Opinion
Civil No. 02-1426 (JAG).
August 11, 2004
Maria S. Kortright-Soler Nora Vargas-Acosta, M.S. Kortright Soler Law Office De Jesus, Hey Vargas Law Office, San Juan, PR, Attorneys for Plaintiffs.
Isabel Munoz-Acosta, United States Attorney's Office, San Juan, PR, Attorneys for Defendants.
OPINION AND ORDER
On August 11, 2003, defendant, the United States ("defendant"), moved to strike from the record and exclude, respectively, the expert opinion and report of Dr. Carmen Ortiz Roque ("Dr. Ortiz"), plaintiffs' witness, and for summary judgment. Defendant argues that Dr. Ortiz is not qualified to give expert testimony, that even if she were deemed qualified her opinion would not be reliable nor relevant and thus not admissible, and that lacking an expert witness, plaintiffs' medical malpractice complaint must be dismissed with prejudice (Docket No. 30). On October 30, 2003, plaintiffs, Raúl Pérez-Viera, Laura Concepción-Perez, the Conjugal Partnership Pérez-Concepción, Raúl Pérez, Jr., Michael Pérez, and Rosemarie Pérez (collectively "plaintiffs"), opposed defendant's motion (Docket No. 41). For the reasons discussed below, the Court DENIES defendant's motion to strike the expert report, exclude the expert testimony, and for summary judgment.
FACTUAL BACKGROUND
Plaintiff Raúl Pérez-Viera (individually "Mr. Pérez") is a seventy-two year old Korean War veteran. On April 22, 1998, Mr. Pérez suffered a stroke and was taken to the Inter American Hospital for Advanced Medicine ("HIMA") in Caguas, Puerto Rico. On May 19, 1998, Mr. Pérez voluntarily checked out of HIMA, and was transferred and admitted to the San Juan Veterans Affairs Medical Center ("VAMC"). Mr. Pérez contends that at the time of the transfer he was suffering from right hemiplegia, or partial paralysis of one side of the body that results from disease of or injury to the motor centers of the brain. On July 16, 1998, Mr. Pérez was sent to the Veterans Affairs Medical Center Nursing Care Unit ("VAMC-NCU") to continue treatment. It appears from the record that on August 23, 1998, Mr. Pérez was transferred back to the VAMC. A panorama of the history of Mr. Pérez's condition during the subsequent months proves confusing, as evidenced by the controversies involving the diagnosis and treatment of peripheral vascular disease, diabetes, and osteomyelitis. After a series of medical complications, the natures and origins of which are disputed by the parties, Mr. Pérez's right leg was amputated above the knee on October 30, 1998. On November 13, 1998, Mr. Pérez was released from the VAMC.
On March 14, 2002, plaintiffs filed an action for emotional and physical damages under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2671, et seq. Specifically, plaintiffs point to defendant's medical malpractice, alleging negligent actions and omissions in the care of Mr. Pérez while he was at the VAMC and the VAMC-NCU. To support their claims, plaintiffs submitted the report of Dr. Ortiz, designated as plaintiffs' expert witness. Dr. Ortiz rendered an expert witness report and stated that the VAMC deviated from the medical standard of care, and that this departure led to Mr. Pérez's deteriorating health and was the proximal cause of the development of the conditions that caused the amputation of Mr. Perez's right leg.
Defendant, in turn, submits that (1) Dr. Ortiz lacks the necessary qualifications to give expert testimony in this case, (2) that even if she were qualified her testimony would be inadmissible on grounds of unreliability and irrelevance, and (3) that summary judgment should be granted against plaintiffs on the resulting absence of expert testimonial evidence supporting the allegation of medical malpractice.
DISCUSSION
A. Standard for Determining Whether a Witness is Qualified to Testify as an Expert
The admissibility of expert testimony is governed by Federal Rules of Evidence 702 and 703. Diefenbach v. Sheridan Transp., 229 F.3d 27, 30 (1st Cir. 2000). Three requirements are imposed by Rule 702: (1) the expert must be qualified to testify, by knowledge, skill, experience, training, or education; (2) the testimony must concern scientific, technical or other specialized knowledge; and (3) the testimony must be such as to assist the trier of fact to understand the evidence or to determine a fact in issue. United States v. Corey, 207 F.3d 84, 88 (1st Cir. 2000). Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Fed.R.Evid. 702. The paramount question that a court must answer in ascertaining whether a proposed expert's testimony will assist the trier of fact is "whether the untrained layman would be qualified to determine intelligently and to the best degree the particular issue without enlightenment from those having a specialized understanding of the subject matter involved."United States v. Shay, 57 F.3d 126, 133 (1st Cir. 1995).
