Martínez-Serrano v. Quality Health Services of Puerto Rico, Inc.

United States Court of Appeals
For the First Circuit

No. 08-1127

MILDRED MARTÍNEZ-SERRANO AND ELIZABETH MARTÍNEZ-SERRANO,

Plaintiffs, Appellants,

v.

QUALITY HEALTH SERVICES OF PUERTO RICO, INC.,
d/b/a HOSPITAL SAN CRISTÓBAL,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,
Selya and Lipez, Circuit Judges.

Ramón L. Walker-Merino, with whom Ricardo Ruiz Díaz and Ruiz
& Reyes Law Offices were on brief, for appellants.
Jorge Martínez-Luciano, with whom Emil Rodríguez-Escudero,
Law Offices of Pedro Ortiz Alvárez, PSC, José A. Miranda-Daleccio,
and Miranda Cárdenas & Córdova were on brief, for appellee.

June 8, 2009
 SELYA, Circuit Judge. This is a medical malpractice

action, brought under diversity jurisdiction. See 28 U.S.C.

§ 1332(a)(1). At the close of the plaintiffs' case in chief, the

district court granted a defense motion for judgment as a matter of

law. See Fed. R. Civ. P. 50(a)(1). The plaintiffs appeal,

protesting the exclusion of certain expert testimony and the

granting of the climactic Rule 50 motion. Discerning no error, we

affirm.

I. FACTUAL BACKGROUND

Plaintiffs-appellants Mildred and Elizabeth Martínez-

Serrano are citizens and residents of states within the continental

United States. They are the surviving daughters of José Martínez-

Flores (Martínez), who died while undergoing treatment at Hospital

San Cristóbal (the Hospital), a facility owned and operated by

defendant-appellee Quality Health Services of Puerto Rico.

The events leading up to Martínez's demise are largely

(but not entirely) uncontroversial. On November 4, 2005, Martínez

repaired to the Hospital complaining that he had been vomiting

blood. An emergency room physician examined him and ordered

laboratory tests, an electrocardiogram, intravenous medications and

fluids, and a blood transfusion. The doctor formed a preliminary

diagnosis of gastrointestinal bleeding and ordered Martínez

admitted as a patient of his primary care physician, Dr. Orlando

Torres-Miranda (Dr. Torres). The admission order envisioned a

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consultation by Dr. Nelson Medina-Moreno (Dr. Medina), a

gastroenterologist.

At around 11:00 a.m. the following morning, Dr. Torres

visited the Hospital to examine his patient. Although Martínez

seemed worn-out, he was alert and oriented. Dr. Torres instructed

the Hospital's staff once more to contact Dr. Medina about the

desired consultation. He also ordered a complete blood count, to

be done after a second blood transfusion. Finally, he directed the

staff to notify him immediately when the results of the laboratory

tests were available.

Those results arrived at the Hospital the same day around

3:30 p.m. They indicated a variety of abnormalities. The nurses'

notes reflect several unsuccessful attempts to relay these results

to Dr. Torres. Although there is conflicting evidence on the

point, we take as true Dr. Torres's avowal that the results were

not conveyed to him during Martínez's lifetime.

As the hours went by, the patient's condition

deteriorated. By nightfall, Dr. Torres still had not received any

information about the laboratory tests. With Martínez's condition

worsening, the nursing staff called the case to the attention of a

resident physician. By then, the patient was in cardiorespiratory

arrest. Emergency resuscitation proved unsuccessful and Martínez

died shortly thereafter.

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II. TRAVEL OF THE CASE

In due season, the plaintiffs brought suit for Martínez's

wrongful death in Puerto Rico's federal district court. Their

second amended complaint (for present purposes, the operative

pleading) charged negligence on the part of Dr. Medina (who had

never examined the patient), Dr. Torres, and the Hospital. This

appeal is from a judgment entered in favor of the Hospital.

