United States Court of Appeals

For the First Circuit

No. 22-1776

LOURDES RIVERA RODRÍGUEZ; MARIA DE LOS ANGELES RAMOS RODRÍGUEZ; 

and RAFAEL PACHECO RODRÍGUEZ,

Plaintiffs, Appellants,

v.

HOSPITAL SAN CRISTOBAL, INC.; QUALITY HEALTH SERVICES OF PUERTO 

RICO, INC.; IRIS VÉLEZ GARCÍA; ZACARÍAS A. MATEO MINAYA; BERRIS 

CASTILLO; and CONJUGAL PARTNERSHIP MATEO-CASTILLO,

Defendants, Appellees,

FUNDACIÓN SAN CRISTOBAL, INC.; JOHN DOE; CONJUGAL PARTNERSHIP 

DOE-VÉLEZ; CORPORATIONS A, B, AND C; and UNKNOWN INSURANCE 

COMPANY,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]

Before

Barron, Chief Judge,

Lipez and Montecalvo, Circuit Judges.

David Efron, with whom Law Offices of David Efron, P.C. was 

on brief, for appellants.

Jose Hector Vivas, with whom Vivas & Vivas was on brief, for 

appellees Hospital San Cristobal, Inc., and Quality Health 

Services of Puerto Rico, Inc.
José A. González Villamil, with whom Bufete González Villamil 

C.S.P. was on brief, for appellees Zacarías A. Mateo Minaya, Berris 

Castillo, and the Mateo-Castillo conjugal partnership.

Roberto Ruiz Comas and RC Legal & Litigation Services PSC for 

appellee Iris Vélez García.

January 19, 2024
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BARRON, Chief Judge. Lourdes Rivera Rodríguez, Maria de 

Los Angeles Ramos Rodríguez, and Rafael Pacheco Rodríguez

(collectively, "the plaintiffs") appeal from the grant of summary 

judgment against them in this medical malpractice suit. They 

brought the suit in the United States District Court for the 

District of Puerto Rico after their mother, Ramona Rodríguez Rivera

("Rodríguez"), passed away while in the care of Hospital San 

Cristobal ("HSC"). The suit seeks to recover under Puerto Rico 

law for the allegedly negligent care that Rodríguez received at 

HSC during and following an abdominal surgery performed by Dr. 

Iris Vélez García ("Dr. Vélez") and Dr. Zacarías A. Mateo Minaya

("Dr. Mateo"). We affirm.

I.

A.

We begin with a recitation of the undisputed facts and 

relevant procedural history.1

On February 29, 2016, Rodríguez visited HSC complaining 

of pelvic pain. Rodríguez -- who was then seventy-one years old 

and living with several chronic health conditions including 

hypertension, type 2 diabetes, and asthma -- was examined by Dr. 

1 Unless otherwise specified, all quotations in this section 

are drawn from reports prepared by the parties' proffered expert 

witnesses summarizing the medical records from Rodríguez's visits 

to HSC.
- 2 -

Vélez, who had been her regular gynecologist since 2005. Dr. Vélez

recommended that Rodríguez undergo a bilateral oophorectomy via 

laparotomy after a pelvic ultrasound revealed a "complex cystic

mass" near Rodríguez's right ovary. 

Dr. Vélez performed Rodríguez's surgery on April 21, 

2016, at HSC. During the surgery, Dr. Vélez discovered that 

Rodríguez had a "frozen pelvis" with multiple "intraabdominal

adhesions," and so she requested a surgical consultation from Dr. 

Mateo, another gynecologist on HSC's staff. Dr. Mateo assisted 

Dr. Vélez with Rodríguez's surgery. On April 25, 2016, Rodríguez 

was discharged from HSC after HSC staff observed "positive bowel 

sounds" and Rodríguez reported "positive stool passage." 

Four days later, on April 29, during a scheduled 

postoperative appointment with Dr. Vélez at HSC, Rodríguez 

reported that she had been experiencing "nausea, vomiting, and 

abdominal/pelvic pain since April 26." Rodríguez was then admitted 

to HSC's emergency department and was diagnosed with a presumed 

perforated sigmoid colon. Later that day, Rodríguez underwent an 

emergency exploratory laparotomy to address her presumed 

perforated colon, during which Dr. Vélez, Dr. Mateo, and one Dr. 

Ortiz Rosado2 performed a "partial colectomy with Hartman[n] pouch, 

end colostomy[,] and subtotal hysterectomy." Rodríguez was 

2 Dr. Ortiz Rosado is not a party to this suit.
- 3 -

subsequently admitted to HSC's intensive care unit ("ICU") in 

critical condition. She was intubated on a respirator with a 

nasogastric ("NG") tube, a colostomy bag, and a Foley catheter. 

In HSC's ICU, Rodríguez received care from various 

specialists, including Dr. Vélez and staff from HSC's "general 

surgery, internal medicine, infectious disease, cardiology, 

pulmonology, nephrology, hematology/oncology, and ENT" 

departments. Two days after her admission to the ICU, on May 1, 

Rodríguez was diagnosed with "bacteremia/sepsis." Then, on May 4, 

Rodríguez tested positive for pseudomonas bacteria, at which point

HSC's "infection control program became involved" with her care. 

HSC's epidemiology department recommended several specific 

disinfection protocols to treat Rodríguez's pseudomonas infection, 

but "[t]here is no documentation that these recommendations were 

carried out at any time." 

On May 6, HSC staff discovered that Rodríguez's stoma

had become necrotic. Rodríguez consequently underwent a third 

surgical procedure consisting of "an exploratory laparotomy, ileal 

resection, transverse colon loop colostomy, enterography, and 

enteroclysis." Dr. Vélez and Dr. Ortiz Rosado performed this third 

surgery. Rodríguez was then returned to the ICU, where she 

continued to receive care from HSC staff. 

