reserve[d] the right to use as their own any

expert witness announced by the defendants."
- 7 -
 Dr. Vélez and Dr. Mateo represented that they would each

call an expert witness of their own, and Quality Health/HSC

represented that it would call its own expert witness as well.

Dr. Vélez represented that her expert, Dr. Adrián Colón Laracuente,

would testify as to Dr. Vélez's treatment of Rodríguez "from the

gynecological and surgical standpoint . . . and her compliance

with the standard of care." Dr. Mateo represented that his expert,

gynecological specialist Dr. Alfredo S. Colón Martínez, would

testify "regarding his opinion that Dr. Mateo complied with all

the applicable medical standards while providing assistance during

the two surgical interventions to [Rodríguez] in which his

assistance was requested." Quality Health/HSC represented that

its expert, internist Dr. Anibelle Altieri Ramirez, would testify

as to "the standard of care applicable to this case, the

correctness of the treatment given to" Rodríguez by HSC staff,

"and that such treatment did not cause [the] plaintiff[s']

damages."

Following a pretrial conference, the District Court

referred the case to a magistrate judge for mediation. Mediation

was unsuccessful, in part because the defendants represented at

the settlement conference that they intended to file motions in

limine, the resolution of which had the potential to affect the

parties' settlement efforts.

- 8 -
 Two separate motions in limine were filed -- one by

Quality Health/HSC and the other by Dr. Mateo, Berris Castillo,

and the Mateo-Castillo conjugal partnership, joined by Dr. Vélez.

The motions sought to exclude the expert opinion testimony of the

plaintiffs' expert, Dr. James. Both motions argued that Dr.

James's testimony must be excluded because his expert report did

not comply with Federal Rule of Civil Procedure 26(a) and because,

even if the report did, the plaintiffs had not met their burden

under Federal Rule of Evidence 702 to show that his testimony was

admissible.

Federal Rule of Civil Procedure 26 requires parties in

civil cases to disclose their witnesses. Rule 26(a)(2)(B) requires

that the disclosure of any witness "retained or specially employed

to provide expert testimony" include a written report prepared and

signed by the expert witness which "must contain," among other

requirements, "a complete statement of all opinions the witness

will express and the basis and reasons for them." Rule 26(e)(2)

then requires that the proponent of an expert witness "supplement"

their initial disclosure to alert opposing parties to any

subsequent "additions or changes" to the content of the expert's

testimony. Federal Rule of Civil Procedure 37(c)(1), meanwhile,

provides that "[i]f a party fails to provide information or

identify a witness as required by Rule 26(a) or (e), the party is

not allowed to use that information or witness to supply evidence
- 9 -
on a motion, at a hearing, or at a trial, unless the failure was

substantially justified or is harmless."

Federal Rule of Evidence 702 governs the admissibility

of expert opinion testimony. It provides that a qualified expert

witness "may testify in the form of an opinion or otherwise" only

if the party seeking to introduce the witness's testimony

demonstrates by a preponderance of the evidence that (a) the

witness's "scientific, technical, or other specialized knowledge

will help the trier of fact to understand the evidence or to

determine a fact in issue"; (b) "the testimony is based on

sufficient facts or data"; (c) "the testimony is the product of

reliable principles and methods"; and (d) "the expert's opinion

reflects a reliable application of the principles and methods to

the facts of the case." Fed. R. Evid. 702.

Dr. James's expert report first summarized his

qualifications as a licensed physician and gynecological

specialist "well versed in the current standards of care applicable

to the practice of obstetrics and gynecology." Dr. James's report

stated that, "[i]n this matter, [his] opinions [were] based on

[certain enumerated] medical records and documents . . . and on

reliable and accepted scientific principles to a reasonable degree

of medical certainty." The report next stated that Dr. James had

reviewed the hospital records associated with Rodríguez's stays at

HSC between April 21 and April 25, 2016, and between April 29 and
- 10 -
May 19, 2016, as well as Dr. Vélez's office records pertaining to

her care of Rodríguez since 2005. The report then recited the

facts of Rodríguez's case and closed with Dr. James's "Comment" on

the case. In that "Comment" section, Dr. James wrote:

