United States Court of Appeals

For the First Circuit

No. 11-1480

ANTON K. SAMAAN,

Plaintiff, Appellant,

v.

ST. JOSEPH HOSPITAL AND DAVID KAPLAN, M.D.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,

Torruella and Selya, Circuit Judges.

John P. Flynn, III, with whom Richard D. Tucker and Tucker Law

Group were on brief, for appellant.

Elizabeth A. Germani, with whom James F. Martemucci and

Germani Martemucci Riggle & Hill were on brief, for appellee St.

Joseph Hospital.

Teresa M. Cloutier, with whom Phillip M. Coffin III and

Lambert Coffin were on brief, for appellee David Kaplan, M.D.

January 9, 2012
SELYA, Circuit Judge. After extensive motion practice,

the district court ended this medical malpractice case by granting

summary judgment for the defendants. The ensuing appeal requires

us to unravel a jurisdictional tangle, clarify the status of Maine

law concerning causation, and answer a series of questions

regarding the admissibility of scientific evidence. Having run

this gauntlet, we affirm the judgment.

I. BACKGROUND

Plaintiff-appellant Anton K. Samaan is an Egyptian native

who resides in Brooklyn, New York. He enjoys dual citizenship in

Egypt and the United States.

On January 14, 2006, the plaintiff flew from Cairo to

Milan, where he boarded a connecting flight bound for New York. 

Toward the end of his journey, he repaired to the galley in search

of a cup of tea. A flight attendant thought that he looked sick,

sat him down, and recruited health-care professionals from among

the passengers.

A second-year medical resident examined the plaintiff and

concluded that he was probably experiencing an ischemic stroke or

transient ischemic attack brought on by the stoppage of blood flow

to part of his brain. The pilot detoured to the nearest airport:

Bangor, Maine. An ambulance took the plaintiff to St. Joseph

Hospital (the Hospital). In all, less than two hours elapsed

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between the time of the flight attendant's intervention and the

plaintiff's arrival at the Hospital.

The record is sparse in regard to how the plaintiff was

treated at the Hospital's emergency room. One thing is clear: no

intravenous shot of tissue plasminogen activator (t-PA) was

administered. The drug is a form of thrombolytic therapy that

works by dissolving clots that are occluding arteries. Its

efficacy in any given patient is uncertain but its goal is to

reduce neurologic injury caused by a stroke.

Not every stroke patient is a candidate for t-PA. First,

t-PA is not a panacea. Second, it has to be used within a

relatively short period of time after the onset of symptoms (a

three-hour window was generally regarded as appropriate at the time

of the plaintiff's stroke). Third, t-PA has the potential to cause

intracranial hemorrhaging, serious systemic bleeding, a new stroke,

and sometimes death. Last — but far from least — accepted protocol

dictates that it should be withheld in many circumstances,

including but not limited to cases where the stroke is severe, the

time of onset is unknown, the patient experienced a seizure at the

onset, or the patient had another stroke or underwent major surgery

in the preceding three months. If used when contraindicated, t-PA

-3-
is not only likely to be ineffective but also may increase the

chances of adverse effects.1

During his time at the Hospital, the plaintiff's

condition deteriorated and then stabilized. When he did not

improve, an ambulance transported him to an institution in New

York. He went from there to a series of other rehabilitation

facilities and eventually returned home (albeit still partially

paralyzed and unable to work).

On December 16, 2009, the plaintiff sued the Hospital and

his attending physician there, Dr. David Kaplan, in a Maine state

court. His complaint alleged professional negligence (medical

malpractice) and negligent infliction of emotional distress, both

relating to a failure to administer t-PA. Fifteen days later Dr.

Kaplan, citing the existence of diversity jurisdiction, removed the

case to the United States District Court for the District of Maine. 

See 28 U.S.C. §§ 1332(a), 1441(a). The Hospital neither signed the

removal papers nor otherwise manifested its written consent to the

change in forum. Dr. Kaplan answered the complaint in the federal

court on January 11, 2010, and the Hospital followed suit within

the next couple of days.

We include this information for the sake of completeness. 1

Because this case is resolved on grounds not implicating the

question of whether the plaintiff was a suitable candidate for tPA, we need not probe this point.

-4-
The plaintiff moved to remand the action to the state

court on the sole ground that the Hospital had failed to join the

notice of removal. Finding that the Hospital had impliedly

consented to removal, the district court denied the motion. Samaan

v. St. Joseph Hosp. (Samaan I), 685 F. Supp. 2d 163, 165-67 (D. Me.

2010).

Near the conclusion of discovery, Dr. Kaplan filed both

a motion to exclude the testimony of Dr. Ravi Tikoo and a motion

for summary judgment. The plaintiff had designated Dr. Tikoo as

his expert witness on causation (to establish that the negligence

in failing to administer t-PA proximately caused the plaintiff's

injuries).

The district court initially denied the defendants'

motions. Samaan v. St. Joseph Hosp. (Samaan III), No. CV-09-656,

2010 WL 4135287 (D. Me. Oct. 14, 2010) (denying summary judgment);

Samaan v. St. Joseph Hosp. (Samaan II), 744 F. Supp. 2d 367 (D. Me.

2010) (denying motion to exclude). Dr. Kaplan moved for

reconsideration or, in the alternative, a Daubert hearing. See

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993). 

The court scheduled the requested hearing for December 9, 2010.

At the Daubert hearing, both Dr. Tikoo and the

defendants' expert, Dr. Paul Nyquist, testified. Though the

cornerstone of each doctor's opinion was the definitive study of

the efficacy of t-PA — a 1995 study conducted by the National

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Institute of Neurological Disorders and Stroke (NINDS) — a vast

gulf separated their views. For now, it suffices to say that the

two men, though using the same data, strongly disagreed about

whether the failure to administer t-PA proximately caused the

plaintiff's injuries.