On May 12, nursing and infectious-disease staff noted

"the presence of worms and/or maggots in the right nostril of 
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[Rodríguez], where the NG tube was located." A CT scan of 

Rodríguez's sinuses was ordered, but there was otherwise "little 

to no documentation of [any] consultations regarding the presence 

of worms nor any analysis of the source of these worms." 

On May 15, it was "documented that [Rodríguez's] fecal 

collector [was] out of place." The following day, HSC staff noted 

that the fecal collector "continue[d] to be displaced and that 

there [was] abundant fecal material around the site [of the fecal 

collector] as well as coming from" an "open wound" near the site.

On May 18, two types of bacteria were detected in 

cultures of fluid taken from Rodríguez's abdomen. That same day, 

HSC staff noted that Rodríguez was "no longer responding to verbal 

or physical stimuli." By the following afternoon, HSC staff 

determined that Rodríguez could not undergo a planned fourth 

procedure "due to worsening of her condition," and they obtained 

a "Do Not Resuscitate" order from Rodríguez's family. Rodríguez 

died later that evening, at 8:48 P.M. on May 19, 2016. 

An autopsy determined that Rodríguez's cause of death 

was "peritonitis due to sigmoid colon perforation with associated 

sepsis and septic shock. Complicating factors were congestive 

heart failure, bilateral bronchopneumonia, and diabetic 

ketoacidosis." The autopsy also showed "multiple pressure ulcers" 

on Rodríguez's body. 
- 5 -

B.

The plaintiffs filed suit in the District Court on May 

11, 2018. The operative complaint named as defendants Quality 

Health Services of Puerto Rico, Inc., doing business as HSC

("Quality Health/HSC"); Dr. Vélez; Dr. Mateo; Dr. Mateo's wife,

Berris Castillo; the Mateo-Castillo conjugal partnership; and 

several other individuals and corporations "whose identities 

[were] unknown, [but who] by their negligent acts or omissions 

caused or contributed to the damages claimed."3 

The operative complaint asserted that "[HSC] and [its]

personnel, including [Dr. Vélez] and [Dr. Mateo], were practicing 

below the standard of care in the treatment" that they provided to 

Rodríguez, and that Rodríguez's "premature death . . . was caused 

by the negligent management of her condition." The complaint

alleged several departures from "medical standards" and instances 

of "professional negligence" in the defendants' care of Rodríguez 

which "include[d], but [were] not limited to": 

failure to recognize, appropriately asses[s]

and repair damage to any organs involved in or 

near the operative field prior to closing the 

abdomen; failure to recognize that Mrs. 

Rodríguez’s sigmoid colon was damaged in this 

circumstance and to perform an appropriate 

repair procedure to assure sigmoid colon 

integrity before abdominal closure; failure in 

the proper management of hygiene by the 

3 The plaintiffs also named as a defendant, but later 

voluntarily dismissed, Fundación San Cristobal, Inc. 
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hospital staff in the care of Mrs. Rodríguez; 

failure in the documentation of the findings; 

failure to manage the infectious processes 

suffered by the patient; failure to manage the 

patient's pre-existing condition of diabetes 

which likely exacerbated her condition and 

accelerated her demise; failure to timely 

correct the displacement of the fecal 

collector[;] and failure to manage the 

patient's care by presenting multiple pressure 

ulcers at autopsy due to the fact that 

apparently the staff did not make changes in 

the patient's position in the required time.

The plaintiffs claimed that these alleged deficiencies in the care 

provided to Rodríguez made the defendants liable for negligence

under Puerto Rico law. See P.R. Laws tit. 31, §§ 5141, 5142. The 

plaintiffs sought $3 million in damages for pain and suffering. 

C.

To establish a prima facie case of negligence under 

Puerto Rico law, "a plaintiff must establish (1) the duty owed 

(i.e., the minimum standard of professional knowledge and skill 

required in the relevant circumstances), (2) an act or omission 

transgressing that duty, and (3) a sufficient causal nexus between 

the breach and the claimed harm.” Cortéz-Irizarry v. Corporación 

Insular de Seguros, 111 F.3d 184, 189 (1st Cir. 1997). In cases 

of alleged medical malpractice, "Puerto Rico holds health care 

professionals to a national standard of care." Id. at 190.

Under Puerto Rico law, "physicians are protected by a 

presumption to the effect that they have exercised a reasonable 

degree of care and the treatment provided was adequate." López 
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Delgado v. Cañizares, 163 P.R. Dec. 119 (2004) (certified 

translation at Appellant's App. 247). Thus, "[a] physician's 

negligence is not presumed from the fact that a patient suffered 

damages or the treatment was unsuccessful." Id. Instead, to 

establish "a breach of a physician's duty of care," a plaintiff

"ordinarily must adduce expert testimony to limn the minimum 

acceptable standard and confirm the defendant doctor's failure to 

meet it." Cortéz-Irizarry, 111 F.3d at 190.

In preparation for trial, the District Court ordered the 

parties to submit a joint pretrial conference memorandum outlining 

the contours of the case and the evidence that they would present

at trial. The plaintiffs indicated in the memorandum that they 

would rely on the testimony of an expert witness, Dr. Jason S. 

James ("Dr. James"), to establish the defendants' negligence. The 

plaintiffs asserted that Dr. James would 

testify as a medical expert in obstetrics, 

gynecology[,] and general medicine about his 

professional qualifications, his review of the 

medical records in this case, the applicable 

medical standards, his expert report and 

deposition testimony, the reports of 

defendants' experts, his professional opinion 

as to the departures from the medical 

standards by defendants in the treatment 

provided to [Rodríguez] and their causal 

relationship with [Rodríguez's] injuries and 

premature death[,] and about any applicable 

medical literature in support of his opinion.

The plaintiffs also "reserve[d] the right to use as their own any 

expert witness announced by the defendants."
- 8 -

Dr. Vélez and Dr. Mateo represented that they would each 

call an expert witness of their own, and Quality Health/HSC 

represented that it would call its own expert witness as well. 