Based on the medical documents submitted, it
appears that [Rodríguez] expired from sepsis
and septic shock, a condition caused by the
perforated sigmoid colon that occurred in the
initial surgery on April 21, 2016 performed by
Dr. [Vélez] and Dr. [Mateo]. This patient
encountered several organisms throughout her
various organ systems: Klebsiella pneumonia,
Pseudomonas aeruginosa, and Enterococcus
faecalis in the blood, in the inguinal and
perianal secretions, in the urine, in the
colostomy, and in the throat, as noted in the
autopsy report. In addition, the most
surprising finding was the worms and/or
maggots that were noted to be present in the
nostril of the patient where the NG tube was
placed. There is little room for doubt
regarding the inappropriate nature and poor
hygiene which was utilized by the hospital
personnel in caring for [Rodríguez]. There is
poor documentation regarding this unusual
discovery and no evidence that appropriate
precautions were taken to prevent this
occurrence or to remedy the situation once it
was realized. There is no evidence of
appropriate disinfection of the hospital room,
equipment, hospital staff, and the patient
herself as recommended by infectious disease
and epidemiology. In addition, there appears
to be poor management of [Rodríguez's] medical
comorbidities, such as inadequate care for her
diabetes which likely exacerbated her
condition and accelerated her demise. It
appears that her fecal collector remained out
of place for more than 24 hours after
discovering it had become dislodged, allowing
fecal material to contaminate the stoma as
well as the open wound itself. Further, there
is evidence on autopsy of multiple pressure
- 11 -
 ulcers, which lends further evidence of the
substandard care that [Rodríguez] received
during her admission at [HSC].

In conclusion, it is my opinion -- based upon
a reasonable degree of medical
certainty -- that in the case discussed above
there were numerous deviations, failures, and
departures from acceptable standards of care
on the part of Dr. [Vélez], Dr. Mateo, as well
as on the part of [HSC] and its staff.

In their motions to exclude Dr. James's expert testimony

under Rule 26, the defendants argued that Dr. James's expert report

"fail[ed] to state the totality of his opinions in this case . . .

considering the scope of the testimony stated in the Pretrial

Report and which [the p]laintiffs apparently intend[ed] to present

at trial." The defendants further contended that the report "[did]

not state the applicable standards of care; [did] not specify

whether the standards of care are applicable on a national basis;

[did] not state how the applicable standards were specifically

breached"; did not explain how the defendants' "alleged negligence

caused and/or contributed to [Rodríguez's] condition and demise";

and was "conspicuously lacking in reference or citations to medical

literature." Accordingly, the defendants argued that Dr. James's

testimony had to be excluded under Rule 37(c).

Alternatively, the defendants argued that Dr. James's

testimony should be "excluded as speculative" under Federal Rule

of Evidence 702. They contended that was so because Dr. James's

expert report did not articulate either a "[s]cientifically
- 12 -
acceptable methodology" or "the bases and foundations that

underlie [his] expert opinion" and because nothing else in the

record enabled the plaintiffs to meet their burden to show that

his testimony was admissible under Rule 702.

The plaintiffs opposed the defendants' motions to

exclude Dr. James's testimony. The plaintiffs did not request,

however, that the District Court hold a hearing on the merits of

the motions at which Dr. James could testify. Nor did they request

leave to supplement Dr. James's expert report. Instead, the

plaintiffs argued that the entirety of Dr. James's proposed

testimony was admissible based on the expert report itself.

The District Court granted the defendants' motions to

exclude Dr. James's testimony. In so ruling, the District Court

relied entirely on Federal Rule of Evidence 702.

As to Dr. Vélez's and Dr. Mateo's motion under Rule 702

to exclude Dr. James's testimony, the District Court reasoned that

Dr. James's expert report "conclude[d] as a matter of fact that

Dr. Vélez and Dr. Mateo 'perforated' [Rodríguez's] sigmoid colon

during the first surgery on April 21, 2016" but provided "no

explanation" for that conclusion, instead "seemingly assum[ing]

that Dr. Vélez and Dr. Mateo did so because [Rodríguez] returned

to [HSC] complaining of pelvic pain some days after being

discharged" and was found to have had a perforated sigmoid colon

at that time. The District Court held that that assumption was
- 13 -
"not enough for a finding that Dr. Vélez and Dr. Mateo perforated

the colon." The District Court further observed that although Dr.