During the course of pretrial jousting, the plaintiffs

dropped their claims against Dr. Medina. Prior to the start of

trial, the district court excluded two clusters of expert

testimony, one proffered by the plaintiffs and the other by the

Hospital. We focus on the exclusion of testimony proffered by the

plaintiffs.

The facts are as follows (all dates are in 2007 unless

otherwise indicated). The district court entered a case-management

order (the CMO) on March 27. The CMO set the initial scheduling

conference for May 23 and decreed that, on or before that date, the

plaintiffs must identify any expert witnesses whom they planned to

call at the trial and deliver their reports to the defense. Each

such report was to include, among other things, "[a] complete

statement of all opinions to be expressed by the expert and the

basis for those opinions." The CMO warned that "[i]f the report of

the expert is not as described herein, the expert's testimony will

not be permitted on direct examination."

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 The district court convened the initial scheduling

conference on May 23. A continuation of the scheduling conference

took place on July 9. By then, the plaintiffs had designated Dr.

Benito Colón as an expert witness and had furnished his report as

required by the CMO. The report attributed most of the blame for

Martínez's death to Dr. Torres. It did, however, ascribe

negligence to the Hospital for granting Dr. Torres admitting

privileges.

The lower court issued a supplementary case-management

order on July 13; that order listed Dr. Colón's report as part of

the plaintiffs' authorized documentary evidence. In the same

order, the court warned that no other expert reports would be

allowed, except upon written motion and for good cause shown.

At about this time, the plaintiffs reached a settlement

with Dr. Torres. That development left the Hospital, for all

practical purposes, as the sole remaining defendant.1 The Hospital

took Dr. Colón's deposition on August 16. The doctor deviated

dramatically from his report and testified extensively about

negligent acts and omissions by Hospital employees. That line of

reasoning was conspicuously absent from his original report.

A few weeks later, the plaintiffs submitted what they

euphemistically called a "final addendum" to Dr. Colón's report.

1
While the Hospital's insurer was also named as a defendant,
the insurer's presence does not affect our analysis.

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The addendum altered the theory of liability against the Hospital

from negligence in accrediting Dr. Torres (who had by this time

settled with the plaintiffs) to negligence in its handling of

Martínez's care.

The Hospital did not take kindly to Dr. Colón's

tergiversation. It asked the district court to preclude Dr. Colón

from testifying, arguing that this flip-flop effectively introduced

a new line of expert opinion into the case and, thus, transgressed

the terms of the CMO. In the alternative, the Hospital argued that

the newly proffered testimony should be excluded because it failed

to meet minimally acceptable standards of reliability. See Daubert

v. Merrell Dow Pharm., 509 U.S. 579, 593-94 (1993).

Although the plaintiffs objected strenuously, the

district court granted the Hospital's motion to preclude. Somewhat

cryptically, the court stated that Dr. Colón's testimony was

"deemed inadmissible as this expert has lost all credibility before

the Court."

The plaintiffs proceeded to trial without their expert

witness. They premised liability mainly on allegations that

Hospital personnel had failed to (i) contact Dr. Medina as ordered

by both the emergency room physician and Dr. Torres and (ii) notify

Dr. Torres in a timely fashion of the abnormal lab-test results.

Both Dr. Medina and Dr. Torres testified as fact witnesses about

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the failures of communication. The latter also testified about

Martínez's condition.

At the close of the plaintiffs' case in chief, the

Hospital moved for judgment as a matter of law. The district court

granted the motion. See Martínez Serrano v. Quality Health Servs.

of P.R., Inc., No. 06-1454, slip op. at 3 (D.P.R. Nov. 28, 2007)

(unpublished). This timely appeal ensued.

III. ANALYSIS

On appeal, the plaintiffs maintain that the district

court (i) abused its discretion in precluding Dr. Colón's expert

testimony and (ii) erred in taking the case from the jury. We

address these points separately.