Dr. Vélez represented that her expert, Dr. Adrián Colón Laracuente, 

would testify as to Dr. Vélez's treatment of Rodríguez "from the 

gynecological and surgical standpoint . . . and her compliance 

with the standard of care." Dr. Mateo represented that his expert, 

gynecological specialist Dr. Alfredo S. Colón Martínez, would 

testify "regarding his opinion that Dr. Mateo complied with all 

the applicable medical standards while providing assistance during 

the two surgical interventions to [Rodríguez] in which his 

assistance was requested." Quality Health/HSC represented that 

its expert, internist Dr. Anibelle Altieri Ramirez, would testify 

as to "the standard of care applicable to this case, the 

correctness of the treatment given to" Rodríguez by HSC staff, 

"and that such treatment did not cause [the] plaintiff[s']

damages." 

Following a pretrial conference, the District Court 

referred the case to a magistrate judge for mediation. Mediation 

was unsuccessful, in part because the defendants represented at 

the settlement conference that they intended to file motions in 

limine, the resolution of which had the potential to affect the 

parties' settlement efforts. 
- 9 -

Two separate motions in limine were filed -- one by 

Quality Health/HSC and the other by Dr. Mateo, Berris Castillo, 

and the Mateo-Castillo conjugal partnership, joined by Dr. Vélez. 

The motions sought to exclude the expert opinion testimony of the 

plaintiffs' expert, Dr. James. Both motions argued that Dr. 

James's testimony must be excluded because his expert report did 

not comply with Federal Rule of Civil Procedure 26(a) and because, 

even if the report did, the plaintiffs had not met their burden 

under Federal Rule of Evidence 702 to show that his testimony was 

admissible. 

Federal Rule of Civil Procedure 26 requires parties in 

civil cases to disclose their witnesses. Rule 26(a)(2)(B) requires

that the disclosure of any witness "retained or specially employed 

to provide expert testimony" include a written report prepared and 

signed by the expert witness which "must contain," among other 

requirements, "a complete statement of all opinions the witness 

will express and the basis and reasons for them." Rule 26(e)(2) 

then requires that the proponent of an expert witness "supplement" 

their initial disclosure to alert opposing parties to any

subsequent "additions or changes" to the content of the expert's 

testimony. Federal Rule of Civil Procedure 37(c)(1), meanwhile,

provides that "[i]f 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 
- 10 -

on a motion, at a hearing, or at a trial, unless the failure was 

substantially justified or is harmless." 

Federal Rule of Evidence 702 governs the admissibility 

of expert opinion testimony. It provides that a qualified expert 

witness "may testify in the form of an opinion or otherwise" only 

if the party seeking to introduce the witness's testimony 

demonstrates by a preponderance of the evidence that (a) the 

witness's "scientific, technical, or other specialized knowledge 

will help the trier of fact to understand the evidence or to 

determine a fact in issue"; (b) "the testimony is based on 

sufficient facts or data"; (c) "the testimony is the product of 

reliable principles and methods"; and (d) "the expert's opinion 

reflects a reliable application of the principles and methods to 

the facts of the case." Fed. R. Evid. 702.

Dr. James's expert report first summarized his

qualifications as a licensed physician and gynecological 

specialist "well versed in the current standards of care applicable 

to the practice of obstetrics and gynecology." Dr. James's report 

stated that, "[i]n this matter, [his] opinions [were] based on 

[certain enumerated] medical records and documents . . . and on 

reliable and accepted scientific principles to a reasonable degree 

of medical certainty." The report next stated that Dr. James had 

reviewed the hospital records associated with Rodríguez's stays at 

HSC between April 21 and April 25, 2016, and between April 29 and 
- 11 -

May 19, 2016, as well as Dr. Vélez's office records pertaining to 

her care of Rodríguez since 2005. The report then recited the 

facts of Rodríguez's case and closed with Dr. James's "Comment" on 

the case. In that "Comment" section, Dr. James wrote:

Based on the medical documents submitted, it 

appears that [Rodríguez] expired from sepsis 

and septic shock, a condition caused by the 

perforated sigmoid colon that occurred in the 

initial surgery on April 21, 2016 performed by 

Dr. [Vélez] and Dr. [Mateo]. This patient 

encountered several organisms throughout her 

various organ systems: Klebsiella pneumonia, 

Pseudomonas aeruginosa, and Enterococcus 

faecalis in the blood, in the inguinal and 

perianal secretions, in the urine, in the 

colostomy, and in the throat, as noted in the 

autopsy report. In addition, the most 

surprising finding was the worms and/or 

maggots that were noted to be present in the 

nostril of the patient where the NG tube was 

placed. There is little room for doubt 

regarding the inappropriate nature and poor 

hygiene which was utilized by the hospital 

personnel in caring for [Rodríguez]. There is 

poor documentation regarding this unusual 

discovery and no evidence that appropriate 

precautions were taken to prevent this 

occurrence or to remedy the situation once it 

was realized. There is no evidence of 

appropriate disinfection of the hospital room, 

equipment, hospital staff, and the patient 

herself as recommended by infectious disease 

and epidemiology. In addition, there appears 

to be poor management of [Rodríguez's] medical 

comorbidities, such as inadequate care for her 

diabetes which likely exacerbated her 

condition and accelerated her demise. It 

appears that her fecal collector remained out 

of place for more than 24 hours after 

discovering it had become dislodged, allowing 

fecal material to contaminate the stoma as 

well as the open wound itself. Further, there 

is evidence on autopsy of multiple pressure 
- 12 -

ulcers, which lends further evidence of the 

substandard care that [Rodríguez] received 

during her admission at [HSC]. 

In conclusion, it is my opinion -- based upon 

a reasonable degree of medical 

certainty -- that in the case discussed above 

there were numerous deviations, failures, and 

departures from acceptable standards of care 

on the part of Dr. [Vélez], Dr. Mateo, as well 

as on the part of [HSC] and its staff. 