When a party presents an expert, the trial judge performs a gatekeeping function, determining whether it is reasonably likely that the expert enjoys specialized knowledge which will better abet the trier in grasping a fact in issue. United States v. Sep ú lveda, 15 F.3d 1161, 1183 (1st Cir. 1993). Whether a witness is qualified as an expert can only be confirmed by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness' testimony. Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir. 1990). Generally, "any person who has acquired by study or experience particular knowledge or skill may be allowed to give his opinion on matters relating to that knowledge or skill." 33 Am.Jur. Proof of Facts 2d 179 § 5 (2003). The question is not whether the witness is more qualified than other experts in the field; rather, "the issue is whether the witness is more competent to draw the inferences than the lay jurors and judge." John W. Strong, et al., McCormick on Evidence § 13, at 24 (5th ed. 1999).
Furthermore, under Rule 702 there is no specific procedure that the trial court is required to follow in executing its gatekeeping function. United States v. D í az, 300 F.3d 66, 73 (1st Cir. 2002). Thus, gaging an expert witness' usefulness is a case-specific inquiry. Bogosian v. Mercedes-Benz of N. Am., 104 F.3d 472, 476 (1st Cir. 1996). "The law affords trial judges substantial discretion in connection with the admission or exclusion of opinion evidence." Id. Nevertheless, preliminary questions concerning the qualification of a person to be a witness should be established by a preponderance of proof.Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 n. 10 (1993). Finally, disallowance of expert testimony "is the exception rather than the rule." United States v. Mart í nez-Cintr ó n, 136 F. Supp.2d 17, 20 (D.P.R. 2001).
B. Defendant's Motion Challenging Dr. Ortiz's Expert Qualifications
According to the legal standard for evaluating medical malpractice cases in Puerto Rico, the trier of fact must determine whether or not the level or quality of medical attention in a given case fulfilled the professional requirements generally accepted by the medical profession. Wilson v. United States, 699 F. Supp. 20, 24 (D.P.R. 1988). In such cases, expert evidence is essential to resolve the threshold issue, namely, whether the defendant conformed to the applicable standard of practice. Joe S. Cecil William W. Schwarzer, Management of Expert Evidence, in Reference Manual on Scientific Evidence 43 (Federal Judicial Center 2000).
Presently, Dr. Ortiz is plaintiffs' proposed expert witness, and defendant initially challenges her qualifications to render an opinion on the applicable standard of medical care. Particularly, defendant posits that Dr. Ortiz is not qualified to give expert opinion in the matter at hand because she lacks the specialized knowledge that relates to the peculiar circumstances that surrounded Mr. Pérez's treatment. To support this challenge, defendant requests that this Court take into account that Dr. Ortiz's private practice "is solely dedicated to gynecology and epidemiology." (Docket No. 30 at 5). Moreover, that Dr. Ortiz is not Board Certified in epidemiology, does not have a license to practice vascular surgery nor neurology, and "has no training and no specific education or postgraduate studies in either neurology, vascular surgery, physical therapy, urology, or geriatrics." (Id.). Defendant also observes that Dr. Ortiz has not published any materials related to any of the aforementioned fields. Additionally, defendant contends that Dr. Ortiz has insufficient experience in dealing with patients with osteomyelitis. In light of the relevance of each of these concerns, plaintiffs must now show that Dr. Ortiz is qualified to testify as to the alleged lack of nursing and medical care and the alleged progressive lack of control of Mr. Pérez's rehabilitative status.
It is this Court's opinion that Dr. Ortiz is amply qualified to testify as plaintiffs' expert witness regarding the allegations of deficient nursing and medical care which allegedly resulted in the loss of one extremity and in the general deterioration of Mr. Pérez's health. Dr. Ortiz's qualifications include a medical doctorate from the University of Puerto Rico Medical Science Campus, a Master's Degree in Public Health in the area of epidemiology from the Harvard School of Public Health, and a Master's Degree in Biology from the University of Puerto Rico. As a medical student she received the "Smith Kline Beckham Medical Perspective Fellowship" for her research in a specific type of bacterial infection. She also rotated in the Veterans Affairs Hospital for a year as a medical student. She is Board Certified in Obstetrics and Gynecology, thus, she is qualified as a general practitioner. Forty-percent of her private practice is dedicated to epidemiology. She has dealt in the past with patients with serious neurological damage, is the primary physician of many diabetic patients, and is involved in the prevention of infection in post-operative diabetic patients. Recently, she had three patients with osteomyelitis for whom she was the primary caretaker. Likewise, she has diagnosed patients with peripheral vascular disease, and has been consulted to partake in examining elderly patients suffering from past neurological distress and diabetes, the latter relevant to the onset of incontinence. Accordingly, at first glance, Dr. Ortiz is more than qualified to give medical expert testimony regarding a physician's standard of conduct and care, so long as what she testifies to is suitable and befitting to her experience and knowledge.