A. Expert Testimony.

Before considering the plaintiffs' preclusion claim, we

must deal with a procedural argument: the Hospital asserts that

this court lacks jurisdiction to entertain this preclusion claim

because the plaintiffs failed to designate the exclusionary order

in their notice of appeal. This assertion lacks merit.

To be sure, a notice of appeal ordinarily must designate

the orders or judgments to which the appeal is directed. See Fed.

R. App. P. 3(c)(1)(B). But this principle is not ironclad. One

recognized exception concerns notices of appeal that designate the

final judgment in a case as the appeal's object. The case law is

consentient that such a notice of appeal is deemed to encompass not

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only the final judgment but also all interlocutory orders that

merge into it. See John's Insul., Inc. v. L. Addison & Assocs.,

Inc., 156 F.3d 101, 105 (1st Cir. 1998). That is the situation

here; the preclusionary order challenged by the plaintiffs is of

the type and kind that merges into the final judgment. See, e.g.,

United States ex rel. Zembowski v. DeRobertis, 771 F.2d 1057, 1064-

65 (7th Cir. 1985); see also 16A Wright, Miller, Cooper & Struve,

Federal Practice & Procedure § 3949.4, at 100 n.32 (4th ed. 2008)

(collecting cases). Consequently, we have jurisdiction to resolve

this assignment of error.

This brings us to the substance of the plaintiffs' claim.

It is a bedrock principle that federal trial courts possess wide-

ranging authority to manage the conduct of litigation and, as a

necessary corollary of that authority, to sanction litigants who

fail to comply with court-imposed deadlines. See Tower Ventures,

Inc. v. City of Westfield, 296 F.3d 43, 45-46 (1st Cir. 2002). And

when a failure of compliance occurs, "the court may choose from a

broad universe of possible sanctions." Id. at 46.

The Civil Rules contain a number of provisions that are

designed to assist trial courts in handling the peculiar subset of

discovery problems associated with the selection, disclosure, and

use of expert witnesses. See, e.g., Fed. R. Civ. P. 16(b),

26(a)(2); see also id. 37(b)(2)(B). This framework permits

district courts, among other things, to set temporal deadlines for

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the identification of experts and the disclosure of their opinions.

See Fed. R. Civ. P. 26(a)(2)(C); Boston Gas Co. v. Century Indem.

Co., 529 F.3d 8, 18 (1st Cir. 2008).

Where, as here, a party aspires to present expert

testimony but does not adhere to the district court's temporal

benchmarks, the court has a range of options. One of those options

is preclusion — and if the court deems that option appropriate, we

review its determination solely for abuse of discretion. Macaulay

v. Anas, 321 F.3d 45, 51 (1st Cir. 2003).

This standard of review obtains both as to the finding

that a discovery violation occurred and as to the appropriateness

of the sanction selected. See Thibeault v. Square D Co., 960 F.2d

239, 243 (1st Cir. 1992). In the last analysis, then, a party

striving to overturn a trial court's exercise of discretion with

respect to such matters faces a steep, uphill climb. See Gagnon v.

Teledyne Princeton, Inc., 437 F.3d 188, 191 (1st Cir. 2006);

Macaulay, 321 F.3d at 51.

So it is here. The record reveals with conspicuous

clarity that the plaintiffs attempted to reformulate their theory

of liability (and, thus, dramatically shift the focus of their

expert's opinion testimony) once they settled with Dr. Torres.

That reformulation transpired after the time for filing expert

reports had passed. The new allegations of negligence were not

based on freshly discovered evidence, and the plaintiffs have not

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advanced any plausible justification for the belated emergence of

these allegations. The shift amounted to the propagation of a

brand-new theory, not merely a refinement of an existing theory.

The prejudice to the Hospital was palpable. Given those

circumstances, we think that preclusion was well within the ambit

of the district court's discretion.2 See, e.g., Macaulay, 321 F.3d

at 52.