In their motions to exclude Dr. James's expert testimony

under Rule 26, the defendants argued that Dr. James's expert report 

"fail[ed] to state the totality of his opinions in this case . . . 

considering the scope of the testimony stated in the Pretrial 

Report and which [the p]laintiffs apparently intend[ed] to present 

at trial." The defendants further contended that the report "[did] 

not state the applicable standards of care; [did] not specify 

whether the standards of care are applicable on a national basis; 

[did] not state how the applicable standards were specifically 

breached"; did not explain how the defendants' "alleged negligence 

caused and/or contributed to [Rodríguez's] condition and demise"; 

and was "conspicuously lacking in reference or citations to medical 

literature." Accordingly, the defendants argued that Dr. James's 

testimony had to be excluded under Rule 37(c).

Alternatively, the defendants argued that Dr. James's 

testimony should be "excluded as speculative" under Federal Rule 

of Evidence 702. They contended that was so because Dr. James's

expert report did not articulate either a "[s]cientifically 
- 13 -

acceptable methodology" or "the bases and foundations that 

underlie [his] expert opinion" and because nothing else in the 

record enabled the plaintiffs to meet their burden to show that 

his testimony was admissible under Rule 702. 

The plaintiffs opposed the defendants' motions to 

exclude Dr. James's testimony. The plaintiffs did not request, 

however, that the District Court hold a hearing on the merits of 

the motions at which Dr. James could testify. Nor did they request 

leave to supplement Dr. James's expert report. Instead, the 

plaintiffs argued that the entirety of Dr. James's proposed 

testimony was admissible based on the expert report itself.

The District Court granted the defendants' motions to 

exclude Dr. James's testimony. In so ruling, the District Court 

relied entirely on Federal Rule of Evidence 702. 

As to Dr. Vélez's and Dr. Mateo's motion under Rule 702 

to exclude Dr. James's testimony, the District Court reasoned that

Dr. James's expert report "conclude[d] as a matter of fact that 

Dr. Vélez and Dr. Mateo 'perforated' [Rodríguez's] sigmoid colon 

during the first surgery on April 21, 2016" but provided "no 

explanation" for that conclusion, instead "seemingly assum[ing] 

that Dr. Vélez and Dr. Mateo did so because [Rodríguez] returned 

to [HSC] complaining of pelvic pain some days after being 

discharged" and was found to have had a perforated sigmoid colon 

at that time. The District Court held that that assumption was 
- 14 -

"not enough for a finding that Dr. Vélez and Dr. Mateo perforated 

the colon." The District Court further observed that although Dr. 

James "conclude[d that] Dr. Vélez and Dr. Mateo deviated from 

acceptable standards of care," his report did not "state what those 

standards are, nor where they come from[, nor] how Dr. Vélez and 

Dr. Mateo deviated from them." 

As to Quality Health/HSC's motion under Rule 702 to 

exclude Dr. James's testimony, the District Court concluded that 

Dr. James's opinions regarding the alleged negligence of HSC staff 

"fare[d] no better" than his opinions regarding the alleged 

negligence of Drs. Mateo and Vélez. And that was so, the District 

Court explained, even though the report pointed to several alleged 

departures from acceptable standards of care, because "nowhere in 

[his] report [did] Dr. James identify the standard of care that 

[HSC's] hospital staff should have adhered to; where that standard 

comes from; and how the staff deviated from that standard." 

At the same time that the District Court granted the 

defendants' motions to exclude Dr. James's testimony under Rule 

702, the District Court also granted the defendants' requested 

leave to move for summary judgment within ten days. Dr. Mateo, 

Berris Castillo, and the Mateo-Castillo conjugal partnership moved 

for summary judgment seven days later, which motion Dr. Vélez 

joined; Quality Health/HSC filed its own motion for summary 

judgment two days later. 
- 15 -

The plaintiffs opposed both motions for summary 

judgment, arguing that even if Dr. James's testimony were excluded, 

they could rely on the testimony of the defendants' expert 

witnesses to prove their case. In the alternative, the plaintiffs 

asked the District Court to reconsider its ruling excluding Dr. 

James's expert testimony, as they contended that the defendants 

were not entitled to summary judgment if Dr. James's testimony 

were not excluded. 

The District Court denied the plaintiffs' request for 

reconsideration, granted the defendants' motions for summary 

judgment, dismissed the plaintiffs' claims with prejudice, and 

entered judgment in favor of the defendants. The plaintiffs timely 

appealed the District Court's entry of summary judgment. 

II.

We first address the plaintiffs' challenge to the 

District Court's grant of summary judgment to Dr. Vélez and Dr. 

Mateo. "'To defeat a motion for summary judgment, the nonmoving 

party must demonstrate the existence of a trialworthy issue as to 

some material fact,' i.e., a fact that 'potentially could affect 

the suit's outcome.'" López-Ramírez v. Toledo-González, 32 F.4th 

87, 97 (1st Cir. 2022) (quoting Cortéz-Irizarry, 111 F.3d at 187). 

To make this showing, a plaintiff "must affirmatively point to 

specific facts that demonstrate the existence of an authentic 

dispute." Feliciano-Muñoz v. Rebarber-Ocasio, 970 F.3d 53, 62 
- 16 -

(1st Cir. 2020) (quoting McCarthy v. Nw. Airlines, Inc., 56 F.3d 

313, 315 (1st Cir. 1995)). Our review of the summary judgment 

ruling here is de novo. See Milward v. Rust-Oleum Corp. (Milward 

II), 820 F.3d 469, 472-73 (1st Cir. 2016).

The District Court based its ruling that Drs. Mateo and 

Vélez were entitled to summary judgment in part on its decision to 

exclude Dr. James's expert testimony under Rule 702. The 

plaintiffs now contend that this Rule 702 ruling was in error. 