In addition to presenting different interpretations of

the data through their experts, the parties argued for different

interpretations of Maine law. The defendants posited that Maine

requires a medical malpractice plaintiff to prove that the

allegedly negligent act was "more likely than not" a substantial

cause of the injury; the plaintiff demurred, arguing that Maine

would recognize the "lost chance" doctrine, which permits recovery

when a patient's chances are diminished to some degree by a

doctor's acts or omissions.

The district court concluded that the applicable standard

for causation was "more likely than not" and that Maine had not

adopted the "lost chance" doctrine. Samaan v. St. Joseph Hosp.

(Samaan IV), 755 F. Supp. 2d 236, 246-48 (D. Me. 2010). The court

then proceeded to analyze Dr. Tikoo's testimony and determined that

his statistical calculations were not responsive to the question of

whether the failure to administer t-PA more likely than not caused

the plaintiff's injuries. Id. at 248-49. The court therefore

excluded Dr. Tikoo's testimony.

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This ruling prompted the defendants to move for

reconsideration of the court's earlier denial of summary judgment,

see Samaan III, 2010 WL 4135287, at *1, contending that the

plaintiff's case evaporated with the exclusion of the testimony of

its only causation expert. The plaintiff opposed this motion on

various grounds, arguing among other things that two other expert

witnesses could provide competent evidence that the failure to

treat the plaintiff with t-PA proximately caused his injuries. 

Finally, he posited that his claim for negligent infliction of

emotional distress survived the exclusion of Dr. Tikoo's testimony.

After pausing to exclude a "to whom it may concern"

letter (to which we shall return shortly), Samaan v. St. Joseph

Hosp. (Samaan V), 764 F. Supp. 2d 238, 239-40 (D. Me. 2011), the

district court denied the defendants' renewed motion for summary

judgment, Samaan v. St. Joseph Hosp. (Samaan VI), 764 F. Supp. 2d

240, 249 (D. Me. 2011). The court predicated this ruling on a

tentative finding that the descriptions of the new experts'

expected testimony appeared sufficient to defeat summary judgment

on the question of causation. Id. at 247-49. But the court warned

that there might be "other reasons to exclude the[] testimony." 

Id. at 249 n.4. On a related topic, the court's rescript made

clear that, with respect to proof of causation, it viewed medical

malpractice and negligent infliction of emotional distress as peas

in a pod. Id. at 246-47.

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The defendants responded by moving to exclude the

testimony of the newly identified causation "experts" and for

reconsideration of summary judgment in light of that anticipated

exclusion. They offered both procedural and substantive reasons

for excluding the testimony. The plaintiff opposed these motions

but the district court granted them.

The court's principal basis for excluding the newly

identified testimony was its determination that neither of the two

physicians who were the source of that testimony had been

designated as an expert witness with respect to causation. Samaan

v. St. Joseph Hosp. (Samaan VII), 274 F.R.D. 41, 45-50 (D. Me.

2011). The entry of summary judgment followed from that exclusion:

without any expert opinion evidence of causation, the plaintiff's

claims necessarily failed. Id. at 53. This timely appeal ensued.

II. ANALYSIS

In this venue, the plaintiff raises a gallimaufry of

issues. His most loudly bruited claims of error relate to the

denial of his motion to remand the case to state court, the

formulation of the standard for causation under Maine law, the

exclusion of expert witness testimony, and the entry of summary

judgment vis-à-vis his claim of negligent infliction of emotional

distress. We address this asseverational array piece by piece.

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A. The Motion to Remand.

A motion to remand usually presents a question of federal

subject matter jurisdiction. See BIW Deceived v. Local S6, Indus.

Union of Marine & Shipbuilding Workers of Am., 132 F.3d 824, 830

(1st Cir. 1997). When, as in this case, the pertinent facts are

not in dispute, the district court's denial of such a motion

engenders de novo review. See id.

In a diversity case, the rule of unanimity requires that,

within a specified time frame, all defendants must consent in

writing to the removal. See 14C Charles A. Wright, Arthur R.

Miller, Edward H. Cooper & Joan E. Steinman, Federal Practice and

Procedure § 3730, at 440-59 & n.11 (4th ed. 2009) (collecting

cases). The plaintiff says that the removal here offended this

rule because the Hospital neither signed the removal papers nor

otherwise consented in writing to removal.

Congress has prescribed the framework for removal. The

statutory scheme provides that a defendant may remove a civil

action from a state court to a federal court sitting in that state

only if the federal court has "original jurisdiction" over the

action. 28 U.S.C. § 1441(a). This case meets that rudimentary

benchmark: the parties are of diverse citizenship and the amount in

controversy exceeds $75,000, thus satisfying the criteria set out

in 28 U.S.C. § 1332(a).

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Removal, however, must sometimes satisfy other

requirements as well. In a diversity case, unanimity is one such

requirement. But before turning to that requirement, we must iron

out a wrinkle that neither the parties nor the district court

spotted.

The defendants, though diverse from the plaintiff, are

citizens of Maine (the forum state). The removal of a diversity

case by an in-forum defendant transgresses 28 U.S.C. § 1441(b),

which provides that unless the action is one "arising under"

federal law, removal is permissible only if "none of the

. . . defendants is a citizen of the State in which such action is

brought." In light of this prohibition, it is readily apparent

that the instant action — which is not one arising under federal

law — was improperly removed.

Withal, the statutory scheme creates a safety valve: "[a]

motion to remand the case on the basis of any defect other than

lack of subject matter jurisdiction must be made within 30 days

after the filing of the notice of removal" or else it is waived. 

28 U.S.C. § 1447(c). After this 30-day period, only if "the

district court lacks subject matter jurisdiction" must the case be

remanded to state court. Id.

