Laplace-Bayard v. Huerta

United States Court of Appeals
For the First Circuit

No. 01-1109

LILY LAPLACE-BAYARD, ET AL.,

Plaintiffs, Appellants,

v.

DR. FRANCISCO BATLLE,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lipez, Circuit Judge.

Alexander H. Bopp, with whom Indiano & Williams, P.S.C. was on
brief for appellants.
Jorge J. López López, with whom Ramonita Dieppa González and
Otero & López, L.L.P. were on brief for appellee.

July 16, 2002
 LIPEZ, Circuit Judge. This is an appeal from a no-

liability jury verdict in a medical malpractice case. Plaintiffs-

appellants -- Lily LaPlace-Bayard, her husband Daniel Bayard, and

their conjugal partnership (collectively "plaintiffs") -- brought

this diversity action in negligence against, inter alia, defendant-

appellee, Dr. Francisco Batlle, alleging that Dr. Batlle breached

the duty of care owed to his patient LaPlace-Bayard when he failed

to timely diagnose her condition and perform immediate remedial

surgery, causing her substantial injury. After trial, the jury

returned a verdict for Dr. Batlle, and judgment was accordingly
entered in his favor. On appeal, plaintiffs seek a new trial on

the grounds that the trial court abused its discretion by
(1) excluding the testimony of one of their proposed medical
experts and (2) allowing Dr. Batlle to testify as an expert

witness. Unpersuaded by plaintiffs' arguments, we affirm.

I.

In the summer of 1998, when LaPlace-Bayard and her then-
fiance Daniel Bayard were residents of the U.S. Virgin Islands,
LaPlace-Bayard was diagnosed with a cyst on one of her ovaries.
Upon consultation with a gynecologist in Puerto Rico, LaPlace-

Bayard decided to undergo surgery to have the cyst removed. The

surgery took place on August 6, 1998, at Auxilio Mutuo Hospital in

Puerto Rico. It is undisputed by the parties to this appeal that,

during surgery, the operating physician inadvertently perforated

LaPlace-Bayard's colon in removing the cyst. That perforation went

unnoticed, however, and LaPlace-Bayard was discharged from the

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hospital later that day. Complaining of abdominal pain and fever,

LaPlace-Bayard returned to the hospital on August 7, 1998, where

she was seen by, inter alia, an emergency room surgeon, Dr. Batlle,
who diagnosed her as suffering from "acute abdomen," an intra-

abdominal condition manifested by severe pain. On August 8, 1998,

Dr. Batlle performed exploratory surgery on LaPlace-Bayard and,
upon discovery, repaired the perforation in her colon.

Following surgery, Dr. Batlle, as her attending

physician, had primary responsibility for LaPlace-Bayard during her

post-operative stay in the hospital. Given the risk of infection

associated with colon perforation reparation, Dr. Batlle put

LaPlace-Bayard on a regimen of antibiotics and arranged for a

consultation with an infectious disease specialist. After her
discharge from the hospital on August 16, 1998, she returned to her

residence in St. Thomas. However, she continued to experience

nausea, abdominal pain and difficulty breathing. As a result, on
August 23, 1998, LaPlace-Bayard admitted herself into Palms West

Hospital in Florida, where she was treated for acute pancreatitis,

severe pleural effusion (fluid in the thoracic cavity), suppurative

peritonitis (infection in abdominal cavity), and a serious

bacterial infection. She was discharged from Palms West on

September 1, 1998.

On August 5, 1999, plaintiffs brought this medical

malpractice action against, inter alia, Auxilio Mutuo Hospital, Dr.

Batlle, and several other physicians, alleging negligence in the

care and treatment of LaPlace-Bayard at Auxilio Mutuo Hospital in

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August 1998. Specifically with respect to Dr. Batlle (the only

defendant relevant to this appeal), plaintiffs claimed in their

pre-trial submission that Dr. Batlle, upon diagnosing LaPlace-
Bayard with "acute abdomen" on August 7, 1998, should have

immediately diagnosed a perforated colon and performed remedial

surgery. He failed to do so and instead waited over twelve hours
before performing the surgery.1 That delay caused additional fecal

material to leak into LaPlace-Bayard's abdominal cavity,

exacerbating the infection. Plaintiffs alleged that Dr. Batlle

thus breached his duty of care owed to LaPlace-Bayard under Puerto

Rico law, specifically 31 L.P.R.A. § 5141,2 and caused her severe

physical injury and emotional pain. Dr. Batlle responded that he

was not negligent in his care and treatment of LaPlace-Bayard and
that LaPlace-Bayard was largely at fault for her damages because

she failed to follow the instructions provided by her physicians.