The plaintiffs do not suggest in advancing that contention, 

however, that they can meet their burden to show that Dr. James's 

testimony is admissible under Rule 702 based on anything extrinsic 

to his expert report.4 The plaintiffs simply contend based on the 

report itself that the District Court abused its discretion in 

ruling that the plaintiffs had failed to meet that burden.5 The

plaintiffs then go on to contend, in the alternative, that we must 

4 The plaintiffs assert as part of their challenge to the 

District Court's Rule 702 ruling that the District Court's decision 

to exclude Dr. James's report altogether after finding it deficient 

was "too extreme of a sanction" -- but they conceded at oral 

argument that they never requested leave to amend Dr. James's 

expert report to cure its alleged deficiencies, and they point to 

no authority suggesting that the District Court should have sua 

sponte granted them leave to do so before excluding the testimony.

5 Although the plaintiffs argue that the District Court erred 

by not holding a Daubert hearing on the admissibility of Dr. 

James's testimony before granting the defendants' motions in 

limine to exclude it, the contention fails for the same reasons we 

rejected a similar contention in González-Arroyo v. Doctors' 

Center Hospital Bayamón, Inc., 54 F.4th 7, 15 (1st Cir. 2022). 
- 17 -

overturn the summary judgment ruling even if the District Court's 

Rule 702 determination was not error. And that is so, they 

contend, because of evidence in the record that is independent of 

Dr. James's testimony. For the reasons set forth below, we 

conclude that the plaintiffs' grounds for challenging the summary 

judgment ruling have no merit. 

A.

To assess the plaintiffs' challenge to the summary 

judgment ruling at issue, it helps to focus first on the aspect of 

that challenge that concerns the District Court's ruling excluding

Dr. James's testimony under Rule 702. To do so, we begin by 

reviewing the requirements that Rule 702 sets forth before then 

turning back to the District Court's Rule 702 ruling. With that 

foundation in place, we then will be well-positioned to explain 

why the plaintiffs' challenge to the grant of summary judgment to 

Dr. Vélez and Dr. Mateo fails. 

1.

Rule 702 provides in full that:

A witness who is qualified as an expert by 

knowledge, skill, experience, training, or 

education may testify in the form of an 

opinion or otherwise if the proponent 

demonstrates to the court that it is more 

likely than not that: 

(a) the expert's scientific, technical, or 

other specialized knowledge will help the 

trier of fact to understand the evidence or to 

determine a fact in issue;
- 18 -

(b) the testimony is based on sufficient facts 

or data;

(c) the testimony is the product of reliable 

principles and methods; and

(d) the expert’s opinion reflects a reliable 

application of the principles and methods to 

the facts of the case.6

Rule 702, in its present form, incorporates the 

reasoning of the Supreme Court of the United States in Daubert v. 

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See Fed. 

R. Evid. 702 advisory committee's notes to 2000 amendment. There, 

the Court construed an earlier version of the rule and explained 

that it assigns a "gatekeeping role for the judge" to determine 

whether "an expert's testimony both rests on a reliable foundation 

and is relevant to the task at hand." Daubert, 509 U.S. at 597. 

As a result, the present version of Rule 702 "affirms 

the trial court's role as gatekeeper and provides some general 

standards that the trial court must use to assess the reliability 

and helpfulness of proffered expert testimony." Fed. R. Evid. 702 

advisory committee's notes to 2000 amendment. To that end, the 

present version of the rule establishes that expert testimony may 

6 This is the current version of Rule 702, which went into 

effect on December 1, 2023. See Fed. R. Evid. 702 advisory 

committee's notes to 2023 amendment. However, the application of 

the rule to this case is not affected by the 2023 changes. See

Fed. R. Evid. 702 (2011) (amended 2023).
- 19 -

be admitted into evidence only if it is "based on sufficient facts 

or data," is "the product of reliable principles and methods," and 

"reflects a reliable application of the principles and methods to 

the facts of the case." Fed. R. Evid. 702. 

Moreover, in applying Rule 702, we continue to draw on 

Daubert's reasoning. See, e.g., Milward v. Acuity Specialty Prods. 

Grp., Inc., (Milward I), 639 F.3d 11, 14 (1st Cir. 2011). Thus, 

"[t]he focus" of the inquiry into the admissibility of expert 

testimony under Rule 702 "must be solely on principles and 

methodology, not on the conclusions that they generate." Daubert,

509 U.S. at 595. This distinction means that "[w]hen the factual 

underpinning of an expert's opinion is weak, it is a matter 

affecting the weight and credibility of the testimony" and thus "a 

question to be resolved by the jury." Milward I, 639 F.3d at 22 

(citation omitted).

At the same time, "nothing in either Daubert or the 

Federal Rules of Evidence requires a district court to admit 

opinion evidence that is connected to existing data only by the 

ipse dixit of the expert." Gen. Elec. Co. v. Joiner, 522 U.S. 

136, 146 (1997). Indeed, Daubert made clear that to be admissible 

under Rule 702, an expert's opinion "must be supported by 

appropriate validation" and rest on "more than subjective belief 

or unsupported speculation." 509 U.S. at 590. Thus, in assessing 

whether the expert opinion has the requisite validation for 
- 20 -

purposes of Rule 702, a court may conclude that it does not 

because, given the record at hand, "there is simply too great an 

analytical gap between the data and the opinion proffered." 

Joiner, 522 U.S. at 146. 

We note that "[t]he party seeking to introduce the 

evidence has the burden of establishing both its reliability and 

its relevance," Milward II, 820 F.3d at 473 (citing Daubert, 509 

U.S. at 593 n.10), and that we review a district court's ruling on 

the admissibility of expert testimony under Rule 702 for abuse of 

discretion, assessing "[p]redicate factual findings" for "clear 

error" and "pure questions of law . . . de novo," id. at 472.

2.