The pivotal question, then, is whether removal in

contravention of the prohibition against removal by an in-forum

defendant is jurisdictional in nature or merely a procedural defect

-10-
that may be waived. See Grubbs v. Gen. Elec. Credit Corp., 405

U.S. 699, 702 (1972) ("[If] after removal a case is tried on the

merits without objection and the federal court enters judgment, the

issue in subsequent proceedings on appeal is not whether the case

was properly removed, but whether the federal district court would

have had original jurisdiction of the case had it been filed in

that court."). We hold that removal in contravention of the

prohibition against removal by an in-forum defendant creates a

procedural defect that is subject to waiver under 28

U.S.C. § 1447(c).

This holding echoes the holding in Farm Construction

Services, Inc. v. Fudge, 831 F.2d 18 (1st Cir. 1987) (per curiam). 

There, the defendants had improperly removed the case to their

home-state federal court. Id. at 22. We concluded that the

plaintiff's "continued prosecution of the case in federal court for

approximately one year, and its failure to object to removal until

after judgment had been rendered, constitue[d] implicit consent to

federal court jurisdiction and waiver of its right to object to

removal." Id. Because all the requirements for diversity

jurisdiction were satisfied, the improper removal had no effect on

the federal court's capacity to hear the case. Accord In re 1994

Exxon Chem. Fire, 558 F.3d 378, 392-93 (5th Cir. 2009); Lively v.

Wild Oats Mkts., Inc., 456 F.3d 933, 939-40 (9th Cir. 2006); Hurley

v. Motor Coach Indus., Inc., 222 F.3d 377, 379 (7th Cir. 2000);

-11-
Handelsman v. Bedford Vill. Assocs. Ltd. P'ship, 213 F.3d 48, 50

n.2 (2d Cir. 2000); Moores v. Greenberg, 834 F.2d 1105, 1106 n.1

(1st Cir. 1987). But see Horton v. Conklin, 431 F.3d 602, 605 (8th

Cir. 2005).

We need not tarry over the question of whether a waiver

transpired here. The plaintiff did not raise the defendants' Maine

citizenship in support of his motion to remand. He has litigated

the case for years (first in the district court and presently in

this court) without advancing any argument based on the defendants'

in-forum citizenship. Consequently, any objection to removal based

on that citizenship has been waived. See, e.g., Moores, 834 F.2d

at 1106 n.1; Fudge, 831 F.2d at 22. The fact that the plaintiff

objected to removal on a different basis does not avert this

waiver. See Hartford Accident & Indem. Co. v. Costa Lines Cargo

Servs., Inc., 903 F.2d 352, 358-60 (5th Cir. 1990) (finding

objection to removal on different ground insufficient to preserve

objection to violation of in-forum defendant rule).

We now move from the objection that the plaintiff did not

make to the one that he did make: his plaint that the defendants

failed to comply with the rule of unanimity. On this point, the

case before us is controlled by our decision in Esposito v. Home

Depot U.S.A., Inc., 590 F.3d 72 (1st Cir. 2009).

In Esposito, we explained that the driving forces behind

the rule of unanimity are the desire to prevent duplicative

-12-
litigation and the desire to protect one defendant from seizing a

tactical advantage at the expense of a fellow defendant. Id. at

75. With these concerns in mind, we eschewed a "wooden rule" for

demonstrating unanimity, holding that, at a minimum, an apparent

lack of unanimity could be remedied by a non-signing defendant's

timely opposition to a motion to remand. Id. at 77. Such a course

of conduct adequately evinces the non-signing defendant's

willingness to remain in the federal forum and, thus, satisfies the

concerns that inform the rule of unanimity.

To be sure, the better practice is for all defendants to

sign the notice of removal. Under our precedent, however,

effective consent to the removal can be manifested in other ways. 

Here, the Hospital did not sign the notice, but it filed an answer

in the federal court and vigorously opposed the plaintiff's motion

to remand. In the words of the Esposito court, it thereby "clearly

communicat[ed] its desire to be in federal court." Id. No more

was exigible to cure the technical defect in the notice of removal. 

See id. Accordingly, the court below did not err in denying the

plaintiff's motion to remand.

B. The Causation Standard.

Maine state law prescribes the substantive rules of

decision in this diversity case. See Erie R.R. v. Tompkins, 304

U.S. 64, 78 (1938). In Maine, causation is an element of a

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negligence-based cause of action. See Baker v. Farrand, 26 A.3d 2

806, 811 (Me. 2011); Dickey v. Vermette, 960 A.2d 1178, 1185 (Me.

2008). Maine's highest court has held that an examination of

causation requires a two-part inquiry, which asks whether the

negligent act played a "substantial part in . . . causing the

injury" and, if so, whether the injury was a "reasonably

foreseeable" result of the act. Crowe v. Shaw, 755 A.2d 509, 512

(Me. 2000). This case centers on what the plaintiff must prove to

meet the "substantial part" requirement of causation under Maine

law.

The district court determined that Maine requires a

medical malpractice plaintiff to prove a probability of harm; that

is, that the alleged negligence more likely than not brought about

the plaintiff's injuries. Samaan IV, 755 F. Supp. 2d at 246-48. 

Because this determination rests on the court's assessment of the

law and not on its assessment of the facts, our review is plenary. 

See Salve Regina Coll. v. Russell, 499 U.S. 225, 239-40 (1991);

United States v. Gifford, 17 F.3d 462, 472 (1st Cir. 1994).

The crux of the plaintiff's argument is that the Maine

Supreme Judicial Court (the Law Court) has left the door open for

Because this case turns on causation, we assume, without 2

deciding, that the failure to administer t-PA occurred in

circumstances that satisfy the other elements of the tort of

professional negligence (medical malpractice). Thus, we need not

address whether the plaintiff was a proper candidate for t-PA, or

whether the failure to give him t-PA was in fact a departure from

the standard of care.

-14-
Maine to embrace the "lost chance" doctrine. He asserts that this

doctrine should be applied here and that his proof is adequate to

establish a trialworthy issue thereunder. The district court

disagreed with the proposition that Maine law encompasses the lost

chance doctrine, and so do we.

