Arrieta v. Hosp. Del Maestro, Inc.
| Decision Date | 28 August 2019 |
| Docket Number | CIVIL NO.: 15-3114 (MEL) |
| Parties | DAMARIS SANTOS ARRIETA, et al. Plaintiff, v. HOSPITAL DEL MAESTRO, INC. Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
On February 29, 2016, Damaris Santos Arrieta and Gustavo Querales Salcedo, in representation of their minor son GQS, filed an amended complaint against Hospital Del Maestro, Inc. ("HDM") and Dr. Félix Villar. ECF No. 19. The complaint alleges, inter alia, that Ms. Santos was the patient of Dr. Villar from whom she received prenatal care, and that Dr. Villar and HDM departed from the applicable standard of medical care during the prenatal, delivery, and post-delivery phases of GQS.
After noting that plaintiff had already announced and produced their medical experts and their reports, on August 23, 2016, the court set various deadlines, including, among others: September 26, 2016 for plaintiff to produce the expert report and expert witness disclosures of a life care planner; October 28, 2016 for defendants to produce their expert reports and expert witness disclosures; December 2, 2016 for the discovery phase of the case to conclude; and January 17, 2017 for the filing of dispositive motions. ECF No. 31. This schedule was modified to allow the defendants until December 30, 2016 to produce life care planner Dr. Richard Katz's expert report, until February 14, 2017 for motions for summary judgment and motions to exclude expert testimony (or Daubert motions) to be filed, and until April 14, 2017, for the joint proposed pretrial order to be filed. ECF No. 35. The schedule was once again modified, upon the parties' request, to allow Dr. Richard Katz until March 27, 2017, to produce his expert report, until April 14, 2017 for the filing of motions for summary judgment, and until April 28, 2017 to file the joint proposed pretrial order. ECF No. 41.
No motions for summary judgment were filed, but on May 1, 2017, the parties filed the joint proposed pretrial memorandum. ECF No. 42. A pretrial and settlement conference was held on June 27, 2017, allowing until August 30, 2017 for the filing of motions in limine. ECF No. 47. Nobody at the pretrial and settlement conference mentioned that they intended to file a Daubert motion or a motion to exclude expert testimony. The deadline to do so expired on February 14, 2017. In fact, no such motion was even filed by the summary judgment motion deadline of April 14, 2017.
On August 30, 2017, defendants filed what they titled as a "Motion in Limine to Partially Exclude all Testimony at Trial by Dr. Carolyn Crawford as an Expert in the Particular Area of Autism Spectrum Disorders and/or Request for a Daubert Evidentiary Hearing." ECF No. 57. Nowhere in this motion did defendants seek to preclude Dr. Crawford from testifying about all kinds of brain damage or injury; it was focused on autism. Also on said date defendants filed a "Motion in Limine to Preclude Causation Opinion Regarding Autism Spectrum Disorder or in the Alternative, Request for a Daubert Hearing." ECF No. 59. Once again, this motion focused on "autism spectrum disorder"; it did not seek to preclude evidence of other types of brain injury or damage.
On August 30, 2017, defendants filed another motion, which they titled "Motion in Limine to Exclude Testimony of Dr. Carolyn Crawford as to All Opinions not Included in Her DepositionTestimony." ECF No. 58. This motion made two requests that were not necessarily consistent with one another. First, defendants moved "for an order that Dr. Carolyn Crawford only be permitted to testify as to those opinions and conclusions testified to in her deposition, taken on September 26, 2016." Id. at ¶2 (emphasis added). In another portion of the motion, however, defendants requested that Dr. Crawford "be precluded to testify with regards to any opinions not included in her report and deposition testimony...." Id. at ¶4. Dr. Crawford's expert report does not make any explicit mention of brain injury or brain damage. ECF No. 57-3. At her deposition, however, she did testify about brain injury or damage on various occasions. ECF No. 57-4, at 69, 81, 83. The court denied this motion without prejudice, noting the following:
Co-defendants Felix Villar and Hospital del Maestro, Inc. fail to specify which are the "new opinions" from Dr. Carolyn Crawford that they wish to have excluded at trial. Furthermore, the motion is ambiguous as to whether said defendants are seeking to exclude those portions of Dr. Crawford's deposition testimony that go beyond the scope of her expert report, or only any trial testimony that goes beyond her deposition testimony, regardless of whether said deposition testimony exceeded the matters addressed in her expert report. At a minimum, this motion should have indicated with specificity: (1) which portions of her deposition testimony (with citations to transcript page numbers and lines) defendants wish to strike on the basis of Dr. Crawford exceeding the scope of her expert report; (2) which matters plaintiffs have announced in the joint proposed pretrial order (with citation to docket number, page number, and section) with respect to Dr. Crawford's testimony at trial that exceed the scope of her expert report; (3) why plaintiff's alleged failure to comply with FRCP 26(a)(2)(B) was neither substantially justified nor harmless; (4) why lesser sanctions than preclusion are not viable; (5) and whether defendants' expert reports were produced before or after Dr. Crawford was deposed. SeeGay v. Stonebridge Life Ins., 660 F.3d 58, 62 (1st Cir. 2011).
