Cortes-Irizarry v. Corporacion Insular De Seguros

• Decision Date: 03 March 1997
• Docket Number: P,No. 96-1894,CORTES-IRIZARR,96-1894
• Citation: 111 F.3d 184
• Parties: 47 Fed. R. Evid. Serv. 22 Rafaelalaintiff, Appellant, v. CORPORACIN INSULAR DE SEGUROS, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 184

111 F.3d 184

47 Fed. R. Evid. Serv. 22

Rafaela CORTES-IRIZARRY, Plaintiff, Appellant, v. CORPORACIN INSULAR DE SEGUROS, et al., Defendants, Appellees.

No. 96-1894.

United States Court of Appeals First Circuit.

Heard March 3, 1997.

Decided April 16, 1997.

David Efron, San Juan, PR, with whom Kevin G. Little, Rio Piedras, PR, was on brief, for Plaintiff, Appellant.

Elisa M. Figueroa Baez, San Juan, PR, with whom Law Offices of Sigrid Lopez Gonzalez, Hato Rey, PR, was on brief, for Defendants, Appellees.

Before TORRUELLA, Chief Judge, COFFIN, Senior Circuit Judge, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

Plaintiff-appellant Rafaela Cortes-Irizarry (Cortes), suing on behalf of her minor child, Rafael Jose Muniz Cortes (Jose), challenges an order granting summary judgment to Corporacin Insular de Seguros (CIS) and its insured, Juan Ramn Gonzalez Aristud (Dr. Gonzalez), in a medical malpractice action. See Irizarry v. CIS, 928 F.Supp. 141, 147-48 (D.P.R.1996). We vacate the order and remand for trial.

I. BACKGROUND

Although the accepted summary judgment protocol calls for us to cast the facts in the light most complimentary to the plaintiff's position, consistent with record support, see, e.g., Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990), we temper that protocol here to the extent that we set off, as point and counterpoint, conflicting evidence where the clash helps to illuminate pertinent legal issues. For simplicity's sake we omit any further reference to CIS and treat its insured as if he were the sole defendant.

Dr. Gonzalez, a specialist in obstetrics, provided prenatal care to Cortes after she became pregnant with Jose. On December 15, 1979, Cortes related to Dr. Gonzalez that her last menstrual cycle prior to conception began on November 2 and lasted only two days. The length of her immediately preceding menses was three days, and her periods typically had lasted two or three days during the year prior to her current pregnancy. Based on this data, Dr. Gonzalez calculated Cortes' estimated delivery date (EDD) to be August 9, 1980. He delivered Jose by cesarean section on July 30, 1980. The newborn weighed eight pounds, eight and three-quarter ounces (two pounds more than Cortes' first child) and exhibited no fetal distress.

According to the defendant's computations, Cortes was in her thirty-ninth week of pregnancy when the baby arrived. This calculation forms the nub of the case. The plaintiff's theory is that Dr. Gonzalez misfigured the baby's fetal age and, consequently, allowed the pregnancy to continue beyond forty-two weeks, thus bringing into play a risk factor known as "post-datism" or "post-maturity." A post-dated fetus is at risk of oxygen deprivation during its extended stay in the mother's womb, and brain damage is a predictable result. While Jose, at birth, displayed no detectable symptoms suggesting a post-dated delivery, the circumstances of the delivery revealed some indications of potential perinatal difficulties; for instance, the cesarean section took twenty-one minutes (roughly twice as long as the norm), and, on one view of the proof, a tracheal catheter was used to intubate the newborn. ¹

Time resolved these mixed signals. Jose showed signs of neurologic abnormality at three months and was diagnosed with impaired motor development and hearing loss at fourteen months. His condition worsened as the years passed. As an adolescent, he was diagnosed as severely brain damaged, epileptic, and profoundly deaf. At that juncture, Cortes, then a citizen of Florida, sued Dr. Gonzalez in Puerto Rico's federal district court, see 28 U.S.C. § 1332(a) (diversity jurisdiction), alleging that the physician's negligence caused her son's infirmities.