As the Law Court recognized in Phillips v. Eastern Maine

Medical Center, 565 A.2d 306 (Me. 1989), the "more likely than not"

standard and the "lost chance" doctrine are the two prevailing

approaches to causation in medical malpractice cases. The "more

likely than not" standard requires a showing of probability: in

jurisdictions following this approach, by "show[ing] a better than

even chance of avoiding harm in the absence of medical negligence,"

a plaintiff proves that the negligence played a substantial part in

causing the injury. Id. at 308. By contrast, in jurisdictions

following the "lost chance" doctrine, the plaintiff need only "show

that he was deprived of a significant chance of avoiding harm" to

meet the "substantial part" requirement. Id. A showing of

probability is not required.

The plaintiff's argument that Maine has left the door

open for the lost chance doctrine starts with this discussion in

Phillips. However, the Phillips court mentioned the lost chance

doctrine in that context only to present an overview of the

approach. The court stopped at this point; it neither approved nor

rejected the doctrine.

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That is the high-water mark of the plaintiff's argument,

and his singular reliance on Phillips ignores the remaining corpus

of Maine malpractice law. Going beyond Phillips, we find valuable

guidance in the Maine Health Security Act (MHSA), which governs

professional negligence actions against health-care providers. See

Me. Rev. Stat. Ann. tit. 24, §§ 2501-2987. The case at hand rests

on claims of professional negligence and, thus, falls within the

compass of the MHSA. See id. § 2502(6); see also Saunders v.

Tisher, 902 A.2d 830, 832-35 (Me. 2006) (explaining that negligence

and negligent infliction of emotional distress claims against

doctors, arising out of medical treatment, are covered).

In the MHSA, the Maine legislature required a medical

malpractice plaintiff to show "a reasonable medical or professional

probability that the acts or omissions complained of constitute a

deviation from the applicable standard of care." Me. Rev. Stat.

Ann. tit. 24, § 2502(7)(A). The plaintiff also must show "a

reasonable medical or professional probability that the acts or

omissions complained of proximately caused the injury complained

of." Id. § 2502(7)(B) (emphasis supplied). This formulation of

the causation standard is clear and unambiguous. It admits of only

one interpretation: the phrase "reasonable medical probability"

demands that the injury be a probable or likely result of the

negligent act or omission. See, e.g., Harvey v. H.C. Price Co.,

957 A.2d 960, 968 n.5 (Me. 2008); see generally Black's Law

-16-
Dictionary 1380 (9th ed. 2009) (defining "reasonable medical

probability" as "a standard requiring a showing that the injury was

more likely than not caused by a particular stimulus, based on the

general consensus of recognized medical thought"). It is,

therefore, beyond serious question that the standard of causation

articulated in the MHSA is incompatible with the lost chance

doctrine.

This understanding of the Maine standard of causation is

buttressed by the Maine case law which, though scanty, indicates

that the more likely than not standard controls. For example, in

Merriam v. Wanger, 757 A.2d 778 (Me. 2000), the Law Court stated

that in medical malpractice cases, "[t]he mere possibility of

. . . causation is not enough, and when the matter remains one of

pure speculation or conjecture, or even if the probabilities are

evenly balanced, a defendant is entitled to a judgment." Id. at

781. Although the court did not discuss the lost chance doctrine,

it held that because the plaintiff had failed to present evidence

that her injury would "more likely than not[] have been avoided" in

the absence of negligence, judgment for the defendant necessarily

followed. Id. Other cases are similar in tenor. See, e.g., Cyr

v. Adamar Assocs. Ltd. P'ship, 752 A.2d 603, 604-05 (Me. 2000);

Champagne v. Mid-Me. Med. Ctr., 711 A.2d 842, 845 (Me. 1998);

Spickler v. York, 566 A.2d 1385, 1390 (Me. 1989).

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That ends this aspect of the matter. The standard for

causation in medical malpractice actions in Maine is more likely

than not, and that standard is satisfied only when the plaintiff

can show a reasonable probability that, absent the negligent act,

the injury would have been avoided. The Maine legislature has

prescribed this standard, the Maine cases are consistent with it,

and there is simply no room for judicial interpolation of the lost

chance doctrine into Maine medical malpractice law.

As a fallback, the plaintiff invites us to certify to the

Law Court the question of the applicability of the lost chance

doctrine. We decline the invitation. "[W]e have held with

monotonous regularity that certification is inappropriate when the

course that the state courts would take is reasonably clear." 

González Figueroa v. J.C. Penney P.R., Inc., 568 F.3d 313, 323 (1st

Cir. 2009) (collecting cases). So it is here.3

C. The Daubert Hearing.

With the proper causation standard in place, we turn to

the plaintiff's failed attempt to make out a trialworthy issue on

causation. Courts in Maine typically require expert testimony to

establish that a physician's acts or omissions in the course of

diagnosis or treatment proximately caused a patient's injuries. 

See, e.g., Cox v. Dela Cruz, 406 A.2d 620, 622 (Me. 1979). This

At any rate, the clear language of the MHSA makes it likely 3

that the causation standard can only be altered by the legislature,

not by the courts.

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requirement is ironclad where, as here, causation is not within the

realm of common knowledge or experience. See id.; Cyr v. Giesen,

108 A.2d 316, 318 (Me. 1954).

Recognizing the need to bridge this gap, the plaintiff

offered Dr. Tikoo's testimony. The district court convened a

Daubert hearing to screen that proffer and ultimately rejected it

based on a determination that the testimony failed to cross the

Daubert threshold. Samaan IV, 755 F. Supp. 2d at 248-49. We

review this determination for abuse of discretion. Ruiz-Troche v.

Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 81 (1st Cir. 1998).

We begin with an overview of the principles that govern

the admissibility of scientific evidence. We then explain why we

uphold the district court's determination that Dr. Tikoo's

testimony falls short.4

A qualified expert may testify in the form of

an opinion or otherwise if: (a) the expert's

. . . knowledge will help the trier of fact to

understand the evidence or to determine a fact

in issue; (b) the testimony is based upon

We agree with the district court's conclusion that the 4

expert's testimony failed the relevancy or "fit" requirement for

admissibility of scientific evidence. See Samaan IV, 755 F. Supp.

