United States Court of Appeals
For the First Circuit
No. 09-1758
HAZEL I. CRUZ-VÁZQUEZ, ET AL.,
Plaintiffs, Appellants,
v.
MENNONITE GENERAL HOSPITAL, INC., ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
Before
Torruella, Lipez and Howard, Circuit Judges.
Pedro F. Soler-Muñiz for plaintiffs.
José Héctor Vivas, with whom Vivas & Vivas was on brief, for
defendants Brenda M. Torres Perez, her husband, and their conjugal
partnership.
Roberto Ruiz Comas for defendants Edward Gomez-Torres and the
conjugal partnership Gomez-Torres.
Anselmo Irizarry-Irizarry, with whom Matta & Matta, PSC Law
Firm was on brief, for defendant General Mennonite Hospital.
July 26, 2010
LIPEZ, Circuit Judge. In this action filed pursuant to
Puerto Rico's medical malpractice law, Articles 1802 and 1903 of
the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, §§ 5141-42, and
the federal Emergency Medical Treatment and Active Labor Act
("EMTALA"), 42 U.S.C. § 1395dd, the district court excluded the
testimony of the plaintiffs' lone expert witness at trial. As a
result of the court's ruling, the plaintiffs failed to offer proof
on crucial elements of their case, and the district court
consequently granted judgment as a matter of law for the
defendants. The plaintiffs appeal, arguing that the district court
abused its discretion when it excluded the expert testimony and
that its award of judgment for the defendants must be vacated. We
agree.
I.
The plaintiffs brought this action against Mennonite
General Hospital, two physicians, and several others, alleging that
the defendants' negligence caused the premature birth of their
daughter and her death two days later, in violation of Puerto Rico
law. They also alleged that the hospital violated EMTALA when it
failed to follow its own established medical screening protocols in
treating Hazel Cruz-Vázquez.
As part of their case in chief on both the EMTALA and
Puerto Rico law claims, the plaintiffs proposed to introduce
testimony from one expert witness, Dr. Carlos E. Ramírez. The
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plaintiffs disclosed their intention to call Dr. Ramírez at the
scheduling conference held by the district court on June 27, 2008.
In due course, they provided the defendants with a copy of the
expert report prepared by Dr. Ramírez and with a version of his
resume that was current through 2004. Dr. Ramírez was deposed by
counsel for the defendants in November 2008.
A jury trial began on March 30, 2009. On the fourth day
of trial, the plaintiffs called Dr. Ramírez to testify. In
response to an oral motion by the defendants, however, the court
conducted a Daubert inquiry outside the presence of the jury and
ruled that Dr. Ramírez was not a qualified expert and would not be
permitted to testify. See Daubert v. Merrell Dow Pharm., 509 U.S.
579 (1993). The court then determined that the plaintiffs lacked
evidence to support their claims and granted the defendants' motion
for judgment as a matter of law on that basis.
The plaintiffs appeal. As we have addressed the relevant
law on the admission of expert testimony at some length in our
recent opinion in Pagés-Ramírez v. Ramírez-González, 605 F.3d 109,
113-17 (1st Cir. 2010), we briefly restate our discussion there and
offer a few additional points.
II.
To succeed with a medical malpractice claim, a plaintiff
must introduce evidence on causation and the standard of care in
the relevant medical circumstances. See id. at 113 (listing
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elements of medical malpractice under Puerto Rico law). Almost
invariably, a trier of fact will need expert testimony in order to
determine the applicable standard of care and to make a judgment on
the cause of the injury. Id. Similarly, expert testimony is
generally required to assess certain elements of an EMTALA claim.
See, e.g., Ortiz-Lopez v. Sociedad Española de Auxilio Mutuo y
Beneficiencia de P.R., 248 F.3d 29, 36-37 (1st Cir. 2001) (finding
that "[w]ithout an expert witness through which to enter medical
records or provide an opinion in support of their [EMTALA]
allegations . . . plaintiffs could not satisfy their burden of
proving an EMTALA violation."). For example, as the district court
below noted, without expert testimony, it was impossible to
determine "whether or not Plaintiff Cruz was demonstrating the
symptoms that require activation of Mennonite[] [General
Hospital's] protocol for patients with bleeding during the third
trimester of pregnancy," a necessary finding for the plaintiffs'
EMTALA claim to succeed.
As we explained in Pagés-Ramírez, the judge's task in
determining whether to admit or exclude expert testimony is "to
ensure that the expert's testimony 'both rests on a reliable
foundation and is relevant to the task at hand.'" 605 F.3d at 113
(quoting United States v. Mooney, 315 F.3d 54, 62 (1st Cir. 2002)
(additional quotation marks omitted)). Although a district court
has substantial discretion to make admissibility determinations on
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expert testimony, that discretion is not without bounds. Id. at
112. An expert "with appropriate credentials and an appropriate
foundation for the opinion at issue must be permitted to present
testimony as long as the testimony has a 'tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence.'" Id. at 115 (quoting Fed. R. Evid. 401).