Over the course of the litigation, the parties engaged in
settlement discussions. By August 16, 2000, plaintiffs had reached

1
The parties disagree as to why Dr. Batlle did not perform
surgery sooner. LaPlace-Bayard claims that Dr. Batlle should have
performed surgery immediately on August 7, 1998, when he diagnosed
her with "acute abdomen." According to Dr. Batlle, however, he did
in fact recommend surgery to LaPlace-Bayard on August 7, but she
did not consent to surgery until August 8.
2
Section 5141 provides:

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. Concurrent imprudence of the
party aggrieved does not exempt from liability, but
entails a reduction of the indemnity.

31 L.P.R.A. § 5141.

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a settlement3 with all of the defendants, except for Dr. Batlle.
Previously, in a scheduling order dated January 26, 2000, the court

had informed the parties that a pre-trial conference was to be held
on August 22, 2000, and directed them to file a Joint Proposed Pre-

trial Order in advance of that conference. On August 18, 2000,

plaintiffs informed the court that (1) a settlement had been
reached with four of the five named defendants; (2) they were

hopeful that a Joint Proposed Pre-Trial Order would not have to be

filed in this case because a settlement with Dr. Batlle, the sole

remaining defendant in the case, seemed imminent; and (3) in the

event a settlement was not reached with Dr. Batlle by August 21,

2000, the proposed pre-trial order would be submitted at that

point.
On August 22, 2000, the pre-trial conference was

cancelled because of Hurricane Debby. On August 23, 2000, Dr.

Batlle sent a letter to plaintiffs categorically rejecting any
settlement demand. The next day, plaintiffs filed (1) a motion to

reschedule a pre-trial/settlement conference and (2) given defense

counsel's unwillingness to participate in a joint submission, a

unilateral proposed pre-trial order, listing Dr. Vilaire Bayard,

Jr., M.D.,4 a Massachusetts-based surgeon, as their only expert
witness. Dr. Batlle did not list any expert witnesses in his pre-

trial submission.

3
That settlement was finalized on August 24, 2000.
4
Dr. Bayard and Daniel Bayard are second cousins.

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 On October 16, 2000, the court held a status conference.

Plaintiffs informed the court that settlement efforts with Dr.

Batlle had been unsuccessful to date, but that they were not
prepared for trial. Nevertheless, the district court issued an

order which provided:

This case has been settled as to all
defendants except Dr. Francisco Batlle-Batlle.
The demand against this physician is $20,000.
The court strongly recommends that the case be
settled in that amount . . . . 10 days to
report. Trial shall be held Nov. 2, [20]00,
9:30 A.M.

Accordingly, plaintiffs gave Dr. Batlle until October 25, 2000, to

accept the settlement demand. On that date, Dr. Batlle again

flatly rejected the settlement demand, setting in motion a flurry

of trial preparation activity, including the following: (1) on
October 26, plaintiffs filed an emergency motion to take a

videotaped deposition of Dr. Bayard and to substitute that

deposition for his live testimony, due to his unavailability to
appear at trial; that motion was granted over defendant's

objection, and the deposition was taken on October 31 in Worcester,

Massachusetts; (2) also on October 26, plaintiffs notified the

court of their intention to name an additional medical expert

witness, Dr. Claudia Lorenzo Pérez, M.D. (Dr. Lorenzo) and the next

day filed a motion to supplement their proposed pre-trial order to

include Dr. Lorenzo as an expert witness. In opposition to that

motion, Dr. Batlle filed an in limine motion to bar Dr. Lorenzo

from testifying at trial.

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 The trial commenced on November 2, 2000. At trial, Dr.

Bayard, via his October 31 videotaped deposition, provided expert

testimony on behalf of plaintiffs on the applicable duty of care

owed by Dr. Batlle to LaPlace-Bayard. Upon the close of Dr.