In its ruling under Rule 702 concerning Dr. James's 

testimony, the District Court explained that Dr. James's expert 

report asserted two opinions about the alleged negligence of Drs. 

Mateo and Vélez: that "Dr. Vélez and Dr. Mateo 'perforated' 

[Rodríguez's] sigmoid colon during the first surgery on April 21, 

2016," and that "Dr. Vélez and Dr. Mateo deviated from acceptable 

standards of care" in their treatment of Rodríguez. The District 

Court then determined that Dr. James's testimony setting forth 

those two opinions was inadmissible under Rule 702, excluding on 

that basis the entirety of Dr. James's testimony as to Dr. Vélez 

and Dr. Mateo. 
- 21 -

Notably, by excluding all of Dr. James's expert 

testimony as to those two defendants, the District Court excluded 

Dr. James's testimony concerning his opinion that, "[b]ased on the 

medical documents submitted, it appears that [Rodríguez] expired 

from sepsis and septic shock, a condition caused by the perforated 

sigmoid colon that occurred in the initial surgery on April 21, 

2016 performed by [Dr. Vélez and Dr. Mateo]." The District Court

appears to have done so because it treated Dr. James's opinion in 

that regard as if it were a "conclu[sion] as a matter of fact that 

Dr. Vélez and Dr. Mateo 'perforated'" Rodríguez's sigmoid colon 

during the April 21 surgery. Rivera Rodríguez v. Quality Health 

Servs. P.R., Civ. No. 18-1287 (PAD), 2022 WL 3445348, at *4 (D.P.R. 

Aug. 4, 2022).

To support that aspect of the Rule 702 determination, 

the District Court explained that "Dr. James seemingly assume[d] 

that Dr. Vélez and Dr. Mateo [perforated Rodríguez's colon] because 

[Rodríguez] returned to [HSC] complaining of pelvic pain some days 

after being discharged from her first surgery [and] it was 

ultimately discovered that she had a perforated colon." Id. But, 

the District Court explained, such an assumption was "not enough 

[to support] a finding that Dr. Vélez and Dr. Mateo perforated the 

colon[.]" Id. The District Court then supported that 

determination in a footnote by stating that "Dr. James's conclusion 

[was] contradicted by the medical record" because, several days 
- 22 -

after the April 21 surgery, on "April 25, 2016, [Rodríguez] was 

tolerating a regular diet and passing flatus and stool normally 

and was deemed ready for discharge." Id. at *4 n.3. Yet, the 

District Court reasoned, Dr. James "inexplicably state[d] that Dr. 

Vélez and Dr. Mateo perforated [Rodríguez's] colon" on April 21. 

Id.

There is some force to the plaintiffs' contention that 

the District Court erred in this aspect of its ruling under Rule 

702 because it wrongly based the ruling on its own assessment of 

the "factual underpinning" of the opinion by Dr. James that was 

excluded. Daubert, 509 U.S. at 595. As Daubert makes clear, 

questions about the strength of "the factual underpinning of an 

expert's opinion" are "matter[s] affecting the weight and 

credibility of the testimony" and therefore "a question to be 

resolved by the jury." Id.

Moreover, the District Court appears to have understood 

that Dr. James's testimony would set forth the opinion that Dr. 

Vélez and Dr. Mateo perforated the colon during the surgery on 

April 21, rather than merely that the colon was perforated during 

that surgery. While the District Court explained its reasons for 

concluding that testimony by Dr. James that those defendants

perforated the colon at that time was not admissible under Rule 

702, it gave no reason for concluding that Rule 702 barred Dr. 

James from simply testifying that the colon was perforated then, 
- 23 -

without explicitly attributing the act of perforation to either of 

those defendants. 

Dr. James's expert report, however, opines only that the 

perforation of Rodríguez's sigmoid colon occurred in the initial 

surgery on April 21. It does not assert at any point that the 

perforation occurred due to any action that either Dr. Mateo or 

Dr. Vélez took at that time -- or, for that matter, at any other 

time. Indeed, in that respect, the report accords with the 

plaintiffs' operative complaint, which also does not allege at any 

point that Dr. Vélez or Dr. Mateo acted negligently by perforating 

Rodríguez's colon. Instead, the operative complaint alleges that 

their negligence lay in their "failure to recognize, appropriately 

assess and repair damage to any organs involved in or near the 

operative field prior to closing the abdomen" and their "failure 

to recognize that [Rodríguez’s] sigmoid colon was damaged in this 

circumstance and to perform an appropriate repair procedure to 

assure sigmoid colon integrity before abdominal closure." 

Despite these potential problems with the District 

Court's analysis of the admissibility of this specific portion of 

Dr. James's expert testimony under Rule 702, we reject the 

plaintiffs' separate contention that the District Court abused its 

discretion in excluding Dr. James's broad conclusion that "Dr. 

Vélez and Dr. Mateo deviated from acceptable standards of care" in 

their treatment of Rodríguez. With respect to that aspect of the 
- 24 -

District Court's ruling under Rule 702, Dr. James's report

identifies no national standard of care against which those 

defendants' assertedly negligent acts or omissions could be 

measured by the trier of fact. There also is no other basis in 

the record for concluding by a preponderance of the evidence that 

Dr. James's opinion that Dr. Vélez and Dr. Mateo acted negligently

is "the product of reliable principles and methods." Fed. R. Evid. 

702(c). We thus agree with Dr. Vélez and Dr. Mateo that the 

District Court correctly concluded that Dr. James's opinion that

"Dr. Vélez and Dr. Mateo deviated from acceptable standards of 

care" in their treatment of Rodríguez could "only be construed as 

one based on a res ipsa loquitur inference, an inference 

insufficient to withstand scrutiny in this setting." Rivera 

Rodríguez, 2022 WL 3445348, at *4 (citing López-Ramírez v. Grupo 

Hima San Pablo, Inc., Civ. No. 16-3192 (RAM), 2020 WL 365554, at 

*5 (D.P.R. Jan. 22, 2020) ("[I]n the context of determining the 

admissibility of expert testimony, proffered testimony that 

consists solely of a res ipsa loquitur opinion would lack the 

reliable methodology and specialized information required by Fed. 

