Laplace-Bayard v. Batlle, 01-1109.

Citation295 F.3d 157
Decision Date16 July 2002
Docket NumberNo. 01-1109.,01-1109.
PartiesLily LAPLACE-BAYARD, ET AL., Plaintiffs, Appellants, v. Dr. Francisco BATLLE, Defendant, Appellee.
CourtU.S. Court of Appeals — First Circuit

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.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.

This is an appeal from a no-liability jury verdict in a medical malpractice case. Plaintiffs-appellantsLily 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 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 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 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.

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.

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 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...

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