2d at 248. But our explanation differs in some respects from that

of the district court. For example, we think that it overstates

the matter to say that Dr. Tikoo's opinion "[was] not supported by

sound science or reliable methodologies." Id. We also struggle

with the notion that proof of causation always requires particular

statistical evidence, either of absolute benefit or relative risk. 

See id. at 248, 249. We do not dwell on these discrepancies,

however, because we may affirm the district court's decision on any

valid basis that is made manifest by the record. Polyplastics,

Inc. v. Transconex, Inc., 827 F.2d 859, 860-61 (1st Cir. 1987).

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sufficient facts or data; (c) the testimony is

the product of reliable principles and

methods; and (d) the expert has reliably

applied the principles and methods to the

facts of the case.

Fed. R. Evid. 702. The Daubert Court explained that this rule

requires district courts to act as gatekeepers, ensuring that an

expert's proffered testimony "both rests on a reliable foundation

and is relevant to the task at hand." 509 U.S. at 597. These two

requirements — a reliable foundation and an adequate fit — are

separate and distinct.

The reliable foundation requirement necessitates an

inquiry into the methodology and the basis for an expert's opinion. 

To perform the required analysis, the district court must consider

a number of factors, including but not limited to "the

verifiability of the expert's theory or technique, the error rate

inherent therein, whether the theory or technique has been

published and/or subjected to peer review, and its level of

acceptance within the scientific community." Ruiz-Troche, 161 F.3d

at 81. Given the nature of this analysis, the expert's methodology

is commonly the "central focus of a Daubert inquiry." Id.

The second requirement has attracted less attention. 

This requirement seeks to ensure that there is an adequate fit

between the expert's methods and his conclusions. See Daubert, 509

U.S. at 591. This prong of the Daubert inquiry addresses the

problem that arises when an expert's methods, though impeccable,

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yield results that bear a dubious relationship to the questions on

which he proposes to opine. See id. at 591-92.

Seen in this light, the scope of a Daubert hearing is not

limited to an appraisal of an expert's credentials and techniques

but also entails an examination of his conclusions to determine

whether they flow rationally from the methodology employed. See

Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997); Heller v. Shaw

Indus., Inc., 167 F.3d 146, 153 (3d Cir. 1999). If perscrutation

reveals "that there is simply too great an analytical gap between

the data and the opinion proffered," the expert's testimony should

be excluded. Joiner, 522 U.S. at 146.

The plaintiff attacks both the mechanics and the outcome

of the Daubert hearing. His claims of procedural error are

patently meritless and do not warrant extended discussion. 

Instead, we adopt the well-articulated reasoning of the lower court

in regard to these points. See Samaan VI, 764 F. Supp. 2d at 244-

46; see also Vargas-Ruiz v. Golden Arch Dev., Inc., 368 F.3d 1, 2

(1st Cir. 2004) (declining to expound on issues cogently dispatched

by district court).

By the same token, we need not linger over the

plaintiff's suggestion that the district court impermissibly

shifted the summary judgment burden by opting to hold an antecedent

Daubert hearing. It is settled in this circuit that a Daubert

hearing appropriately may be held at the summary judgment stage. 

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See, e.g., Cortés-Irizarry v. Corporación Insular de Seguros, 111

F.3d 184, 188 (1st Cir. 1997).

This leaves the plaintiff's principal plaint: that the

district court abused its discretion in excluding Dr. Tikoo's

testimony. In support, he argues that Dr. Tikoo's qualifications

were impressive and that his statistical methods were comfortably

within the realm of acceptable science. These arguments miss the

mark.

The district court did not seriously question either Dr.

Tikoo's credentials or the reliability of his methods; the problem,

as the court saw it, was that the results produced through that

methodology left an analytical gap. In other words, those results

did not sufficiently ground his conclusion that the plaintiff's

condition likely would have improved had t-PA been administered. 

See Samaan IV, 755 F. Supp. 2d at 248. This is a finding about the

inadequacy of the fit; and in reviewing it, we can for the most

part leave to one side the expert's qualifications, his numerical

calculations, and the scientific community's acceptance of the

study on which he relied.

Refined to bare essence, Dr. Tikoo presented two analyses

of statistical data drawn from the NINDS study, peer-reviewed

articles, and the European Cooperative Acute Stroke Study (ECASSIII Study). His first analysis examined odds ratios between a

group of patients who had received t-PA and a placebo group. He

-22-
concluded from these ratios that a person's chances of improvement

increase by 50% with administration of the drug. Dr. Tikoo's

second analysis used absolute efficacy rates, in some instances

exceeding 50%, which he asserted were sufficient to prove that the

plaintiff's injuries likely derived from the defendants' failure to

administer t-PA. Using these analyses, Dr. Tikoo concluded that

had the plaintiff been given a timely injection of t-PA, he likely

would not have suffered the stroke-related injuries.

There is simply too great a divide between the numbers

that Dr. Tikoo employed and the conclusions that he tried to wring

from them. We elaborate below.

Dr. Tikoo's first analysis depended upon odds ratios

drawn from the literature. These odds ratios are, as the term

implies, ratios of the odds of an adverse outcome, which reflect

the relative likelihood of a particular result. Observing that 5

some of the odds ratios exceeded 1.5, Dr. Tikoo sought to testify

that the chances of a patient in the treated group recovering

increased by over 50%. Building on this foundation, Dr. Tikoo

opined that the plaintiff more likely than not would have recovered

had he received the drug.

For example, if the chances of an outcome are 50% (one in 5

two) with treatment and 33a% (one in three) without treatment, the

odds ratio for the treated group would be 1⁄2 divided by a, or 1.5

(signifying a 50% greater chance of recovery in the treated group). 