R. Evid. 702."), aff'd López-Ramírez, 32 F.4th 87).

The question that now remains, with respect to the 

plaintiffs' challenge to the grant of summary judgment to Dr. Vélez

and Dr. Mateo, is whether that challenge has merit, given that the 

District Court properly excluded Dr. James's conclusion that Drs. 
- 25 -

Vélez and Mateo deviated from acceptable standards of care. As we 

will next explain, we conclude that the answer is that the 

challenge has none.

3.

To be sure, as we have explained, it may be that 

testimony from Dr. James that Rodríguez's colon was perforated 

during the April 21 surgery was wrongly excluded under Rule 702. 

But even if we were to assume as much, there still would be no 

basis in the record from which a reasonable juror could conclude

that Dr. Vélez and Dr. Mateo were negligent as alleged, given that 

the District Court did not err in excluding Dr. James's testimony 

that "Dr. Vélez and Dr. Mateo deviated from acceptable standards 

of care" in their treatment of Rodríguez.

We recognize that the plaintiffs do contend that the 

District Court's grant of summary judgment was in error because, 

even without Dr. James's opinion as to Dr. Vélez's and Dr. Mateo's 

negligence, the plaintiffs could have relied at trial on the 

testimony of the defendants' expert witnesses to "help the jury to 

determine both the proper standards of care and the causal nexus 

between [the] defendants' negligence and [the p]laintiffs' 

damages." To support this contention, the plaintiffs point out

that none of the defendants' expert witnesses' reports expressly 

refutes Dr. James's conclusion that Rodríguez "expired from sepsis 
- 26 -

and septic shock, a condition caused by the perforated sigmoid 

colon that occurred in the initial surgery on April 21, 2016." 

In granting the defendants' motions for summary 

judgment, however, the District Court determined that it was 

"irrelevant whether [the] defendants' experts' reports . . . 

refute Dr. James'[s] conclusion" that Rodríguez's sigmoid colon 

was perforated during her initial surgery.7 As the District Court 

noted, all of the defendants' experts opined that the "defendants' 

actions did not deviate from the standards of care." As such, the 

District Court concluded that the defense experts' trial testimony 

would not "align . . . with [the] plaintiffs' legal theories or 

otherwise lend any support to their case." And, upon a thorough 

review of the evidentiary record, we find no basis on which to 

disagree with the determination that Dr. Vélez and Dr. Mateo were 

entitled to summary judgment. 

7 We note that the District Court gave as one ground for 

rejecting this challenge to the grant of summary judgment the 

absence of any evidence in the record that would permit a 

reasonable juror to find that the colon was perforated on April 

21. But, for the reasons we have explained, there would be such 

evidence in the record if the District Court erred in excluding

under Rule 702 Dr. James's opinion as to when the colon was 

perforated. Thus, we address above the District Court's grounds 

for rejecting the plaintiffs' challenge to its summary judgment 

ruling on the understanding that such evidence would be in the 

record, as, for present purposes, we are assuming it was error to 

exclude that aspect of Dr. James's testimony. 
- 27 -

None of the defendants' experts' reports sets forth any 

opinion that would support the plaintiffs' theory that any 

negligent act or omission by Dr. Vélez or Dr. Mateo caused 

Rodríguez's decline and/or her premature death. In his report, 

Dr. Mateo's proffered expert, Dr. Alfredo S. Colón Martínez,

concluded that Dr. Mateo's "involvement in this complicated case 

[did] not deviate[] from the standards of care" applicable to the 

procedures in which he participated. And Dr. Vélez's proffered 

expert, Dr. Adrián Colón Laracuente, concluded in his report that 

Dr. Vélez "did not deviate from the standard of care in her 

treatment" of Rodríguez. 

True, if the District Court had admitted Dr. James's 

opinion that Rodríguez's sigmoid colon was perforated during the 

April 21 surgery performed by Drs. Mateo and Vélez, then a 

reasonable trier of fact could have inferred that Rodríguez's 

eventual death from sepsis and septic shock resulted from the 

surgery on that date. But even if the trier of fact could 

reasonably infer causation from that opinion, the record would

still lack any basis for a finding that either Dr. Vélez or Dr. 

Mateo committed any breach of an applicable standard of care that 

led to the perforation of Rodríguez's sigmoid colon during that 

surgery.

Thus, the record in this case contains no "expert 

testimony to limn the minimum acceptable standard and confirm the 
- 28 -

defendant doctor[s'] failure to meet it," as is required to 

"establish[] a breach of a physician's duty of care" under Puerto 

Rico's negligence statute. Cortéz-Irizarry, 111 F.3d at 190. 

Accordingly, we affirm the District Court's grant of summary 

judgment to Dr. Vélez and Dr. Mateo.

III.

Having affirmed the District Court's grant of summary 

judgment to defendants Dr. Vélez and Dr. Mateo, we now must address 

the plaintiffs' challenge to the District Court's grant of summary 

judgment to Quality Health/HSC. Here, too, the plaintiffs base 

their challenge both on a contention that the District Court erred 

in excluding under Rule 702 the expert testimony of Dr. James and, 

in the alternative, on the ground that the District Court erred in 

granting summary judgment to Quality Health/HSC even assuming that 

such testimony was properly excluded. 

In pressing their challenge to this summary judgment 

ruling, the plaintiffs appear to be advancing two distinct theories 

by which their claim of negligence against Quality Health/HSC may 

survive that defendant's motion for summary judgment. One of these 

theories is predicated on HSC staff's alleged failure to utilize 

proper hygiene in their care of Rodríguez. The other is predicated 

on HSC staff's alleged failure to properly manage Rodríguez's 

comorbidity of diabetes. We address each of these theories of 

liability separately, addressing, with respect to each, both the 
- 29 -

plaintiffs' challenge to the relevant Rule 702 ruling as to Dr. 

