Vargas-Alicea v. Cont'l Cas. Co.
| Decision Date | 31 March 2019 |
| Docket Number | CIVIL NO. 15-1941 (PAD) |
| Parties | SANDRA CRUZ VARGAS-ALICEA, et al., Plaintiffs, v. CONTINENTAL CASUALTY COMPANY, et al., Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Plaintiffs are relatives of the deceased, who fell to the floor from a chair following a dialysis session in a BMA-Ponce clinic in Ponce, Puerto Rico, after which he was taken to a hospital, underwent brain surgery for a subdural hematoma, and passed away three (3) days later. They sued BMA-Ponce and its insurer, Continental Casualty Company, under Puerto Rico law for damages arising out of the incident (Docket No. 2).1 Before the court are defendants' "Motion to Exclude Certain Testimony from Plaintiff's Expert Witness" (Docket No. 150); "Motion In Limine to Preclude Certain Statements from Plaintiffs, Plaintiffs' Counsel, and Plaintiffs' Witnesses" (Docket No. 151), and "Motion In Limine to Exclude Photographs" (Docket No. 152). Plaintiffs opposed the motions (Docket Nos. 154 and 160).
The court thoroughly examined the parties' submissions and supporting authorities in light of the record and heard extensive arguments on the issues raised (Docket No. 167 at p. 2). For the reasons explained below, the motion to exclude testimony (Docket No. 150) is GRANTED, themotion to preclude statements (Docket No. 151) is GRANTED IN PART and the motion to exclude photographs (Docket No. 152) is DENIED WITHOUT PREJUDICE.
Plaintiffs retained Dr. Julio Benabe as an expert witness. Dr. Benabe prepared a report and was deposed. Defendants assert Dr. Benabe's testimony should be limited to the matters contained in the report, and that any testimony regarding opinions or subjects not included or mentioned in his expert report, even if discussed during the deposition, should be excluded from trial as a violation of Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure (Docket No. 150 at p. 1). To this end, they state Dr. Benabe should not be allowed to testify as an expert on the applicable standard of care, the fall prevention measures that plaintiffs allege BMA-Ponce should have taken, a paper that the nurse attending the deceased discarded on June 3, 2013, the treatment the deceased received in the hospital, the cause of death and its alleged causal relation to the fall. Id.
To prevail in the case, plaintiffs bear the burden of establishing by a preponderance of the evidence: (1) the duty that as a health-care facility, BMA-Ponce owed to the deceased; (2) an act or omission transgressing that duty; and (3) a sufficient causal nexus between the breach and the harm. See, Rivera v. Turabo Medical Center Partnership, 415 F.3d 162, 167 (1st Cir. 2005)(identifying elements of action). Along this line, Puerto Rico holds health care professionals to a national standard of care. See, Cortes-Irizarry v. Corporación Insular de Seguros, 111 F.3d 184, 190 (1st Cir. 1997)( standard). Given that medical knowledge is critical to demonstrating the parameters of a health-care provider's duty, the minimum standard of acceptable care is almost always a matter of informed opinion. See, Rolón-Alvarado v. San Juan, 1 F.3d 74, 78 (1st Cir. 1993)(so recognizing).
Dr. Benabe's report fails to identify the national standard of care, stating instead what BMA-Ponce should have done (Docket No. 53-8 at p. 4). The mere fact that an expert might have selected a particular approach or method of treatment does not, without more, establish that a different approach or method, even if unsuccessful, fell short of the duty owed. See, Rolón-Alvarado, 1 F.3d at 78 (articulating proposition); Meek v. Shepard, 484 A.2d 579, 581 (D.C. 1984)( testimony of expert who stated what he would do under similar circumstances rather than describe national standard of care by which the defendant's actions could be measured). Professional standards require normative judgments, not merely proof that a better way to treat a particular patient could have been devised. See, Rolón-Alvarado, 1 F.3d at 78 (so noting).