Bayard's testimony, the court, granting Dr. Batlle's in limine

motion, barred Dr. Lorenzo from testifying as an expert witness in

plaintiffs' case. In defendant's case, Dr. Batlle testified on his

own behalf but presented no independent medical expert testimony.

The jury returned a no-liability verdict for Dr. Batlle and

judgment was entered accordingly. This appeal ensued.

II.

Plaintiffs raise two issues on appeal as grounds for a
new trial. First, they argue that the court improperly excluded

testimony of Dr. Lorenzo, one of their two proposed medical expert
witnesses. Second, they claim that Dr. Batlle testified as an
expert witness and should not have been allowed to do so.

A. Exclusion of Dr. Lorenzo's Medical Expert Testimony

The court explained its decision to exclude Dr. Lorenzo's

testimony as follows:

I have read the doctor's report, and I have a
serious concern about the fact that this case
has been on the docket for quite a while. And
the truth of the matter is that everybody left
expert retaining and preparation for the very
last minute. Perhaps everybody thought the
case would settle. I'm not trying to find
fault here, but the truth of the matter is
that since October 16th it was quite evident
that this case could be tried, especially when
it did not settle as to one of the co-
defendants. And I find it a bit difficult to

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 accept that somebody who is retained in the
middle of taking Dr. Bayard's deposition on
October 30th and October 31st is going to
testify now and has not been consulted before.
And I think it's quite cumulative, also. And
I have read [Dr. Lorenzo's] report, and I
don't see anything there that [Dr. Bayard] has
not covered.
There are two grounds for the exclusion of Dr. Lorenzo's testimony

apparent from this ruling: (1) plaintiffs failed to timely announce

their intention to use Dr. Lorenzo as an expert witness, and

(2) Dr. Lorenzo's anticipated testimony (as evidenced from her

expert report) would be cumulative of Dr. Bayard's expert

testimony, already admitted into evidence by videotape deposition.

We examine each rationale in turn.
1. Untimely Disclosure

The court's exclusion of Dr. Lorenzo's testimony on the

ground of untimely disclosure is a discovery sanction under Fed. R.
Civ. P. 37(c)5 for a violation of the mandatory discovery rules

5
Rule 37(c) provides in relevant part:

A party that without substantial justification fails to
disclose information required by Rule 26(a) or 26(e)(1),
or to amend a prior response to discovery as required by
Rule 26(e)(2), is not, unless such failure is harmless,
permitted to use as evidence at a trial, at a hearing, or
on a motion any witness or information not so disclosed.
In addition to or in lieu of this sanction, the court, on
motion and after affording an opportunity to be heard,
may impose other appropriate sanctions. In addition to
requiring payment of reasonable expenses, including
attorney's fees, caused by the failure, these sanctions
may include any of the actions authorized under Rule
37(b)(2)(A), (B), and (C) and may include informing the
jury of the failure to make the disclosure.
Fed. R. Civ. P. 37(c).

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under Fed. R. Civ. P. 26(a)(2).6 We review that ruling under an

abuse of discretion standard. See Thibeault v. Square D Co., 960

F.2d 239, 243 (1st Cir. 1992) ("In reviewing a trial court's
sanction order concerning a discovery-related matter, an abuse-of-

discretion standard controls.").

Rule 26(a)(2) mandates the timely disclosure of the
identity of expert witnesses as well as expert reports in

accordance with the directions of the trial court. Here, the

district court, in its January 26, 2000, scheduling order, directed

the parties to identify their expert witnesses and summarize each

expert witness's qualifications in a joint proposed pre-trial order

to be filed no later than August 18, 2000. In their August pre-

trial memorandum, however, plaintiffs listed Dr. Bayard as their
only expert witness. It was not until October 26, 2000, barely a

week before trial, that plaintiffs disclosed their intention to use

6
Rule 26(a)(2) provides in relevant part:

[A] party shall disclose to other parties the identity of
any person who may be used at trial to present evidence
under Rules 702, 703, or 705 of the Federal Rules of
Evidence. . . . [T]his disclosure shall, with respect to
a witness who is retained or specially employed to
provide expert testimony in the case or whose duties as
an employee of the party regularly involve giving expert
testimony, be accompanied by a written report prepared
and signed by the witness. . . . These disclosures shall
be made at the times and in the sequence directed by the
court. In the absence of other directions from the court
or stipulation by the parties, the disclosures shall be
made at least 90 days before the trial date or the date
the case is to be ready for trial . . . .