The odds ratio is, therefore, a metric that provides insight only

on relative benefit or relative risk.

-23-
As the district court recognized, this reasoning is

structurally unsound and leaves a wide analytical gap between the

results produced through the use of odds ratios and the conclusions

drawn by the witness. When a person's chances of a better outcome

are 50% greater with treatment (relative to the chances of those

who were not treated), that is not the same as a person having a

greater than 50% chance of experiencing the better outcome with

treatment. The latter meets the required standard for causation;

the former does not.

To illustrate, suppose that studies have shown that 10

out of a group of 100 people who do not eat bananas will die of

cancer, as compared to 15 out of a group of 100 who do eat bananas. 

The banana-eating group would have an odds ratio of 1.5 or a 50%

greater chance of getting cancer than those who eschew bananas. 

But this is a far cry from showing that a person who eats bananas

is more likely than not to get cancer. Even if we were to look

only at the fifteen persons in the banana-eating group who did get

cancer, it would not be likely that any particular person in that

cohort got it from the consumption of bananas. Correlation is not

causation, and a substantial number of persons with cancer within

the banana-eating group would in all probability have contracted

the disease whether or not they ate bananas.6

This is not to say that the odds ratio may not help to prove 6

causation in some instances. See, e.g., Milward v. Acuity

Specialty Prods. Grp., Inc., 639 F.3d 11, 13-14, 23-25 (1st Cir.

-24-
We think that this example exposes the analytical gap

between Dr. Tikoo's methods and his conclusions. Although he could

present figures ranging higher than 50%, those figures were not

responsive to the question of causation. Let us take the "stroke

scale" figure from the NINDS study as an example. This scale

measures the neurological deficits in different parts of the

nervous system. Twenty percent of patients who experienced a

stroke and were not treated with t-PA had a favorable outcome

according to this scale, whereas that figure escalated to 31% when

t-PA was administered. Although this means that the patients

treated with t-PA had over a 50% better chance of recovery than

they otherwise would have had, 69% of those patients experienced

the adverse outcome (stroke-related injury) anyway.7

The short of it is that while the odds ratio analysis

shows that a t-PA patient may have a better chance of recovering

than he otherwise would have had without t-PA, such an analysis

does not show that a person has a better than even chance of

2011) (reversing exclusion of expert prepared to testify as to

general rather than specific causation using in part the odds

ratio). Indeed, it is theoretically possible that a particular

odds ratio calculation might show a better-than-even chance of a

particular outcome. Here, however, the odds ratios relied on by

Dr. Tikoo have no such probative force.

Dr. Tikoo noted that the figures used to measure recovery in 7

his analyses only accounted for patients who were fully

rehabilitated. He surmised that including those who made partial

recoveries would increase the recovery percentages. But he offered

nothing to quantify this surmise and, therefore, the district court

properly disregarded it.

-25-
avoiding injury if the drug is administered. The odds ratio,

therefore, does not show that the failure to give t-PA was more

likely than not a substantial factor in causing the plaintiff's

injuries. The unavoidable conclusion from the studies deemed

authoritative by Dr. Tikoo is that only a small number of patients

overall (and only a small fraction of those who would otherwise

have experienced stroke-related injuries) experience improvement

when t-PA is administered.

Nor can Dr. Tikoo's reliance on efficacy rates salvage

his testimony. Although certain of the efficacy rates in the NINDS

study and/or the ECASS-III Study break a 50% barrier, the question

remains: "50% of what?" Looking at those rates in a vacuum ignores

the substantial number of stroke patients who would improve anyway

(that is, without receiving t-PA).

Once again, an example is useful. Dr. Tikoo, relying on

numbers derived from the ECASS-III Study, stated that 52.4% of

patients receiving t-PA recovered as measured by a particular

scale. Based on this percentage, he suggested that had the

plaintiff received t-PA, he more likely than not would have avoided

stroke-related injuries. But this suggestion completely overlooks

the 45.2% of people who recovered even without the benefit of t-PA. 

For a small number of patients who would not otherwise have

recovered, t-PA would offer some advantage, but for the majority of

-26-
patients whose conditions would not improve on their own, the

administration of the drug would make no difference.

Experts may present epidemiological statistics in

different ways to indicate causation. Either absolute or relative

calculations may suffice in particular circumstances to achieve the

causation standard. See, e.g., Smith v. Bubak, 643 F.3d 1137,

1141-42 (8th Cir. 2011) (rejecting relative benefit testimony and

suggesting in dictum that absolute benefit "is the measure of a

drug's overall effectiveness"); Young v. Mem'l Hermann Hosp. Sys.,

573 F.3d 233, 236 (5th Cir. 2009) (holding that Texas law requires

a doubling of the relative risk of an adverse outcome to prove

causation), cert. denied, 130 S. Ct. 1512 (2010). But the

testimony here left too many unanswered questions, and it would

serve no useful purpose for us to guess about what statistical

measures Dr. Tikoo might have used in an alternate universe. The

methods that Dr. Tikoo employed and the data that he presented were

simply too distant from the conclusion that he drew, thus negating

an adequate fit. 

Daubert demands relevancy, and Dr. Tikoo's testimony

falls short of this requirement. As a result, it does not support

a finding of causation under Maine law. The testimony was,

therefore, inadmissible under Daubert and Rule 702.

Many aspects of science are a mystery to laymen without

the aid of experts. In the world of the blind, the one-eyed man is

-27-
king; and Daubert relevancy is the sentry that guards against the

tyranny of experts. As the gatekeeper, the trial judge has the

duty to insulate the jury from expert testimony when reliance on

authoritative studies and methods threatens to mask the lack of an

adequate fit. An expert might be able to testify on the phases of

the moon to prove that it was dark by a particular time, but he

could not offer the same testimony to prove that a person was

likely to act in an unusual manner on that night. Daubert, 509

U.S. at 591-92.