In an effort to blunt the force of this reasoning, the

plaintiffs seize upon the district court's statement that the

author of the precluded testimony had "lost all credibility" in the

eyes of the court. Building on this foundation, they suggest that

this statement reveals a violation of the abecedarian tenet that a

judge presiding over a jury trial does not have the right to

exclude testimony merely because he finds it unpersuasive. See,

e.g., Blake v. Pellegrino, 329 F.3d 43, 47 (1st Cir. 2003). That

tenet has no bearing here.

Admittedly, the district court's rationale for preclusion

was not crisply expressed. But "a reviewing court sometimes may be

able to infer the district court's reasoning from the record as a

whole." Torres-Rivera v. O'Neill-Cancel, 524 F.3d 331, 337 (1st

2
We add, moreover, that prior to excluding the plaintiffs'
expert testimony, the court had excluded expert testimony proffered
out of time by the Hospital. The aphorism that what is sauce for
the goose is sauce for the gander comes readily to mind. See,
e.g., In Re D.C. Sullivan Co., 843 F.2d 596, 599 (1st Cir. 1988).

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Cir. 2008). The more obvious the reasons for a choice, the less

that needs to be explained. See United States v. Navedo-

Concepción, 450 F.3d 54, 57 (1st Cir. 2006).

In this instance, the Hospital presented two grounds for

preclusion: untimeliness and failure to cross the Daubert

threshold. Of these two grounds, untimeliness was the more obvious

and the more cogent ground. After all, the plaintiffs had flouted

a clearly expressed discovery deadline without any apparent

justification and under circumstances redolent of strategic

behavior.

Even though the district court's statement is ambiguous,

we think it is highly unlikely that the court bypassed this solid

ground sub silentio and went out of its way to base its ruling on

a ground not presented. Viewing the court's order in the full

context of the arguments contemporaneously made and the record as

a whole, we are confident that the court based its preclusionary

order on the discovery violation.

This rationale is especially compelling because what the

court said fits neatly with it. Dr. Colón never attempted to

explain his change in direction. Given the convenient timing of

that change, however, the district court may well have intended the

quoted language as a rejection of what it regarded as an effort by

the doctor to shape his testimony to fit the plaintiffs' new

priorities.

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 That ends this aspect of the matter. We hold, without

serious question, that the order of preclusion constituted a

fitting sanction for the discovery violation. Consequently, there

was no abuse of the trial court's considerable discretion.

B. Judgment as a Matter of Law.

A trial court confronted with a motion for judgment as a

matter of law must scrutinize the evidence and the inferences

reasonably extractable therefrom in the light most hospitable to

the nonmovant.3 Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir.

1987).

In conducting that perscrutation, the court must refrain

from differential factfinding; that is, the court must not pass

upon the credibility of the witnesses, resolve evidentiary

conflicts, or engage in a comparative weighing of the proof. Id.

A motion for judgment as a matter of law may be granted only if the

evidence, viewed from this perspective, adumbrates a result as to

which reasonable minds could not differ. Veranda Beach Club Ltd.

P'ship v. W. Sur. Co., 936 F.2d 1364, 1383 (1st Cir. 1991); Hubbard

v. Faros Fisheries, Inc., 626 F.2d 196, 199 (1st Cir. 1980).

3
This standard obtains whether the motion is made at the
close of the plaintiff's case in chief or at the close of all the
evidence. Chaney v. City of Orlando, 483 F.3d 1221, 1227 (11th
Cir. 2007).

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 When an appellant seeks to set aside a judgment entered

following the allowance of such a motion, the court of appeals is

constrained in precisely the same fashion as the district court.

Because the central question on appeal revolves around the

sufficiency of the evidence, appellate review is plenary. Salve

Regina Coll. v. Russell, 499 U.S. 225, 231-32 (1991); Jordan-Milton

Mach., Inc. v. F/V Teresa Marie, II, 978 F.2d 32, 34 (1st Cir.

1992).