James "conclude[d that] Dr. Vélez and Dr. Mateo deviated from

acceptable standards of care," his report did not "state what those

standards are, nor where they come from[, nor] how Dr. Vélez and

Dr. Mateo deviated from them."

As to Quality Health/HSC's motion under Rule 702 to

exclude Dr. James's testimony, the District Court concluded that

Dr. James's opinions regarding the alleged negligence of HSC staff

"fare[d] no better" than his opinions regarding the alleged

negligence of Drs. Mateo and Vélez. And that was so, the District

Court explained, even though the report pointed to several alleged

departures from acceptable standards of care, because "nowhere in

[his] report [did] Dr. James identify the standard of care that

[HSC's] hospital staff should have adhered to; where that standard

comes from; and how the staff deviated from that standard."

At the same time that the District Court granted the

defendants' motions to exclude Dr. James's testimony under Rule

702, the District Court also granted the defendants' requested

leave to move for summary judgment within ten days. Dr. Mateo,

Berris Castillo, and the Mateo-Castillo conjugal partnership moved

for summary judgment seven days later, which motion Dr. Vélez

joined; Quality Health/HSC filed its own motion for summary

judgment two days later.
- 14 -
 The plaintiffs opposed both motions for summary

judgment, arguing that even if Dr. James's testimony were excluded,

they could rely on the testimony of the defendants' expert

witnesses to prove their case. In the alternative, the plaintiffs

asked the District Court to reconsider its ruling excluding Dr.

James's expert testimony, as they contended that the defendants

were not entitled to summary judgment if Dr. James's testimony

were not excluded.

The District Court denied the plaintiffs' request for

reconsideration, granted the defendants' motions for summary

judgment, dismissed the plaintiffs' claims with prejudice, and

entered judgment in favor of the defendants. The plaintiffs timely

appealed the District Court's entry of summary judgment.

II.

We first address the plaintiffs' challenge to the

District Court's grant of summary judgment to Dr. Vélez and Dr.

Mateo. "'To defeat a motion for summary judgment, the nonmoving

party must demonstrate the existence of a trialworthy issue as to

some material fact,' i.e., a fact that 'potentially could affect

the suit's outcome.'" López-Ramírez v. Toledo-González, 32 F.4th

87, 97 (1st Cir. 2022) (quoting Cortéz-Irizarry, 111 F.3d at 187).

To make this showing, a plaintiff "must affirmatively point to

specific facts that demonstrate the existence of an authentic

dispute." Feliciano-Muñoz v. Rebarber-Ocasio, 970 F.3d 53, 62
- 15 -
(1st Cir. 2020) (quoting McCarthy v. Nw. Airlines, Inc., 56 F.3d

313, 315 (1st Cir. 1995)). Our review of the summary judgment

ruling here is de novo. See Milward v. Rust-Oleum Corp. (Milward

II), 820 F.3d 469, 472-73 (1st Cir. 2016).

The District Court based its ruling that Drs. Mateo and

Vélez were entitled to summary judgment in part on its decision to

exclude Dr. James's expert testimony under Rule 702. The

plaintiffs now contend that this Rule 702 ruling was in error.

The plaintiffs do not suggest in advancing that contention,

however, that they can meet their burden to show that Dr. James's

testimony is admissible under Rule 702 based on anything extrinsic

to his expert report.4 The plaintiffs simply contend based on the

report itself that the District Court abused its discretion in

ruling that the plaintiffs had failed to meet that burden.5 The

plaintiffs then go on to contend, in the alternative, that we must

4 The plaintiffs assert as part of their challenge to the
District Court's Rule 702 ruling that the District Court's decision
to exclude Dr. James's report altogether after finding it deficient
was "too extreme of a sanction" -- but they conceded at oral
argument that they never requested leave to amend Dr. James's
expert report to cure its alleged deficiencies, and they point to
no authority suggesting that the District Court should have sua
sponte granted them leave to do so before excluding the testimony.
5 Although the plaintiffs argue that the District Court erred
by not holding a Daubert hearing on the admissibility of Dr.
James's testimony before granting the defendants' motions in
limine to exclude it, the contention fails for the same reasons we
rejected a similar contention in González-Arroyo v. Doctors'
Center Hospital Bayamón, Inc., 54 F.4th 7, 15 (1st Cir. 2022).
- 16 -
overturn the summary judgment ruling even if the District Court's

Rule 702 determination was not error. And that is so, they

contend, because of evidence in the record that is independent of

Dr. James's testimony. For the reasons set forth below, we

conclude that the plaintiffs' grounds for challenging the summary

judgment ruling have no merit.