Cortes' case rests primarily on the opinions of two experts. An obstetrician, Dr. Bernard Nathanson, opined that a competent obstetrician, rather than relying upon a reported two-day menstrual period to calculate a gravid woman's EDD, would have launched a more detailed gynecologic investigation. Had Dr. Gonzalez done so, the witness stated, he would have discovered that Cortes' actual EDD was July 9, 1980, and he would have recognized that a substantial risk of post-datism arose when her pregnancy extended past the EDD (a risk which he presumably could have negated by performing the cesarean section earlier). In reaching these conclusions, Dr. Nathanson stressed the unusual brevity of the reported period (especially as contrasted with Cortes' previous menses) and Dr. Gonzalez' failure to confirm the EDD by performing various tests which the witness stated were available in 1979-1980 (e.g., a B-scan ultrasound examination). In Dr. Nathanson's opinion, the pregnancy was post-dated, and the defendant's failure to realize it and take corrective action violated the prevailing standard of care.

Dr. Nathanson also disputed Dr. Gonzalez' assertion that he in fact performed a manual pelvic examination at Cortes' initial appointment and subsequently measured her uterus throughout her pregnancy to corroborate the EDD. Dr. Nathanson saw no evidence that these steps had been taken. Moreover, Dr. Gonzalez' office record did not mention either the periodic uterine measurements or their results. Although some of Cortes' prenatal charts apparently had been lost, Dr. Nathanson stated that these data "are so vital that they should be in [Dr. Gonzalez'] record in any case had he done them."

The plaintiff's second expert, Dr. Allan Hausknecht, a neurologist, diagnosed Jose as suffering from Lennox Gasteault Syndrome (LGS). This neurological condition is caused roughly fifty percent of the time by perinatal brain damage (resulting from a lack of sufficient oxygen to the fetal brain). Doctor Hausknecht stated that, in his experience, this percentage increases sharply when, as in this instance, no evidence of any other known cause exists. Noting that the gradual development of Jose's condition was characteristic of a post-mature fetus, Dr. Hausknecht rendered an opinion that Jose's brain damage resulted from the post-datism which Dr. Nathanson had identified. This opinion was bolstered in some degree by Dr. Nathanson's statement that, while some post-dated infants will show immediate signs of placental senescence, such as meconium-stained amniotic fluid or peeling of the skin (Jose had neither), many others will appear asymptomatic at birth yet manifest the effects of post-datism at a later time.

To be sure, the plaintiff's evidence was hotly contested. The defendant claimed that he had figured the EDD accurately and that many of the tests suggested by Dr. Nathanson were unnecessary, or impracticable, or both. He also presented experts who offered an alternative theory of causation: intrauterine cytomegalovirus (CMV) infection, a rare condition which occurs in 0.2 to 2.2 percent of all live births. The results of blood tests performed on Jose at age fifteen revealed previous or latent CMV infection, but did not indicate whether the infection had been contracted in utero. This is a significant omission because, while infants who suffer from CMV may be asymptomatic at birth and thereafter develop mental retardation or deafness, CMV can be transmitted in various ways and affects most individuals during their lifetimes.

II. THE SUMMARY JUDGMENT STANDARD

A court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We have expounded this standard and its particulars in a symphony of cases, see, e.g., McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995) (collecting cases), and we refrain from rehearsing this jurisprudential chorus here. For our purposes, it suffices briefly to describe the rule's operation.

The objective of summary judgment "is to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required." Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir.1992). To defeat a motion for summary judgment, the nonmoving party must demonstrate the existence of a trialworthy issue as to some material fact. See Coyne v. Taber Partners I, 53 F.3d 454, 457 (1st Cir.1995). A fact is "material" if it potentially could affect the suit's outcome. See Garside, 895 F.2d at 48. An issue concerning such a fact is "genuine" if a reasonable factfinder, examining the evidence and drawing all reasonable inferences helpful to the party resisting summary judgment, could resolve the dispute in that party's favor. See National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.), cert. denied, 515 U.S. 1103, 115 S.Ct. 2247, 132 L.Ed.2d 255 (1995).

Exercising de novo review, see Coyne, 53 F.3d at 457, we hold that the record in this case presents triable issues as to whether Dr. Gonzalez violated his duty of care, and, if so, whether his actions caused Jose's injuries. Consequently, the district court erred in granting the motion for brevis disposition.

III. ANALYSIS

We first survey the junction where summary judgment principles and the standards governing the admissibility of expert scientific evidence intersect. We then evaluate the lower court's ruling.

A.

The defendant asserts on appeal that the entry of judgment should be affirmed because the district court had the power to exclude the plaintiff's expert evidence pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and that, without such evidence, the plaintiff has no case. Cortes parries this thrust by contending that Daubert does not apply at the summary judgment stage. The truth lies somewhere in between.

The Daubert Court formulated a regime for use in ascertaining the admissibility of expert...