Fed. R. Civ. P. 26(a)(2).

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Dr. Lorenzo as an expert witness.7 Until then, Dr. Batlle had no

notice of plaintiffs' intention to retain another medical expert

witness. Dr. Lorenzo's expert report and curriculum vitae were not
provided to Dr. Batlle until the night of October 30, 2000, a mere

three days before trial.

Plaintiffs argue that their failure to comply with the
discovery rules in a more timely manner was justified by the

"unusual" circumstances of the case, described as the likelihood of

settlement with all of the defendants. Given that likelihood, they

opted not to retain Dr. Lorenzo earlier in the litigation in an

effort to keep costs down, thus maximizing the possibility of

settlement. Only on October 25 when Dr. Batlle unequivocally

rejected the $20,000 settlement demand did they retain Dr. Lorenzo
as an expert and expedite the production of expert reports.

That justification, however, is woefully inadequate to

excuse plaintiffs' tardy disclosures. Litigants routinely engage
in settlement negotiations until the eve of trial and beyond. That

reality does not excuse them from responding to interrogatories and

retaining experts and disclosing them and their reports to opposing

counsel in a timely manner pursuant to the discovery rules.

Plaintiffs simply chose to postpone the costs associated with

retaining an expert in an attempt to increase, in their view, the

likelihood of settlement. In doing so, they assumed the risk that

their delayed trial preparation would compromise their ability to

7
On October 27, 2000, plaintiffs moved to supplement their
pre-trial order to add Dr. Lorenzo as a second expert witness.

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put on their best case. To excuse their belated disclosures now

would relieve them of the consequences of the risk they assumed.

Furthermore, we have recognized that "[i]n the arena of
expert discovery -- a setting which often involves complex factual

inquiries -- Rule 26 increases the quality of trials by better

preparing attorneys for cross-examination." Id. at 244. We cannot

ignore the real danger that, if Dr. Lorenzo had been allowed to

testify, plaintiffs' belated disclosures would have undermined

defense counsel's ability to cross-examine her. See id. at 246-47

("Many courts -- this court included -- have recognized the

introduction of new expert testimony on the eve of trial can be

seriously prejudicial to the opposing party.").

As noted above, district courts have broad discretion in
meting out Rule 37(c) sanctions for Rule 26 violations. See Ortiz-

Lopez v. Sociedad Espanola de Auxilio Mutuo Y Beneficiencia de

Puerto Rico, 248 F.3d 29, 34 (1st Cir. 2001). These sanctions
range from limited exclusion to dismissal of the case entirely.

See id. "[E]xclusion of evidence is a standard sanction for a

violation of the duty of disclosure under Rule 26(a)." Samos Imex

Corp. v. Nextel Communications, Inc., 194 F.3d 301, 305 (1st Cir.

1999). Given the facts in this case, we could hardly say that the

district court exceeded its discretion in excluding Dr. Lorenzo's

testimony.

2. Cumulativeness

For the sake of completeness, and to dispel any notion of

plaintiffs that the exclusionary ruling of the trial court was

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somehow unfair to them, we evaluate the court's second ground for

excluding Dr. Lorenzo's testimony, namely, that it would have been

cumulative under Rule 403 of the Federal Rules of Evidence in light
of the testimony of Dr. Bayard, plaintiffs' other medical expert.

Plaintiffs insist that the court did not understand the

full scope of their case. They claim that their case against Dr.
Batlle was premised upon two discrete negligence theories of

liability to be addressed separately by each expert. Dr. Bayard,

trained as a surgeon, testified only as to Dr. Batlle's negligence

in his capacity as LaPlace-Bayard's surgeon. Dr. Lorenzo -- an

alleged expert on matters of risk management and the administration

of health institutions -- would have testified as to the negligence

of Dr. Batlle in his role as LaPlace-Bayard's attending physician
and in managing the post-operative risks associated with her

condition. Thus, having retained two separate experts to serve two

distinct purposes, plaintiffs maintain that Dr. Lorenzo's testimony
would have differed dramatically from that of Dr. Bayard.