A.

To assess the plaintiffs' challenge to the summary

judgment ruling at issue, it helps to focus first on the aspect of

that challenge that concerns the District Court's ruling excluding

Dr. James's testimony under Rule 702. To do so, we begin by

reviewing the requirements that Rule 702 sets forth before then

turning back to the District Court's Rule 702 ruling. With that

foundation in place, we then will be well-positioned to explain

why the plaintiffs' challenge to the grant of summary judgment to

Dr. Vélez and Dr. Mateo fails.

1.

Rule 702 provides in full that:

A witness who is qualified as an expert by
knowledge, skill, experience, training, or
education may testify in the form of an
opinion or otherwise if the proponent
demonstrates to the court that it is more
likely than not that:

(a) the expert's scientific, technical, or
other specialized knowledge will help the
trier of fact to understand the evidence or to
determine a fact in issue;
- 17 -
 (b) the testimony is based on sufficient facts
or data;

(c) the testimony is the product of reliable
principles and methods; and

(d) the expert’s opinion reflects a reliable
application of the principles and methods to
the facts of the case.6

Rule 702, in its present form, incorporates the

reasoning of the Supreme Court of the United States in Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See Fed.

R. Evid. 702 advisory committee's notes to 2000 amendment. There,

the Court construed an earlier version of the rule and explained

that it assigns a "gatekeeping role for the judge" to determine

whether "an expert's testimony both rests on a reliable foundation

and is relevant to the task at hand." Daubert, 509 U.S. at 597.

As a result, the present version of Rule 702 "affirms

the trial court's role as gatekeeper and provides some general

standards that the trial court must use to assess the reliability

and helpfulness of proffered expert testimony." Fed. R. Evid. 702

advisory committee's notes to 2000 amendment. To that end, the

present version of the rule establishes that expert testimony may

6 This is the current version of Rule 702, which went into
effect on December 1, 2023. See Fed. R. Evid. 702 advisory
committee's notes to 2023 amendment. However, the application of
the rule to this case is not affected by the 2023 changes. See
Fed. R. Evid. 702 (2011) (amended 2023).
- 18 -
be admitted into evidence only if it is "based on sufficient facts

or data," is "the product of reliable principles and methods," and

"reflects a reliable application of the principles and methods to

the facts of the case." Fed. R. Evid. 702.

Moreover, in applying Rule 702, we continue to draw on

Daubert's reasoning. See, e.g., Milward v. Acuity Specialty Prods.

Grp., Inc., (Milward I), 639 F.3d 11, 14 (1st Cir. 2011). Thus,

"[t]he focus" of the inquiry into the admissibility of expert

testimony under Rule 702 "must be solely on principles and

methodology, not on the conclusions that they generate." Daubert,

509 U.S. at 595. This distinction means that "[w]hen the factual

underpinning of an expert's opinion is weak, it is a matter

affecting the weight and credibility of the testimony" and thus "a

question to be resolved by the jury." Milward I, 639 F.3d at 22

(citation omitted).

At the same time, "nothing in either Daubert or the

Federal Rules of Evidence requires a district court to admit

opinion evidence that is connected to existing data only by the

ipse dixit of the expert." Gen. Elec. Co. v. Joiner, 522 U.S.

136, 146 (1997). Indeed, Daubert made clear that to be admissible

under Rule 702, an expert's opinion "must be supported by

appropriate validation" and rest on "more than subjective belief

or unsupported speculation." 509 U.S. at 590. Thus, in assessing

whether the expert opinion has the requisite validation for
- 19 -
purposes of Rule 702, a court may conclude that it does not

because, given the record at hand, "there is simply too great an

analytical gap between the data and the opinion proffered."

Joiner, 522 U.S. at 146.

We note that "[t]he party seeking to introduce the

evidence has the burden of establishing both its reliability and

its relevance," Milward II, 820 F.3d at 473 (citing Daubert, 509

U.S. at 593 n.10), and that we review a district court's ruling on

the admissibility of expert testimony under Rule 702 for abuse of

discretion, assessing "[p]redicate factual findings" for "clear

error" and "pure questions of law . . . de novo," id. at 472.