Defendant has raised various concerns over Dr. Ortiz's qualifications, none of which serves to exclude the latter from expressing her opinion and facilitating the fact-finder's meeting of its judicial obligations.
The fact that Dr. Ortiz's primary specialty is that of Obstetrics and Gynecology does not preclude her from giving expert testimony in this case, considering that what is being alleged is a failure to abide by fundamental paradigms of physician-patient relationships, i.e., routine supervision and timely diagnoses of foreseeable health hazards. During four years of training, the obstetrician-gynecologist learns about "aspects of preventive health care, including exams and routine tests that look for problems before [one] is sick, immunizations, overall health and provision of care for a range of medical problems." American Board of Obstetrics and Gynecology, Inc., http://www.abog.org/women/defs.html. No branch of medicine can be isolated from all others. It has been said that "where a duly licensed and practicing physician has gained knowledge of the standard of care applicable to a specialty in which he has an opinion based on education, observation or association with that specialty, his opinion is competent." Evans v. Ohanesian, 112 Cal.Rptr. 236, 240-41 (Cal.App. 4.Dist. 1974). Moreover, the First Circuit has declared that "the fact that the physician is not a specialist in the field in which he is giving his opinion affects not the admissibility of his opinion but the weight the jury may place on it." Payton v. Abbott Labs, 780 F.2d 147, 155 (1st Cir. 1985). Indeed, "the medical opinion of specialists may be entitled to greater weight than that of general practioners."Alvarado v. Weinberger, 511 F.2d 1046, 1049 (1st Cir. 1975). Recently, the First Circuit set forth that in a medical malpractice case it would have been an abuse of discretion for a district court to exclude expert testimony on the sole basis that the individual's medical specialty was something other than that related to the testimony rendered. Gaydar v. Sociedad Instituto Gineco-Quir ú rgico y Planificaci ó n Familiar, 345 F.3d 15, 25 (1st Cir. 2003). To exclude Dr. Ortiz's testimony simply because she is not a specialist in the fields defendant lists would be improper. In the instant case, Dr. Ortiz appears to have, at the very least, the minimal qualifications of an expert in the relevant field in which she is expected to testify. She will, therefore, be allowed to testify as an expert. Samuel R. Gross, Expert Evidence, 1991 Wis. L.Rev. 1113, 1158 (1991);see, e.g., United States v. Viglia, 549 F.2d 335 (5th Cir. 1977) (physician with no particular experience in area could testify on use of drug allegedly to treat obesity).
Defendant's additional grounds for disavowing Dr. Ortiz's expert testimony are equally unsatisfactory. For instance, as defendant details, Dr. Ortiz is not Board Certified in neurology, geriatrics, epidemiology, nor vascular surgery. However, "Board Certification has never been held a prerequisite to qualification as an expert medical witness." Weinberger, 511 F.2d at 1049. As an illustration, certified epidemiologists themselves affirm that "there are many qualified infection control professionals who have not pursued certification." Certified Board of Infection Control and Epidemiology, Inc., http://www.cbic.org/faq.html. This Court concludes that Dr. Ortiz's lack of publications in certain fields and relatively limited exposure to osteomyelitis, when weighed against her experience, studies and reasonably circumscribed testimony, do not forestall her qualification for giving expert testimony.
C. Defendant's Motion Challenging the Reliability and Relevance of Dr. Ortiz's Testimony
Alternatively, defendant argues that even if Dr. Ortiz is qualified to give expert testimony, her opinion is based on an unreliable methodology and is legally irrelevant. The Court will proceed to briefly discuss why these arguments should be summarily rejected.