This is a hard case. When the harm alleged is a failure

to treat and the causation standard is more likely than not, a

plaintiff must vault over a higher bar in order to prove that the

failure to treat a condition in a particular way — rather than the

underlying condition itself — caused the adverse outcome. We

understand that the plaintiff, given the benefit of hindsight, may

wish that he was given any treatment offering even a tiny chance of

preventing the adverse outcome that he experienced, regardless of

the risk. But that is not the question that the district court was

duty-bound to answer. Instead, the court was tasked with

determining whether the evidence could support the expert's

conclusion that there was causation, and it fulfilled that

responsibility.

-28-
D. The Other Evidence.

After the district court excluded Dr. Tikoo's testimony,

the plaintiff claimed to have identified two alternate causation

experts: Dr. Maryann Walsh (an employee of the Hospital) and Dr.

Elsayed Hussein (his treating physician in Brooklyn). The court

precluded this testimony primarily as a sanction for the

plaintiff's failure seasonably to designate either physician as a

causation expert. Samaan VII, 274 F.R.D. at 45-50. The plaintiff

assigns error to this ruling. He argues that he properly

designated both doctors as causation experts; that in all events,

preclusion was too severe a sanction; and that the testimony should

have been allowed on independent grounds, regardless of any

discovery violation.

We review the district court's exclusionary order for

abuse of discretion. Santiago-Díaz v. Laboratorio Cliníco y de

Referencia del Este & Sara López, M.D., 456 F.3d 272, 275 (1st Cir.

2006). "This standard of review obtains both as to the finding

that a discovery violation occurred and as to the appropriateness

of the sanction selected." Id.

The Civil Rules require litigation adversaries to

disclose to each other the identity of proposed expert witnesses

and the subjects on which their testimony will be offered. Fed. R.

Civ. P. 26(a)(2)(A)-(C). Time is of the essence, and the

disclosures must be made well in advance of trial. See generally

-29-
Fed. R. Civ. P. 26(a)(2)(D). In this case, the district court

entered a pretrial order requiring the reciprocal disclosure of

experts by specified deadlines. In response, the plaintiff

designated Dr. Tikoo "to testify that the defendants' failure to

administer t-PA to Mr. Samaan, more likely than not, was a

proximate or legal cause" of his injuries. By contrast, he

designated unnamed "medical treatment providers" (a blanket term

that he now asserts included Drs. Walsh and Hussein) to "testify

regarding their treatment of [the plaintiff], the cost of such

treatment . . . , the level of disability that they have assessed

him with, [and] the reasonably foreseeable medical treatment he

will require into the future." This designation further recited

that those anonymous physicians would "testify consistent with

their medical reports." Words such as "causation" and "t-PA" were

conspicuously absent from this designation.

Taking the plaintiff's designations in context and

crediting his assertion that Drs. Walsh and Hussein were within the

penumbra of "medical treatment providers," it is nose-on-the-face

plain that these two physicians were intended to be fact witnesses

who would testify only as to the nature of the plaintiff's

condition and the extent of his damages. The plaintiff knew how to

designate a causation expert — his designation of Dr. Tikoo was

direct and to the point — and he did not make even a semblance of

such a designation with respect to Drs. Walsh and Hussein. We

-30-
agree with the district court that the plaintiff did not adequately

identify either one as a causation expert.

In an attempt to salvage the disputed testimony, the

plaintiff adverts to a sentence in the "medical treatment

providers" designation, which states that the physicians would

testify "consistent with their medical reports." This reference

cannot carry the weight that the plaintiff loads upon it. The

designation declares that medical treatment providers, presumably

including Drs. Walsh and Hussein, will be called as witnesses on

four subjects: past treatment rendered by them, the cost of that

treatment, the level of disability, and anticipated future

treatment. It goes on to limit this designation by averring that

the providers will testify on these subjects "consistent with their

medical reports." Viewed in this light, the reference to "medical

reports" cannot plausibly be read to enlarge the scope of the

designation.

In an effort to change the trajectory of the debate, the

plaintiff cites Dr. Hussein's retrospective note in a July 5, 2007

"to whom it may concern" letter, which was intended to help the

plaintiff obtain insurance benefits. The letter remarks that

"[t]he patient should have received a TPA shot which if given 3

hours window before 2:20 a.m. should have saved his left side from

paralysis." He argues at great length about the admissibility of

this statement and suggests that Dr. Hussein should have been

-31-
permitted to testify about it. This suggestion puts the cart

before the horse.

The district court found that Dr. Hussein had not been

properly designated as a causation expert (and, therefore, could

not offer expert opinion evidence on causation). The admissibility

vel non of the letter is not material to that determination. The

relevant question is whether the record supports the district

court's finding that Dr. Hussein was not properly designated to

speak to causation. It does. That is the end of the matter.

The plaintiff has another string to his bow. The

district court sanctioned the plaintiff for the discovery violation

by excluding the witnesses' opinion testimony on causation. See

Fed. R. Civ. P. 37(c)(1) (empowering district courts to impose this

type of sanction). The plaintiff insists that even if his failure

to designate Drs. Walsh and Hussein constituted a discovery

violation, the sanction that the district court selected was too

severe.

A district court has wide discretion in choosing

sanctions for discovery violations. See Santiago-Díaz, 456 F.3d at

275. Even so, when "[a] sanction carrie[s] the force of a

dismissal, the justification for it must be comparatively more

robust." Esposito, 590 F.3d at 79. In evaluating whether a

specific sanction is appropriate in a given case, we take into

account "a multiplicity of pertinent factors, including the history

-32-
of the litigation, the proponent's need for the challenged

evidence, the justification (if any) for the late disclosure, and

the opponent's ability to overcome its adverse effects," including

"[s]urprise and prejudice." Macaulay v. Anas, 321 F.3d 45, 51 (1st

Cir. 2003). We may also take into account "what the late

disclosure portends for the court's docket." Id.