James's testimony and their contention that, even assuming the 

Rule 702 ruling was sound, the grant of summary judgment to Quality 

Health/HSC was not.

A.

Insofar as the plaintiffs premise their challenge to the 

grant of summary judgment in favor of Quality Health/HSC on HSC 

staff's alleged hygiene-related failures, they do so in part by 

challenging the District Court's decision to exclude Dr. James's 

testimony under Rule 702. The plaintiffs argue that Dr. James's 

expert report "clearly express[ed]" multiple "deficiencies" in HSC 

staff's treatment of Rodríguez. And it is true that several of 

those alleged deficiencies relate to the plaintiffs' allegation 

that HSC staff utilized "inappropriate and poor hygiene at [HSC] 

and in the care of [Rodríguez]." In that regard, the plaintiffs

refer to several facts that Dr. James asserts in his expert report 

leave "little room for doubt regarding the inappropriate nature 

and poor hygiene which was utilized by [HSC] personnel in caring 

for [Rodríguez]" -- such as the presence of "several organisms 

throughout her various organ systems" and "worms and/or maggots" 

in her nostril, the lack of "evidence of appropriate disinfection 

of the hospital room, equipment, hospital staff, and the patient 

herself," and the fact that Rodríguez's "fecal collector remained 

out of place for more than 24 hours." 
- 30 -

Nothing in Dr. James's report purports to opine, 

however, that any of these hygiene-related failures caused 

Rodríguez's decline or premature death. Nor is there any other 

evidence in the summary judgment record that the plaintiffs 

identify that would provide a basis on which a reasonable trier of 

fact could find such causation. And that is true even if we take 

account of the testimony of the defendants' own expert witnesses.

That being so, we do not see how the plaintiffs' 

challenge to the District Court's ruling to exclude Dr. James's 

testimony under Rule 702 provides any support for their challenge 

to the grant of summary judgment to Quality Health/HSC insofar as 

that challenge rests on a claim of negligence owing to HSC staff's 

hygiene-related failures in their care for Rodríguez. After all, 

the plaintiffs' claim of negligence is that the "premature death 

of [Rodríguez] was caused by the negligent management of her 

condition." Accordingly, even if we were to assume that there is 

merit to the plaintiffs' challenge to the District Court's 

exclusionary ruling under Rule 702 with respect to Dr. James's 

testimony concerning the poor hygiene-related practices of HSC 

staff, the plaintiffs' challenge to the grant of summary judgment 

to Quality Health/HSC fails insofar as it rests on the allegation 

that HSC staff's failures in that regard caused Rodríguez's decline 

and premature death.
- 31 -

B.

We turn, then, to the plaintiffs' remaining contention 

as to their challenge to the grant of summary judgment to Quality 

Health/HSC -- a contention that rests on the theory that HSC 

staff's failure to properly manage Rodríguez's comorbidity of 

diabetes led to her decline and premature death. Here, too, the 

plaintiffs contend in part that the District Court erred in 

excluding Dr. James's report under Rule 702. But, once again, 

they also contend in the alternative that, even if that ruling was 

sound, the grant of summary judgment was not because they could 

have relied on other evidence in the record to prove this 

allegation.

With respect to the plaintiffs' challenge to the Rule 

702 ruling, Dr. James's report contains the opinion that "poor 

management of [Rodríguez's] medical comorbidities, such as 

inadequate care for her diabetes[,] likely exacerbated her 

condition and accelerated her demise." With this assertion, Dr. 

James clearly opines that HSC staff's management of Rodríguez's 

diabetes was a cause of her premature death. And he also 

characterizes that management as "poor" and "inadequate." 

Nonetheless, the District Court determined that this 

opinion must be excluded because "nowhere in the report does Dr. 

James identify the standard of care that [HSC] staff should have 

adhered to" in their management of Rodríguez's diabetes; "where 
- 32 -

that standard comes from; and how the staff deviated from that 

standard." We agree. 

In the absence of both an articulated standard of care 

and any specific allegations of acts or omissions by HSC staff 

that deviated from that standard of care, we cannot see that Dr. 

James's opinion that HSC staff's management of Rodríguez's 

diabetes was "poor" and "inadequate" is "the product of reliable 

principles and methods," as Rule 702 requires. Fed. R. Evid. 

702(c). Thus, even if we were to assume that it was error for the 

District Court to have excluded Dr. James's testimony that HSC 

staff's treatment of Rodríguez's diabetes caused her decline and 

premature death, we see no basis for concluding that it was error 

to exclude the portion of Dr. James's opinion that pertains to 

whether that treatment was improper.

This aspect of our assessment of the plaintiffs' 

challenge to the District Court's Rule 702 exclusion ends up being 

dispositive of their summary judgment challenge. That is because, 

with Dr. James's opinion pertaining to a breach of the duty of 

care excluded, there is nothing else in the summary judgment record 

that could make up for it. 

None of the defendants' expert witnesses opines that HSC 

staff's management of Rodríguez's diabetes deviated from any 

applicable standard of care. On the contrary, Quality Health/HSC's 

proffered expert witness, internist Dr. Anibelle Altieri Ramirez, 
- 33 -

opines in her expert report that "at all times relevant to the 

[operative] Complaint, [HSC] personnel acted diligently, 

prudently[,] and reasonably and did not incurred in [sic] negligent 

acts." Thus, without the existence in the record of "expert 

testimony to limn the minimum acceptable standard and confirm the 

defendant doctor[s'] failure to meet it," Cortéz-Irizarry, 111 

F.3d at 190, we affirm the District Court's determination that 

Quality Health/HSC was entitled to summary judgment in its favor 

on the plaintiffs' claim of medical malpractice.

IV.

For these reasons, the judgment of the District Court is 

affirmed.