The Supreme Court, in examining expert testimony, held that "in order to qualify as scientific knowledge, an inference or assertion must be derived by the scientific method." Daubert v. Merrell Dow Pharms., 509 U.S. 579, 590 (1993). Proposed testimony must be supported by proper validation. Id. Thus, a standard of evidentiary reliability is established by the requirement that an expert's testimony pertains to scientific knowledge. Id. So, "the party seeking to have the district court admit expert testimony must demonstrate that the expert's findings and conclusions are based on the scientific method, and, therefore, reliable." Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir. 1998). Notably, "the proponent need not prove to the judge that the expert's testimony is correct, but she must prove by a preponderance of the evidence that the testimony is reliable." Id.
Defendant postulates that because Dr. Ortiz's testimony is based on scrutiny of the medical record, without further research or examination, it is not scientific and hence unreliable.
Confusion with respect to the Daubert principles blankets defendant's assertions. This Court will not require that any and all expert witnesses, testifying as to what constitutes a traditional standard of care and the probable consequences of a lack thereof, conform to the exigencies of peer publication or extensive research. Dr. Ortiz is not arguing for a novel theory of causation, nor irresponsibly stating uncorroborated facts. Her testimony is limited to helping the finder of fact understand how alleged negligence in overlooking a patient's initial condition and subsequent deterioration would not be consonant with the typical medical standard of care.
As far as the irrelevance issue is concerned, it is inapplicable to the case at hand Defendant acutely summarized the rules governing relevance. Relevance is that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. For evidence or expert testimony to be admissible it must assist the trier of fact "to understand the evidence or to determine a fact in issue." Daubert, 509 U.S. at 591. Thus, a deciding factor in admitting evidence on account of helpfulness and relevance is that a valid scientific connection exists between the proposed testimony and the pertinent inquiry. Id. at 591-92.
Dr. Ortiz will provide a qualified and reliable expert opinion that will assist the inquiring process of the trier of fact as related to the nature of the standard of care imposed on physicians and the reasonable repercussions of departing from it. In light of the preceding, this Court determines that Dr. Ortiz's testimony is relevant.
Finally, defendant seems to de-emphasize the reality of the adversarial process. The weakness in the underpinnings of an expert's opinions may be developed upon cross-examination, as such weakness goes to the weight and credibility of the testimony. Polk v. Ford Motor Co., 529 F.2d 259, 271 (8th Cir. 1976).
C. Defendant's Motion for Summary Judgment
This Court DENIES defendant's motion for summary judgement because the arguments and evidence supporting that action are wanting and scarce. Defendant contends that "granting the motion to strike Dr. Ortiz's expert report and to exclude her testimony demands grant of . . . summary judgment." (Docket No. 30 at 20). Regrettably for defendant Dr. Ortiz's expert report and testimony are admissible. At this stage, "the inquiry performed is the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Plaintiffs' evidence opposing summary judgment doesn't directly address each of defendant's contentions, but it does, together with all relevant materials, satisfy the threshold of establishing evidence for a genuine factual dispute of a material issue. Though plaintiffs' evidence may appear thin to defendant, it confirms factual disagreements as to which sensible minds may diverge. Cort é s-Irizarry v. Corporaci ó n Insular de Seguros, 111 F.3d 184, 192 (1st Cir. 1997). "No more is exigible." Id.
It is well settled that "arguably, there are no certainties in science." Daubert, 509 U.S. at 590. Furthermore, in determining the admissibility of witnesses, "federal judges are governed by Rule 43(a) of the Fed.R.Civ.P. which favors the reception of evidence." Frost v. Mayo Clinic, 304 F. Supp. 285, 288 (D.C. Minn. 1969). Dr. Ortiz's expertise will prove useful in determining whether medical malpractice occurred and if it did, whether it was the legally significant cause of plaintiffs' injuries. Admissibility of expert witness is closely intertwined with a court's discretion. Discretion when used as a guide for judicial performance "means sound discretion exercised with due regard for that which is right and equitable under the circumstances." Atchison, T S.F. Ry. Co. v. Jackson, 235 F.2d 390, 393 (10th Cir. 1956). Discretion should be directed by reason and conscience to a just result. Id. Defendant has not met the burden of persuading this Court that permitting Dr. Ortiz to testify, or to permit this case to go forward, would contradict these maxims. The witness is qualified, her report is received, and defendant's motion is denied.
CONCLUSION
For the foregoing reasons, the Court hereby DENIES defendant's motion to strike the expert report, exclude the expert testimony, and for summary judgment (Docket No. 30).
IT IS SO ORDERED.