Plaintiffs overstate the pre-trial clarity of their two

discrete theories of Dr. Batlle's liability. In their pre-trial

submission, they articulated only one theory of liability to the

trial court -- namely, that Dr. Batlle was negligent in his role as

LaPlace-Bayard's surgeon:

Dr. Batlle noted acute abdominal pain and high
fever. Dr. Batlle should have immediately
diagnosed a punctured colon and performed
immediate remedial surgery. As a result of
Dr. Batlle's failure to timely diagnose
[LaPlace-Bayard's] punctured colon and his
failure to timely perform corrective surgery,
she suffered permanent and irreparable

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 physical injuries, and continues to suffer
both substantial emotional and physical pain.
(emphasis added). In that submission, plaintiffs further

characterized the ultimate facts in dispute as "the extent of the

damage caused by the delay in performing corrective surgery after

[LaPlace-Bayard] presented herself at the emergency room with acute

abdominal pain." (emphasis added). There is no mention in

plaintiffs' pre-trial memorandum that their theory of the case

included Dr. Batlle's negligence in LaPlace-Bayard's post-operative

care, including managing the risks associated with her post-

operative condition. In the absence of such timely representations

to the court below, we doubt that plaintiffs could rely on that
broader theory of liability now to win a new trial. See Thibeault,

960 F.2d at 247 (noting potential for prejudice to opposing counsel

in "an eleventh-hour change in a party's theory of the case").
We need not decide that issue, however, because Dr.

Bayard did present testimony on Dr. Batlle's post-operative

negligence, as plaintiffs said he would. Contrary to their

position on appeal, plaintiffs explicitly stated in an October 26,
2000, court submission that "Dr. Bayard will serve as the

Plaintiffs' expert on surgery and the quality of aftercare rendered

post-operatively by Dr. Battle [sic]." Similarly, plaintiffs'

counsel explicitly stated at Dr. Bayard's October 31 deposition his

intention to use Dr. Bayard both "as an expert in this trial with

respect to the surgical procedures, and the quality of after-care

that was rendered by the surgeon, Dr. Francisco Batlle." The

record indicates that Dr. Bayard did in fact provide expert opinion

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testimony on both the August 8 surgery as well as the quality of

after-care provided by Dr. Batlle in his role as attending

physician.
With respect to the surgery, Dr. Bayard testified that,

when a patient presents with acute abdomen after recently

undergoing surgery to remove an ovarian cyst, a physician should
suspect a perforated bowel and should perform surgery immediately.

He testified that there was no medical justification for Dr.

Batlle's waiting twelve hours to perform the surgery. His

testimony, however, did not end there. Dr. Bayard proceeded to

testify as to (1) the diagnostic lab tests that should have been

performed on LaPlace-Bayard in the days following the August 8

surgery; (2) his opinion on the range of antibiotics Dr. Batlle
administered to LaPlace-Bayard after surgery; and (3) his opinion

that Dr. Batlle should have taken a culture of the infection

observed during surgery in order to know what antibiotics to
administer. He testified that LaPlace-Bayard should not have been

discharged from the hospital on August 16, 1998, because it was

likely she was suffering from acute pancreatitis and other

conditions at that time. In light of Dr. Bayard's testimony as to

LaPlace-Bayard's post-operative care, we can hardly find fault with

the district court's finding that Dr. Lorenzo's proffered testimony

would have been cumulative evidence.

In a further effort to distinguish Dr. Lorenzo's

testimony from that of Dr. Bayard, plaintiffs argue that Dr.