Within this framework, the expert must establish that the standard of care he identifies or refers to is followed nationally through: (1) discussion of the described course of treatment among practitioners outside of Puerto Rico such as at conventions, meetings or seminars; (2) presentation of relevant data like published protocols and standards; or (3) reliance on peer-reviewed literature (i.e. journals, textbooks, and treatises). See, Porter v. McHug, 850 F.Supp.2d 264, 268 (D.D.C. 2012)(discussing topic); Hawes v. Chua, 769 A.2d 797, 806-808 (D.C. 2001)(examining proposition and collecting cases). Dr. Benabe's report is silent on these parameters.2 And while his report mentions publications in a footnote, it does not relate the content of those publications to whether the relevant course of treatment is followed nationally as required by law. See, Baker v. Chevron USA, 680 F.Supp.2d 865, 878 (S.D. Ohio 2010)(concluding that expert report wasinadequate in part because expert made no effort to connect the medical literature to expert's opinions).3
Plaintiffs allege that BMA-Ponce failed to take sufficient fall prevention measures (Docket No. 25 at pp. 5-6). Defendants contend Dr. Benabe's report does not explain what those measures were or how they reflect a national standard of care (Docket No.150 at pp. 6-7). The report states the deceased should not have been allowed to stand and walk without assistance from dialysis personnel until it was assured and documented that his blood pressures were stable and he was able to ambulate without assistance (Docket No. 53-8 at p. 4). Even though the statement is sufficiently precise, it does not link the expert's opinion to a national standard of care. An expert's educational and professional background is insufficient to demonstrate that he is familiar with thatstandard.4 See, Strickland, 899 A.2d at 774 ().5
Defendants point out additional omissions on Dr. Benabe's report. First, after the decedent fell, Nurse Ramos wrote down some notes about the deceased's post-fall condition, which she later included in a written statement. Once she copied the information in her written statement, she discarded the paper she wrote the notes on. But Dr. Benabe's report does not mention or discuss the discarded paper (Docket No. 150 at p. 8). Second, the report lacks an opinion as to the propriety of treatment received by the deceased in the hospital, even though it includes an overview of what happened to him after he was taken from BMA-Ponce's facility to the hospital (Docket No. 53-8 at p. 3). Third, the report does not include an opinion regarding the cause of death or a link between the deceased's fall and his passing (Docket No. 53-8 at pp. 3-4).
Rule 26(a)(2)(B) requires expert witnesses to provide a written report that, among other things, contains: (1) a complete statement of all opinions the witness will express and the basis and reasons for them; and (2) the facts or data the witness considered in forming the opinion(s). The report "must be complete such that opposing counsel is not forced to depose an expert in order to avoid an ambush at trial," and "sufficiently complete so as to shorten or decrease the need for expert depositions and thus to conserve judicial resources." R.C. Olmstead v. CU Interface, 606 F.3d 262, 271 (6th Cir. 2010); Sylla-Sawdon v. Uniroyal, 47 F.R.D. 277, 284 (8th Cir.), cert. denied 516 U.S. 822 (1995)(examining topic). Dr. Benabe's report falls short in: (1) not having (i) identified the national standard of care by which to measure BMA-Ponce's conduct: (ii) linked what it characterizes as fall prevention measures to that standard; and (2) omitting discussion of the paper that Nurse Ramos discarded.6
Plaintiffs argue there is nothing wrong with Dr. Benabe's report because it did not have to use "magic words;" reports do not have to replicate every word that the expert might say on the stand; and experts may supplement, elaborate upon, and explain their reports in oral testimony (Docket No.160 at pp. 1-2). This is true, as far as it goes.7 However, it does not justify bypassing the requirements of Rule 26. Expert reports delimit what the expert may say during trial. See,Meyer v. Bodum, 715 F.Supp.2d 827, 830 (N.D. Ill. 2010)("Both the language and the structure of the operative rules call for opinion witnesses' reports to be self-contained"); Medtronic Inc. v. Guidant Corp., 2004 WL 5501181, *1 (D.Del. Oct. 6, 2004)(granting motion in limine to confine expert witness' testimony to opinions expressed in expert's report). Therefore, Dr. Benabe's report lacks a complete statement of all opinions the expert witness would be expressing at trial and the basis and reasons for them in violation of Rule 26(a)(2)(B) and (e)(2).8
Rule 37(c)(1) operates as an enforcement mechanism for Rule 26(a)(2), providing that when a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, hearing, or at a trial, unless the failure was substantially justified or is harmless. See, Peña-Crespo v. Puerto Rico, 408 F.3d 10, 12-13 (1st Cir. 2005)(sustaining decision to prohibit expert witness from testifying at trial in part due to failure to provide a report that satisfied the requirements of Rule 26(a)(2)(B), as exclusion is a standard sanction for violation of duty to disclose under Rule 26). The burden of establishing that a failure to disclose was substantially justified or harmless rests on the potentially sanctioned party. See, Wilson v. Bradlees of New England, 250 F.3d 10, 21 (1st Cir. 2001)(applying formulation).
Plaintiffs offer no...
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