2.

In its ruling under Rule 702 concerning Dr. James's

testimony, the District Court explained that Dr. James's expert

report asserted two opinions about the alleged negligence of Drs.

Mateo and Vélez: that "Dr. Vélez and Dr. Mateo 'perforated'

[Rodríguez's] sigmoid colon during the first surgery on April 21,

2016," and that "Dr. Vélez and Dr. Mateo deviated from acceptable

standards of care" in their treatment of Rodríguez. The District

Court then determined that Dr. James's testimony setting forth

those two opinions was inadmissible under Rule 702, excluding on

that basis the entirety of Dr. James's testimony as to Dr. Vélez

and Dr. Mateo.

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 Notably, by excluding all of Dr. James's expert

testimony as to those two defendants, the District Court excluded

Dr. James's testimony concerning his opinion that, "[b]ased on the

medical documents submitted, it appears that [Rodríguez] expired

from sepsis and septic shock, a condition caused by the perforated

sigmoid colon that occurred in the initial surgery on April 21,

2016 performed by [Dr. Vélez and Dr. Mateo]." The District Court

appears to have done so because it treated Dr. James's opinion in

that regard as if it were a "conclu[sion] as a matter of fact that

Dr. Vélez and Dr. Mateo 'perforated'" Rodríguez's sigmoid colon

during the April 21 surgery. Rivera Rodríguez v. Quality Health

Servs. P.R., Civ. No. 18-1287 (PAD), 2022 WL 3445348, at *4 (D.P.R.

Aug. 4, 2022).

To support that aspect of the Rule 702 determination,

the District Court explained that "Dr. James seemingly assume[d]

that Dr. Vélez and Dr. Mateo [perforated Rodríguez's colon] because

[Rodríguez] returned to [HSC] complaining of pelvic pain some days

after being discharged from her first surgery [and] it was

ultimately discovered that she had a perforated colon." Id. But,

the District Court explained, such an assumption was "not enough

[to support] a finding that Dr. Vélez and Dr. Mateo perforated the

colon[.]" Id. The District Court then supported that

determination in a footnote by stating that "Dr. James's conclusion

[was] contradicted by the medical record" because, several days
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after the April 21 surgery, on "April 25, 2016, [Rodríguez] was

tolerating a regular diet and passing flatus and stool normally

and was deemed ready for discharge." Id. at *4 n.3. Yet, the

District Court reasoned, Dr. James "inexplicably state[d] that Dr.

Vélez and Dr. Mateo perforated [Rodríguez's] colon" on April 21.

Id.

There is some force to the plaintiffs' contention that

the District Court erred in this aspect of its ruling under Rule

702 because it wrongly based the ruling on its own assessment of

the "factual underpinning" of the opinion by Dr. James that was

excluded. Daubert, 509 U.S. at 595. As Daubert makes clear,

questions about the strength of "the factual underpinning of an

expert's opinion" are "matter[s] affecting the weight and

credibility of the testimony" and therefore "a question to be

resolved by the jury." Id.

Moreover, the District Court appears to have understood

that Dr. James's testimony would set forth the opinion that Dr.

Vélez and Dr. Mateo perforated the colon during the surgery on

April 21, rather than merely that the colon was perforated during

that surgery. While the District Court explained its reasons for

concluding that testimony by Dr. James that those defendants

perforated the colon at that time was not admissible under Rule

702, it gave no reason for concluding that Rule 702 barred Dr.

James from simply testifying that the colon was perforated then,
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without explicitly attributing the act of perforation to either of

those defendants.

Dr. James's expert report, however, opines only that the

perforation of Rodríguez's sigmoid colon occurred in the initial

surgery on April 21. It does not assert at any point that the

perforation occurred due to any action that either Dr. Mateo or

Dr. Vélez took at that time -- or, for that matter, at any other

time. Indeed, in that respect, the report accords with the

plaintiffs' operative complaint, which also does not allege at any

point that Dr. Vélez or Dr. Mateo acted negligently by perforating

Rodríguez's colon. Instead, the operative complaint alleges that

their negligence lay in their "failure to recognize, appropriately

assess and repair damage to any organs involved in or near the

operative field prior to closing the abdomen" and their "failure

to recognize that [Rodríguez’s] sigmoid colon was damaged in this

circumstance and to perform an appropriate repair procedure to

assure sigmoid colon integrity before abdominal closure."