It is important to recall that this is a diversity

action. Thus, the substantive law of the forum state controls.

See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). For this

purpose, Puerto Rico is treated as the functional equivalent of a

state. See, e.g., Rolón-Alvarado v. Mun'y of San Juan, 1 F.3d 74,

77 (1st Cir. 1993).

The rule of decision that applies here is fault-based:

Puerto Rico law provides in pertinent part that "[a] person who by

an act or omission causes damage to another through fault or

negligence shall be obliged to repair the damage so done." P.R.

Laws Ann. tit. 31, § 5141 (1991). Within this rubric, three

elements coalesce to make up a prima facie case for medical

malpractice (a species of professional negligence). Specifically,

a plaintiff must establish the duty owed, the occurrence of an act

or omission constituting a breach of that duty, and a sufficient

causal nexus between the breach and some resultant harm. See Lama

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v. Borras, 16 F.3d 473, 478 (1st Cir. 1994); Rolón-Alvarado, 1 F.3d

at 77.

Puerto Rico holds health-care providers to a

commonwealth-wide standard of care. See Oliveros v. Abreu, 101

P.R. Dec. 209, 226-27, 1 P.R. Offic. Trans. 293, 313 (1973).

Accordingly, a health-care provider has "a duty to use the same

degree of expertise as could reasonably be expected of a typically

competent practitioner in the identical specialty under the same or

similar circumstances, regardless of regional variations in

professional acumen or level of care." Rolón-Alvarado, 1 F.3d at

77-78. A plaintiff bent on establishing a breach of this duty of

care ordinarily must adduce expert testimony not only to delineate

the minimally acceptable standard but also to show a failure to

meet that standard. Id. at 78.

Against this backdrop, we turn to the particulars of the

case at hand. With Dr. Colón's testimony barred, the plaintiffs

were unable to present any expert opinion sufficient to establish

either the Hospital's duty of care or a breach of the duty owed.

In an effort to trivialize this shortcoming, the

plaintiffs draw a distinction between doctors and hospitals with

respect to the duty owed in medical malpractice cases: they posit

that the Puerto Rico Supreme Court's decision in Oliveros

established a duty of care that applies only to malpractice claims

against physicians and that, as to hospitals, the duty owed is that

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of a reasonably prudent person (the standard that typically applies

in negligence cases outside the realm of medical malpractice). The

evidence presented at trial, they assert, was sufficient, even

without expert opinion testimony, to show a breach of the latter

duty.

That distinction limned by the plaintiffs is of dubious

validity. See, e.g., Torres-Lazarini v. United States, 523 F.3d

69, 72 (1st Cir. 2008) (defining the duty owed under Puerto Rico

law in a malpractice case against a hospital in terms of "the

minimum standard of professional knowledge and skill required in

the relevant circumstances"); Marcano Rivera v. Turabo Med. Ctr.

P'ship, 415 F.3d 162, 167-68 (1st Cir. 2006) (same); Rolón-

Alvarado, 1 F.3d at 77-78 (same). In the end, however, we need not

decide whether there is any legitimacy to the claim of differing

duties. Assuming for argument's sake that the duty owed by a

hospital is as the plaintiffs say and that the evidence of breach

sufficed to reach the jury, the plaintiffs' appeal nevertheless

fails. We explain briefly.

As we have said, causation is an essential element of a

claim for medical malpractice under Puerto Rico law. It was the

plaintiffs' burden to furnish proof of causation. See Cortés-

Irizarry v. Corporación Insular de Seguros, 111 F.3d 184, 190 (1st

Cir. 1997) ("Notwithstanding proof of both duty and breach, a

plaintiff also must offer competent evidence of causation in a

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medical malpractice case."). To make out causation under Puerto

Rico law, a plaintiff must prove, by a fair preponderance of the

evidence, that the negligent act or omission was the factor that

most likely caused the harm. Lama, 16 F.3d at 478.