Generally, if an expert has "scientific, technical, [and] other
specialized knowledge" that "will assist the trier better to
understand a fact in issue," Gaydar v. Sociedad Instituto Gineco-
Quirurgico y Planificacion Familiar, 345 F.3d 15, 24 (1st Cir.
2003) (quotation marks omitted), and that knowledge "rests on a
reliable foundation," Mooney, 315 F.3d at 62 (quotation marks
omitted), that testimony must be admitted. Pagés-Ramírez, 605 F.3d
at 113-14.
A. Dr. Ramírez's Medical Credentials
Dr. Ramírez received his medical degree in 1981 from the
University of Puerto Rico, Medical Sciences Campus, and completed
an internship in obstetrics and gynecology at the San Juan
University Hospital in the Puerto Rico Medical Center in 1982. As
a resident, from 1982 to 1985, he cared for approximately five
hundred premature labor patients and thousands of non-premature
labor patients. He became board certified in obstetrics and
gynecology in 1987 and was re-certified in 1997. According to Dr.
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Ramírez, he is currently board qualified in those specialties,
although his board certification has expired. As a part-time
faculty member in the Department of Obstetrics and Gynecology, his
duties for a time included serving as an attending physician in
charge of the labor room one day a week at the University of Puerto
Rico Hospital. Dr. Ramírez served as a faculty member in
gynecology and obstetrics for twenty-six years.
In 1985, while Dr. Ramírez was on the faculty at the
University of Puerto Rico Hospital, he and a partner established a
private practice in general obstetrics and gynecology. After an
interlude during which Dr. Ramírez focused in his private practice
on pelvic surgery and gynecology while still treating obstetrics
patients at the hospital, he returned to focus on obstetrics in
1994. For approximately eight years he treated the full range of
obstetrics patients at his practice.
In 2000, after being diagnosed with cancer, Dr. Ramírez
left his private practice. For a time he continued to see patients
at an oncologic hospital. In 2003, however, his cancer returned
and he stopped seeing patients. Since that time, he has served as
a consultant to a company owned by his wife that screens doctors
seeking to provide care to Medicare patients through a health
maintenance program. He has also begun lecturing and doing
research on health law, medical malpractice, and EMTALA, among
other medicine-related subjects. He has served as an expert
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witness in approximately 150 medical malpractice cases in the past
ten years. At the Daubert hearing, he explained that his most
recent work had been primarily for plaintiffs because defense
attorneys had not consulted him on any cases. He explained that
defendants are reluctant to hire experts who have testified for
plaintiffs in medical malpractice actions.
B. The Decision to Exclude Dr. Ramírez's Testimony
1. The Court's Reasoning
The district court excluded Dr. Ramírez's testimony on
the ground that Dr. Ramírez was biased in favor of plaintiffs in
medical malpractice cases.1 In support of its decision, the court
1
The district court also found that the plaintiffs' failure
to provide a copy of Dr. Ramírez's fully up-to-date curriculum
vitae was a violation of Rule 37(c)(1) of the Federal Rules of
Civil Procedure and provided "a sufficient basis for the Court's
decision to exclude Dr. Ramírez's testimony." This secondary
justification for the exclusion of Dr. Ramírez's testimony is
unsupportable. As the district court correctly noted, Rule
37(c)(1) provides that a party who violates the rule may not use
undisclosed information at trial "unless the failure was
substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1).
At oral argument, the defendants conceded that the plaintiffs'
production of Dr. Ramírez's 2004 curriculum vitae, rather than his
2008 curriculum vitae, was not prejudicial to them. They
acknowledged that any additional relevant information provided in
the updated curriculum vitae, such as Dr. Ramírez's activities
since he left medical practice, was known to them. As the
procedural rule itself makes clear, in the absence of harm to a
party, a district court may not invoke the severe exclusionary
penalty provided for by Rule 37(c)(1). This is especially so when,
as was the case here, the exclusion would result in the dismissal
of the plaintiffs' case. See Esposito v. Home Depot U.S.A., Inc.,
590 F.3d 72, 79 (1st Cir. 2009) (finding that when a discovery
sanction "carrie[s] the force of a dismissal, the justification for
it must be comparatively more robust").
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described at length the danger of bias that, in the court's view,
inhered in Dr. Ramírez's recent work as a medical expert and
consultant. The court wrote:
Dr. Ramírez has not been a practicing
obstetrician, or physician in any specialty,
during the past seven years. Instead, Dr.
Ramírez informed the Court that he has been
doing a variety of consulting work, including
consulting as an expert witness in
approximately 150 cases. Dr. Ramírez
testified that during the past year, he has
worked exclusively on cases in which he writes
reports or gives testimony on behalf of
plaintiffs. Dr. Ramírez has not acted as an
expert on behalf of a defendant in a single
case during the past year. The Court finds
that this track record indicates a bias in
favor of Plaintiffs.