Despite these potential problems with the District

Court's analysis of the admissibility of this specific portion of

Dr. James's expert testimony under Rule 702, we reject the

plaintiffs' separate contention that the District Court abused its

discretion in excluding Dr. James's broad conclusion that "Dr.

Vélez and Dr. Mateo deviated from acceptable standards of care" in

their treatment of Rodríguez. With respect to that aspect of the
- 23 -
District Court's ruling under Rule 702, Dr. James's report

identifies no national standard of care against which those

defendants' assertedly negligent acts or omissions could be

measured by the trier of fact. There also is no other basis in

the record for concluding by a preponderance of the evidence that

Dr. James's opinion that Dr. Vélez and Dr. Mateo acted negligently

is "the product of reliable principles and methods." Fed. R. Evid.

702(c). We thus agree with Dr. Vélez and Dr. Mateo that the

District Court correctly concluded that Dr. James's opinion that

"Dr. Vélez and Dr. Mateo deviated from acceptable standards of

care" in their treatment of Rodríguez could "only be construed as

one based on a res ipsa loquitur inference, an inference

insufficient to withstand scrutiny in this setting." Rivera

Rodríguez, 2022 WL 3445348, at *4 (citing López-Ramírez v. Grupo

Hima San Pablo, Inc., Civ. No. 16-3192 (RAM), 2020 WL 365554, at

*5 (D.P.R. Jan. 22, 2020) ("[I]n the context of determining the

admissibility of expert testimony, proffered testimony that

consists solely of a res ipsa loquitur opinion would lack the

reliable methodology and specialized information required by Fed.

R. Evid. 702."), aff'd López-Ramírez, 32 F.4th 87).

The question that now remains, with respect to the

plaintiffs' challenge to the grant of summary judgment to Dr. Vélez

and Dr. Mateo, is whether that challenge has merit, given that the

District Court properly excluded Dr. James's conclusion that Drs.
- 24 -
Vélez and Mateo deviated from acceptable standards of care. As we

will next explain, we conclude that the answer is that the

challenge has none.

3.

To be sure, as we have explained, it may be that

testimony from Dr. James that Rodríguez's colon was perforated

during the April 21 surgery was wrongly excluded under Rule 702.

But even if we were to assume as much, there still would be no

basis in the record from which a reasonable juror could conclude

that Dr. Vélez and Dr. Mateo were negligent as alleged, given that

the District Court did not err in excluding Dr. James's testimony

that "Dr. Vélez and Dr. Mateo deviated from acceptable standards

of care" in their treatment of Rodríguez.

We recognize that the plaintiffs do contend that the

District Court's grant of summary judgment was in error because,

even without Dr. James's opinion as to Dr. Vélez's and Dr. Mateo's

negligence, the plaintiffs could have relied at trial on the

testimony of the defendants' expert witnesses to "help the jury to

determine both the proper standards of care and the causal nexus

between [the] defendants' negligence and [the p]laintiffs'

damages." To support this contention, the plaintiffs point out

that none of the defendants' expert witnesses' reports expressly

refutes Dr. James's conclusion that Rodríguez "expired from sepsis

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and septic shock, a condition caused by the perforated sigmoid

colon that occurred in the initial surgery on April 21, 2016."

In granting the defendants' motions for summary

judgment, however, the District Court determined that it was

"irrelevant whether [the] defendants' experts' reports . . .

refute Dr. James'[s] conclusion" that Rodríguez's sigmoid colon

was perforated during her initial surgery.7 As the District Court

noted, all of the defendants' experts opined that the "defendants'

actions did not deviate from the standards of care." As such, the

District Court concluded that the defense experts' trial testimony

would not "align . . . with [the] plaintiffs' legal theories or

otherwise lend any support to their case." And, upon a thorough

review of the evidentiary record, we find no basis on which to

disagree with the determination that Dr. Vélez and Dr. Mateo were

entitled to summary judgment.