In this situation, some factors weigh in favor of the

plaintiff. He did not have a history of noncompliance with the

district court's orders and his need for causation evidence was

great. Those factors, however, comprise only part of the story.

The plaintiff offered absolutely no justification for the

late designation. In addition, the district court pushed back the

trial date more than once in a painstaking attempt to determine

whether the plaintiff could make out a triable issue on causation. 

Throughout this process, the plaintiff gave no hint that he

believed he had designated any causation expert other than Dr.

Tikoo. Although he knew for many months that the defendants were

challenging the admissibility of Dr. Tikoo's testimony, he took no

steps to designate either Dr. Walsh or Dr. Hussein as a backup. A

party who knowingly chooses to put all his eggs in one basket is

hard-pressed to complain when the basket proves inadequate and the

trial court refuses to allow him to substitute a new and previously

undisclosed basket for it.

-33-
The sockdolager, of course, is the extreme prejudice that

would have attended an eleventh-hour decision to allow the

plaintiff to convert two fact witnesses into experts on causation. 

The deadline for designating the plaintiff's experts expired on

March 30, 2010, and discovery closed on August 16 of that year. 

From that date forward, the defendants pursued litigation

strategies based on their justifiable understanding that Dr. Tikoo

was the plaintiff's only causation expert. Their strategic

direction was made manifest by the filing in tandem of a motion to

exclude Dr. Tikoo's testimony and a motion for summary judgment

premised on the plaintiff's inability, without that testimony, to

prove causation.

It was not until March of 2011 — nearly a year after the

deadline for designating experts, seven months after discovery

closed, three months after the exclusion of Dr. Tikoo's testimony,

and a mere month before the scheduled start of trial — that the

plaintiff for the first time claimed that Drs. Walsh and Hussein

had been designated all along to provide expert testimony on

causation. It strains credulity to explain the plaintiff's actions

as anything other than a Hail Mary pass to resurrect a case fatally

wounded by Dr. Tikoo's exclusion.

The district court dealt with this complicated case for

several years. When faced with an egregious discovery violation,

it weighed the relevant factors and made a sensible (though not

-34-
inevitable) choice of sanctions. We cannot, from the remote vista

of an algid appellate record, second-guess that choice. We hold,

therefore, that the sanction imposed, though severe, was within the

realm of the district court's discretion.

There remains the plaintiff's optimistic assertion that

Drs. Walsh and Hussein should have been allowed to testify on

causation regardless of whether they were designated as experts

with respect to that subject. He offers a different rationale for

each of those physicians. Dr. Walsh worked for the Hospital, and

the plaintiff argues that her views regarding the effectiveness of

t-PA are admissions of a party-opponent, see Fed. R. Evid.

801(d)(2), and admissible on that basis. As to Dr. Hussein, the

plaintiff suggests that the statement about causation contained in

the "to whom it may concern" letter and other statements should be

admitted because they come within the class of statements made for

the purpose of medical diagnosis or treatment. See Fed. R. Evid.

803(4).

These assertions are problematic on their face, but we

need not inquire into them. In a medical malpractice case, Maine

law requires expert testimony on causation unless the causal

connection is a matter of common knowledge and experience. See

Cox, 406 A.2d at 622. Given the complex medical question that

underlies the issue of causation in this instance, expert testimony

was essential. See Cyr, 108 A.2d at 318. Thus, witnesses who were

-35-
not designated to speak as experts on causation, such as Drs. Walsh

and Hussein, could not supply competent proof of causation. 

Consequently, the district court did not abuse its discretion in

excluding the proffered evidence.

E. The Emotional Distress Claim.

It cannot be gainsaid that, absent proof of causation,

the plaintiff's medical malpractice claim failed. Hence, the

defendants were entitled to summary judgment on that claim.

Here, however, the plaintiff advanced a second claim —

for negligent infliction of emotional distress — and he insists

that this claim should have been allowed to go forward. We think

not.

We review a district court's entry of summary judgment de

novo, considering the facts and all inferences therefrom in the

light most hospitable to the non-moving party (here, the

plaintiff). Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d

178, 184 (1st Cir. 1999). Affirmance is warranted if the record

demonstrates "that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law." 

Fed. R. Civ. P. 56(a).

Maine law requires a plaintiff to prove causation as an

element of a claim for negligent infliction of emotional distress. 

See Curtis v. Porter, 784 A.2d 18, 25 (Me. 2001). When such a

claim arises in a medical setting, the Law Court has made it

-36-
pellucid that the claim falls within the ambit of "professional

negligence" under the MHSA. Saunders, 902 A.2d at 832-33; see Me.

Rev. Stat. Ann. tit. 24, § 2502(6). This ensures that form will

not triumph over substance.

The plaintiff in this case had the burden of proving

causation to a reasonable medical probability. Me. Rev. Stat. Ann.

tit. 24, § 2502(7). The only damages alleged by the plaintiff

incident to his claim for negligent infliction of emotional

distress relate to the emotional suffering and depression resulting

from his failure to recover from the incipient stroke. As we 8

already have explained, the plaintiff could not prove to a

reasonable medical probability that his injuries were caused by the

defendants' failure to administer t-PA. See supra Part II(C). It

follows inexorably that he could not carry his burden of proof on

the issue of whether the wholly congruent failure to administer tPA caused the emotional damages he suffered as a result of those

injuries.

At oral argument in this court, plaintiff's counsel asserted 8

that his client had suffered emotional damages as a result of the

"fact that [the doctors] failed to even discuss with him the

treatment that was . . . required." The plaintiff has neither

pleaded nor adequately briefed this theory of damages. 

Accordingly, we will not entertain it here. See United States v.

Gertner, 65 F.3d 963, 971 n.7 (1st Cir. 1995); United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

-37-
III. CONCLUSION

We need go no further. The district court handled this

difficult case with commendable skill and, for the reasons

elucidated above, we uphold the judgment that it entered.

Affirmed.

-38-