The court also highlighted the fact that "Dr. Ramírez has
begun collaborating with the distinguished attorney for Plaintiffs
in this case . . . to give lectures regarding medical-malpractice
and EMTALA." The Court noted that those lectures were "for profit,
thereby focusing [Dr. Ramírez's] work further on assisting
plaintiffs who seek to sue doctors and hospitals for various
alleged violations of the law." This too "indicate[d] to the Court
that Dr. Ramírez is not an impartial witness" because "he has a
significant stake in the successful outcome of cases brought by
alleged victims of medical malpractice."
In a similar vein, the Court described its concern that,
"[b]y withdrawing from practice and the corresponding supervision
of the licensing board, Dr. Ramírez has set the stage for a line of
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work in which he need not provide impartial diagnoses of patients."
The court concluded that such "lack of control casts serious doubt
over the degree to which Dr. Ramírez's testimony would be made in
the manner to be expected of a responsible physician who is subject
to oversight by a medical licensing board."
Citing a "trend" in which "supposed experts" do not
"utiliz[e] scientific methods to render an opinion" but instead
"twist[] scientific methods to produce a result that will support
the case of those footing the bill," the district court explained
that it evaluated such experts "with a highly critical eye in order
to preserve the sanctity of the common law legal system."
Consistent with that concern, the court concluded that "Dr.
Ramírez's testimony is unlikely to be fair and impartial" and would
therefore be excluded.
2. The Court's Error
The district court cited as the basis for excluding Dr.
Ramírez's testimony aspects of his work that are typically
established through cross-examination of an expert witness at trial
in an effort to discredit his or her testimony. The court's
reasoning had nothing to do with the scientific validity of the
opinion that Dr. Ramírez proposed to offer or the principles that
underlie it. Yet, the Supreme Court has emphasized that the
"overarching subject" of the trial court's inquiry when assessing
proposed expert testimony "is the scientific validity -- and thus
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the evidentiary relevance and reliability -- of the principles that
underlie a proposed submission." Daubert, 509 U.S. at 594-95. By
excluding Dr. Ramírez's testimony due to its own determination that
Dr. Ramírez would be a biased witness on the grounds cited, the
district court abused its discretion.
Assessing the potential bias of an expert witness, as
distinguished from his or her specialized training or knowledge or
the validity of the scientific underpinning for the expert's
opinion, is a task that is "properly left to the jury." United
States v. Carbone, 798 F.2d 21, 25 (1st Cir. 1986). While an
expert witness is always "subject to being discredited" on cross-
examination, the jury must be "free to weigh the credentials of the
witness[] and the cogency of the bases given for [his] opinions"
if the expert has the requisite basis to testify on an issue of
relevance. Sailor Inc. F/V v. City of Rockland, 428 F.3d 348, 354
(1st Cir. 2005). Questions such as "bias, and the weight of the
evidence" are "matters for the factfinder." Den Norske Bank AS v.
First Nat'l Bank of Boston, 75 F.3d 49, 58 (1st Cir. 1996). Thus,
considerations such as an expert witness's pecuniary interest in
the outcome of a case, or his status as an expert witness only for
one side of an issue, or the extent to which a doctor currently
sees patients, go to the probative weight of testimony, not its
admissibility. See, e.g., id. (holding that interests of expert
witnesses who were employees of plaintiff affected the weight of
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their testimony, not its admissibility); Ethicon, Inc. v. U.S.
Surgical Corp., 135 F.3d 1456, 1465 (Fed. Cir. 1998). Furthermore,
specific credentials, such as an up-to-date board certification,
are not required for an expert to be qualified to testify. Pagés-
Ramírez, 605 F.3d at 114.
Dr. Ramírez's "specialized knowledge," namely his medical
training and experience in the field of obstetrics and gynecology
and whether it would "assist the trier better to understand a fact
in issue," Gaydar, 345 F.3d at 24 (quotation marks omitted), were
the appropriate field of inquiry for the district court when it
performed its gatekeeping function and evaluated him as a
prospective expert. Instead, the district court deviated from that
field of inquiry when it made findings that Dr. Ramírez gave
testimony exclusively for plaintiffs during the past year, that he
is paid to give lectures on medical malpractice and EMTALA, and
that he might testify irresponsibly due to a lack of board
certification, and then excluded his testimony on the basis of
bias. In so doing, the district court invaded the province of the
jury and exceeded its discretion. See Pagés-Ramírez, 605 F.3d at
116 ("[T]he Rules of Evidence require that the judge admit expert
testimony relevant to the disposition of the case when it will
assist the trier of fact in understanding a fact in issue and rests
on a reliable foundation.").
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The judgment is therefore vacated and the case remanded
for further proceedings consistent with this opinion. Costs are
awarded to the appellants.
So ordered.
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