The evidence here does not pass that test. We have

recently ruled — and today reaffirm — that in a medical malpractice

case under Puerto Rico law "a factfinder normally cannot find

causation without the assistance of expert testimony." Rojas-

Ithier v. Sociedad Española de Auxilio Mutuo y Beneficiencia, 394

F.3d 40, 43 (1st Cir. 2005). This is so because medical

malpractice is a field in which the issues tend to be

scientifically driven and more nuanced than in most tort cases.4

See id.

Here, the plaintiffs failed to furnish expert opinion

testimony about what acts or omissions (if any) caused Martínez's

death. What is more, our review of the record reveals no other

evidence that might suffice to establish this essential element of

the plaintiffs' case.

4
Let us be perfectly clear. The absence of expert testimony
is not necessarily dispositive in all medical malpractice cases
brought under Puerto Rico law. See Rolón-Alvarado, 1 F.3d at 79
(recognizing a narrow exception "where common knowledge and
experience are all that is necessary to comprehend a defendant's
negligence"). The case at hand, however, does not fall within the
narrow band of possible exceptions to the general rule requiring
expert testimony. Martínez's condition was complicated, and lay
knowledge can tell us only so much about why he died.

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 The plaintiffs demur. They offer three reasons why Dr.

Torres's trial testimony supplied the missing link. First, they

point to his testimony that the Hospital's staff never informed him

of certain test results5 and never arranged for the requested

consultation with Dr. Medina. Second, they point to Dr. Torres's

testimony that his current assessment of the cause of death is

different than that which he inscribed on the death certificate.

Third, they point to his testimony anent the treatment that he

would have ordered had he received the test results sooner.

Whether viewed singly or in combination, these three

pieces of evidence do not get the plaintiffs very far. Even with

these pieces of evidence, there is no sufficient proof of

causation.

Dr. Torres's testimony as to the lack of notice vis-à-vis

the test results and the failure to arrange for a

gastroenterological consult goes to the issue of breach, not to the

issue of causation. The existence of a jury question as to breach,

without more, is not enough to foreclose the entry of judgment as

a matter of law in a medical malpractice case. See id. at 44.

Similarly, the doctor's evolving views of the cause of

death do not forge the necessary casual nexus. Dr. Torres first

concluded that Martínez's death resulted from "coronary artery

5
That testimony is disputed but, for purposes of reviewing a
judgment as a matter of law, we assume the accuracy of Dr. Torres's
account.

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disease, diabetes mellitus, chronic renal insufficiency, and

hypertension." At trial, he opined that the cause of death was

"pneumonia by aspiration." This dichotomy, in and of itself, tells

us very little about whether negligence caused death; neither of

those opinions, without further explication by an expert, informs

the trier of fact in any meaningful way about causation in the tort

sense. And, given Martínez's preexisting conditions, determining

which of these opinions is correct would shed no light on whether

the patient's demise would have occurred regardless of what Hospital

staff may or may not have done.

Dr. Torres's testimony that had he received the test

results more celeritously he would have initiated a particular

treatment regime does not fill the void. This testimony limns what

treatment might have been administered but for the alleged

negligence; it does not speak to the different question of whether

that treatment regime, if promptly administered, would have yielded

a more salubrious outcome (that is, whether it would have saved

Martínez's life).

The short of it is that, as the district court determined,

the record contains no significantly probative evidence on the issue

of causation. See Martínez Serrano, slip op. at 3. Without such

an evidentiary predicate, the jury had no legally acceptable basis

for finding the Hospital liable for Martínez's death. It follows

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inexorably that there was no error in the allowance of the

Hospital's mid-trial motion for judgment as a matter of law.

IV. CONCLUSION

We need go no further. Martínez's death was tragic, but

there is no cognizable basis for holding the Hospital legally

responsible for it. Accordingly, we uphold both the challenged

preclusionary order and the lower court's decision to take the case

from the jury.

Affirmed.

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