Bayard's credibility may have been diminished because (1) he was

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plaintiff Daniel Bayard's second cousin, and (2) Dr. Bayard, unable

to read Spanish, was limited in his review of the medical file to

those records that were in English. Thus, plaintiffs argue, the
testimony of Dr. Lorenzo (who was fluent in Spanish and thus able

to review the entire medical file) would have bolstered the

strength of their case. Again, plaintiffs seek relief from the
consequences of their own decisions. Plaintiffs chose to disclose

in their pre-trial submission only one medical expert witness,

knowing of his inability to understand Spanish and of his

relationship to Daniel Bayard. Moreover, plaintiffs could have

provided Dr. Bayard with an English translation of the Spanish

portions of the medical record. They chose not to do so. Having

made these decisions, they cannot complain now of the consequences.
Finally, plaintiffs claim that even if the exclusion of

Dr. Lorenzo's testimony was otherwise warranted, the timing of the

court's ruling irreparably prejudiced them. They point out that,
although Dr. Batlle had filed his motion to exclude Dr. Lorenzo's

testimony before trial had commenced, it was not until after the

court heard Dr. Bayard's videotaped deposition testimony that it

announced its decision to exclude Dr. Lorenzo's testimony. At that

point, however, plaintiffs had already told the jury in their

opening statement that it would hear testimony from "experts" in

the plural. They now claim that the court's ruling prevented them

from keeping their promise of introducing testimony from more than

one expert, thus undermining their credibility with the jury.

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 At the time that plaintiffs gave their opening statement,

they knew that the court had not yet ruled on Dr. Batlle's motion

to exclude Dr. Lorenzo's testimony. Well aware of that pending in
limine motion, plaintiffs proceeded at their peril in promising the

jury testimony from more than one expert. Having made that choice,

plaintiffs cannot expect once again to be relieved of the
consequences of their own judgment call.

B. Admission of Dr. Batlle's Testimony

In considering plaintiffs' second ground for appeal, we

note at the outset that the court never characterized Dr. Batlle as
an expert witness, stating instead that Dr. Batlle would be

"treated as the surgeon who operated on" LaPlace-Bayard.
Nevertheless, plaintiffs argue that Dr. Batlle gave expert
testimony at trial and should not have been allowed to do so

without providing an expert report and disclosing his
qualifications as required by Fed. R. Civ. P. 26(a)(2)(B).8
Despite these general averments, plaintiffs fail to

identify which particular statements of Dr. Batlle should have been
excluded. Nor did they raise at trial any specific objections
(save one as to relevancy) during the course of Dr. Batlle's direct

examination. Having carefully examined the trial transcript of Dr.
Batlle's direct testimony ourselves, we cannot identify a colorable
basis for plaintiffs' claim of error.

8
See supra note 5.

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 In his direct examination, Dr. Batlle methodically took

the jury through a day-by-day account of his actions and decisions

relating to the care and treatment of LaPlace-Bayard at Auxilio
Mutuo Hospital from August 7, 1998, through her discharge on August

16, 1998. He was never asked on direct to render opinions

regarding treatment by other physicians or other institutions. Dr.
Batlle only offered opinions beyond the scope of his own treatment

of LaPlace-Bayard in response to plaintiffs' own questions on

cross-examination as to the treatment given to LaPlace-Bayard at

Palms West Hospital after her discharge from Auxilio Mutuo

Hospital.9 Having opened the door to that testimony, plaintiffs

cannot now be heard to complain about the court's admission of such

testimony.10 See McDonald v. Federal Laboratories, Inc., 724 F.2d

243, 248 (1st Cir. 1984) (rejecting claim of error in admission of

expert testimony where challenged testimony was elicited by

appellant's counsel); see also Aetna Casualty & Surety Co. v.

Tryniecki, 293 F.2d 289, 290-91 (5th Cir. 1961) (similar result);

11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal

9
In fact, defense counsel specifically objected to that line
of questioning as being outside the scope of direct examination.
Those objections were overruled.
10
In a corollary argument, plaintiffs maintain that the court
abused its discretion when it failed to instruct the jury that Dr.
Batlle was not testifying as an expert. We disagree. The jury
heard plaintiffs' counsel explicitly state his intention to use Dr.
Bayard as an expert witness. In contrast, neither the court nor
defense counsel ever told the jury that Dr. Batlle would be
testifying as an expert on his own behalf. Moreover, the jury knew
that Dr. Batlle was the defendant. Thus, there was no need to
instruct the jury that Dr. Batlle was not an expert witness in this
case.

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Practice and Procedure § 2885 at 463 n. 14 (2d ed. 1995) (citing

cases where court refused to notice any alleged error where such

error was invited by complaining party).

Affirmed.

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