ECF No. 87. Defendants never filed a new motion in compliance with the court's directives.
Defendants filed yet another motion on August 30, 2017, requesting that that the following terms not be mentioned at trial: "hypoxia-ischemia, seizures, febrile seizures or cerebral palsy." ECF No. 60. Nowhere in this motion did defendants request that the terms "brain damage" or "brain injury" not be mentioned at trial. Plaintiff filed a response to all these motions in limine onNovember 13, 2017. ECF No. 71. On November 28, 2017, defendants replied to this opposition, and for the first time requested that use of the term "brain injury" not be allowed at trial, a request that had not been made in their original motion. ECF No. 74 at 9, 10.1
A Daubert hearing was held on June 19, 2018. ECF No. 99. As a result of this hearing, the court reached the following conclusions: "Since Dr. Crawford's expert report is devoid of information in regards to autism, autism spectrum disorder, or autistic like behavior, she is precluded from testifying in regards to her opinion about plaintiff's autism, autism spectrum disorder, or autism like behavior at trial." ECF No. 102, at ¶4. In reaching this decision, the court added:
Plaintiff will not be deeply prejudiced by this decision, as at the hearing Dr. Crawford noted how Plaintiff does not only have a history of autistic like behaviors but
Id. at 5. Defendants did not request reconsideration of the court's decision, even though brain injury is not mentioned in Dr. Crawford's expert report, although it was mentioned to some degree at her deposition. After all, their motions in limine requesting a Daubert hearing (ECF Nos. 57, 59) were limited in scope to the condition of autism.
Further, the court also issued an order precluding the use of the term "cerebral palsy" at trial, but allowing the mention of "hypoxia-ischemia, seizure, and febrile seizures." ECF No. 103. This ruling was based on defendants' original motion (ECF No. 60) which did not request the preclusion of the term "brain injury," and not on their reply, which did mention this term. ECF No. 74. Defendants never requested reconsideration of the court's order, which made no mention of the term "brain injury."
On July 26, 2018, defendants filed yet another motion in limine to preclude the testimony of expert witness Gerri Pennachio, a vocational rehabilitation consultant retained by plaintiff. ECF No. 109. Plaintiff filed a response in opposition to this motion on July 31, 2018. ECF No. 111. On August 6, 2018, the court, while imposing sanctions on defendants due to the untimeliness of their motion, granted the motion in limine and precluded Ms. Pennachio from testifying at trial, stating, among other reasons, the following:
A plain reading of Ms. Pennachio's life care plan (ECF No. 109-2) shows that there is no readily apparent way in which to subdivide the plan into expenses related to autism and expenses not related to autism. Plaintiff's condition of autism is an integral part of the life care plan and cannot be simply extracted. In fact, when considering the pages of the report, the word "autism" appears on twenty of the twenty-two pages. See ECF No. 109-2. Some examples of the use of the term "autism" in the report are: "The Patient is being discharged at parent request since parent is putting child in a school for children with Autism." Id. at 2. "He is attending the Academy for Autism, attending from 9:00 a.m. to 3:00 p.m. daily, August to June." Id. at 4. In regards to behavior therapist, "[a]ccording to the American Academy of Pediatrics and the National Research council, behavior and communication approaches help children with autism and provide structure, direction, and organization." Id. at 10....
To continue reading
Request your trial