7 We note that the District Court gave as one ground for
rejecting this challenge to the grant of summary judgment the
absence of any evidence in the record that would permit a
reasonable juror to find that the colon was perforated on April
21. But, for the reasons we have explained, there would be such
evidence in the record if the District Court erred in excluding
under Rule 702 Dr. James's opinion as to when the colon was
perforated. Thus, we address above the District Court's grounds
for rejecting the plaintiffs' challenge to its summary judgment
ruling on the understanding that such evidence would be in the
record, as, for present purposes, we are assuming it was error to
exclude that aspect of Dr. James's testimony.
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 None of the defendants' experts' reports sets forth any

opinion that would support the plaintiffs' theory that any

negligent act or omission by Dr. Vélez or Dr. Mateo caused

Rodríguez's decline and/or her premature death. In his report,

Dr. Mateo's proffered expert, Dr. Alfredo S. Colón Martínez,

concluded that Dr. Mateo's "involvement in this complicated case

[did] not deviate[] from the standards of care" applicable to the

procedures in which he participated. And Dr. Vélez's proffered

expert, Dr. Adrián Colón Laracuente, concluded in his report that

Dr. Vélez "did not deviate from the standard of care in her

treatment" of Rodríguez.

True, if the District Court had admitted Dr. James's

opinion that Rodríguez's sigmoid colon was perforated during the

April 21 surgery performed by Drs. Mateo and Vélez, then a

reasonable trier of fact could have inferred that Rodríguez's

eventual death from sepsis and septic shock resulted from the

surgery on that date. But even if the trier of fact could

reasonably infer causation from that opinion, the record would

still lack any basis for a finding that either Dr. Vélez or Dr.

Mateo committed any breach of an applicable standard of care that

led to the perforation of Rodríguez's sigmoid colon during that

surgery.

Thus, the record in this case contains no "expert

testimony to limn the minimum acceptable standard and confirm the
- 27 -
defendant doctor[s'] failure to meet it," as is required to

"establish[] a breach of a physician's duty of care" under Puerto

Rico's negligence statute. Cortéz-Irizarry, 111 F.3d at 190.

Accordingly, we affirm the District Court's grant of summary

judgment to Dr. Vélez and Dr. Mateo.

III.

Having affirmed the District Court's grant of summary

judgment to defendants Dr. Vélez and Dr. Mateo, we now must address

the plaintiffs' challenge to the District Court's grant of summary

judgment to Quality Health/HSC. Here, too, the plaintiffs base

their challenge both on a contention that the District Court erred

in excluding under Rule 702 the expert testimony of Dr. James and,

in the alternative, on the ground that the District Court erred in

granting summary judgment to Quality Health/HSC even assuming that

such testimony was properly excluded.

In pressing their challenge to this summary judgment

ruling, the plaintiffs appear to be advancing two distinct theories

by which their claim of negligence against Quality Health/HSC may

survive that defendant's motion for summary judgment. One of these

theories is predicated on HSC staff's alleged failure to utilize

proper hygiene in their care of Rodríguez. The other is predicated

on HSC staff's alleged failure to properly manage Rodríguez's

comorbidity of diabetes. We address each of these theories of

liability separately, addressing, with respect to each, both the
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plaintiffs' challenge to the relevant Rule 702 ruling as to Dr.

James's testimony and their contention that, even assuming the

Rule 702 ruling was sound, the grant of summary judgment to Quality

Health/HSC was not.

A.

Insofar as the plaintiffs premise their challenge to the

grant of summary judgment in favor of Quality Health/HSC on HSC

staff's alleged hygiene-related failures, they do so in part by

challenging the District Court's decision to exclude Dr. James's

testimony under Rule 702. The plaintiffs argue that Dr. James's

expert report "clearly express[ed]" multiple "deficiencies" in HSC

staff's treatment of Rodríguez. And it is true that several of

those alleged deficiencies relate to the plaintiffs' allegation

that HSC staff utilized "inappropriate and poor hygiene at [HSC]

and in the care of [Rodríguez]." In that regard, the plaintiffs

refer to several facts that Dr. James asserts in his expert report

leave "little room for doubt regarding the inappropriate nature

and poor hygiene which was utilized by [HSC] personnel in caring

for [Rodríguez]" -- such as the presence of "several organisms

throughout her various organ systems" and "worms and/or maggots"

in her nostril, the lack of "evidence of appropriate disinfection

of the hospital room, equipment, hospital staff, and the patient

herself," and the fact that Rodríguez's "fecal collector remained

out of place for more than 24 hours."
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 Nothing in Dr. James's report purports to opine,

however, that any of these hygiene-related failures caused

Rodríguez's decline or premature death. Nor is there any other

evidence in the summary judgment record that the plaintiffs

identify that would provide a basis on which a reasonable trier of

fact could find such causation. And that is true even if we take

account of the testimony of the defendants' own expert witnesses.

That being so, we do not see how the plaintiffs'

challenge to the District Court's ruling to exclude Dr. James's

testimony under Rule 702 provides any support for their challenge

to the grant of summary judgment to Quality Health/HSC insofar as

that challenge rests on a claim of negligence owing to HSC staff's

hygiene-related failures in their care for Rodríguez. After all,

the plaintiffs' claim of negligence is that the "premature death

of [Rodríguez] was caused by the negligent management of her

condition." Accordingly, even if we were to assume that there is

merit to the plaintiffs' challenge to the District Court's

exclusionary ruling under Rule 702 with respect to Dr. James's

testimony concerning the poor hygiene-related practices of HSC

staff, the plaintiffs' challenge to the grant of summary judgment

to Quality Health/HSC fails insofar as it rests on the allegation

that HSC staff's failures in that regard caused Rodríguez's decline

and premature death.

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 B.

We turn, then, to the plaintiffs' remaining contention

as to their challenge to the grant of summary judgment to Quality

Health/HSC -- a contention that rests on the theory that HSC

staff's failure to properly manage Rodríguez's comorbidity of

diabetes led to her decline and premature death. Here, too, the

plaintiffs contend in part that the District Court erred in

excluding Dr. James's report under Rule 702. But, once again,

they also contend in the alternative that, even if that ruling was

sound, the grant of summary judgment was not because they could

have relied on other evidence in the record to prove this

allegation.

With respect to the plaintiffs' challenge to the Rule

702 ruling, Dr. James's report contains the opinion that "poor

management of [Rodríguez's] medical comorbidities, such as

inadequate care for her diabetes[,] likely exacerbated her

condition and accelerated her demise." With this assertion, Dr.

James clearly opines that HSC staff's management of Rodríguez's

diabetes was a cause of her premature death. And he also

characterizes that management as "poor" and "inadequate."

Nonetheless, the District Court determined that this

opinion must be excluded because "nowhere in the report does Dr.

James identify the standard of care that [HSC] staff should have

adhered to" in their management of Rodríguez's diabetes; "where
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that standard comes from; and how the staff deviated from that

standard." We agree.

In the absence of both an articulated standard of care

and any specific allegations of acts or omissions by HSC staff

that deviated from that standard of care, we cannot see that Dr.

James's opinion that HSC staff's management of Rodríguez's

diabetes was "poor" and "inadequate" is "the product of reliable

principles and methods," as Rule 702 requires. Fed. R. Evid.

702(c). Thus, even if we were to assume that it was error for the

District Court to have excluded Dr. James's testimony that HSC

staff's treatment of Rodríguez's diabetes caused her decline and

premature death, we see no basis for concluding that it was error

to exclude the portion of Dr. James's opinion that pertains to

whether that treatment was improper.

This aspect of our assessment of the plaintiffs'

challenge to the District Court's Rule 702 exclusion ends up being

dispositive of their summary judgment challenge. That is because,

with Dr. James's opinion pertaining to a breach of the duty of

care excluded, there is nothing else in the summary judgment record

that could make up for it.

None of the defendants' expert witnesses opines that HSC

staff's management of Rodríguez's diabetes deviated from any

applicable standard of care. On the contrary, Quality Health/HSC's

proffered expert witness, internist Dr. Anibelle Altieri Ramirez,
- 32 -
opines in her expert report that "at all times relevant to the

[operative] Complaint, [HSC] personnel acted diligently,

prudently[,] and reasonably and did not incurred in [sic] negligent

acts." Thus, without the existence in the record of "expert

testimony to limn the minimum acceptable standard and confirm the

defendant doctor[s'] failure to meet it," Cortéz-Irizarry, 111

F.3d at 190, we affirm the District Court's determination that

Quality Health/HSC was entitled to summary judgment in its favor

on the plaintiffs' claim of medical malpractice.

IV.

For these reasons, the judgment of the District Court is

affirmed.

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