United States Court of Appeals

For the First Circuit

No. 09-1758

HAZEL I. CRUZ-VÁZQUEZ, ET AL.,

Plaintiffs, Appellants,

v.

MENNONITE GENERAL HOSPITAL, INC., ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., U.S. District Judge]

Before

Torruella, Lipez and Howard, Circuit Judges.

Pedro F. Soler-Muñiz for plaintiffs.

José Héctor Vivas, with whom Vivas & Vivas was on brief, for

defendants Brenda M. Torres Perez, her husband, and their conjugal

partnership.

Roberto Ruiz Comas for defendants Edward Gomez-Torres and the

conjugal partnership Gomez-Torres. 

Anselmo Irizarry-Irizarry, with whom Matta & Matta, PSC Law

Firm was on brief, for defendant General Mennonite Hospital.

July 26, 2010
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LIPEZ, Circuit Judge. In this action filed pursuant to

Puerto Rico's medical malpractice law, Articles 1802 and 1903 of

the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, §§ 5141-42, and

the federal Emergency Medical Treatment and Active Labor Act

("EMTALA"), 42 U.S.C. § 1395dd, the district court excluded the

testimony of the plaintiffs' lone expert witness at trial. As a

result of the court's ruling, the plaintiffs failed to offer proof

on crucial elements of their case, and the district court

consequently granted judgment as a matter of law for the

defendants. The plaintiffs appeal, arguing that the district court

abused its discretion when it excluded the expert testimony and

that its award of judgment for the defendants must be vacated. We

agree.

I.

The plaintiffs brought this action against Mennonite

General Hospital, two physicians, and several others, alleging that

the defendants' negligence caused the premature birth of their

daughter and her death two days later, in violation of Puerto Rico

law. They also alleged that the hospital violated EMTALA when it

failed to follow its own established medical screening protocols in

treating Hazel Cruz-Vázquez.

As part of their case in chief on both the EMTALA and

Puerto Rico law claims, the plaintiffs proposed to introduce

testimony from one expert witness, Dr. Carlos E. Ramírez. The
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plaintiffs disclosed their intention to call Dr. Ramírez at the

scheduling conference held by the district court on June 27, 2008.

In due course, they provided the defendants with a copy of the

expert report prepared by Dr. Ramírez and with a version of his

resume that was current through 2004. Dr. Ramírez was deposed by

counsel for the defendants in November 2008. 

A jury trial began on March 30, 2009. On the fourth day

of trial, the plaintiffs called Dr. Ramírez to testify. In

response to an oral motion by the defendants, however, the court

conducted a Daubert inquiry outside the presence of the jury and

ruled that Dr. Ramírez was not a qualified expert and would not be

permitted to testify. See Daubert v. Merrell Dow Pharm., 509 U.S.

579 (1993). The court then determined that the plaintiffs lacked

evidence to support their claims and granted the defendants' motion

for judgment as a matter of law on that basis.

The plaintiffs appeal. As we have addressed the relevant

law on the admission of expert testimony at some length in our

recent opinion in Pagés-Ramírez v. Ramírez-González, 605 F.3d 109,

113-17 (1st Cir. 2010), we briefly restate our discussion there and

offer a few additional points.

II.

To succeed with a medical malpractice claim, a plaintiff

must introduce evidence on causation and the standard of care in

the relevant medical circumstances. See id. at 113 (listing
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elements of medical malpractice under Puerto Rico law). Almost

invariably, a trier of fact will need expert testimony in order to

determine the applicable standard of care and to make a judgment on

the cause of the injury. Id. Similarly, expert testimony is

generally required to assess certain elements of an EMTALA claim.

See, e.g., Ortiz-Lopez v. Sociedad Española de Auxilio Mutuo y

Beneficiencia de P.R., 248 F.3d 29, 36-37 (1st Cir. 2001) (finding

that "[w]ithout an expert witness through which to enter medical

records or provide an opinion in support of their [EMTALA]

allegations . . . plaintiffs could not satisfy their burden of

proving an EMTALA violation."). For example, as the district court

below noted, without expert testimony, it was impossible to

determine "whether or not Plaintiff Cruz was demonstrating the

symptoms that require activation of Mennonite[] [General

Hospital's] protocol for patients with bleeding during the third

trimester of pregnancy," a necessary finding for the plaintiffs'

EMTALA claim to succeed.

As we explained in Pagés-Ramírez, the judge's task in

determining whether to admit or exclude expert testimony is "to

ensure that the expert's testimony 'both rests on a reliable

foundation and is relevant to the task at hand.'" 605 F.3d at 113

(quoting United States v. Mooney, 315 F.3d 54, 62 (1st Cir. 2002)

(additional quotation marks omitted)). Although a district court

has substantial discretion to make admissibility determinations on
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expert testimony, that discretion is not without bounds. Id. at

112. An expert "with appropriate credentials and an appropriate

foundation for the opinion at issue must be permitted to present

testimony as long as the testimony has a 'tendency to make the

existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be

without the evidence.'" Id. at 115 (quoting Fed. R. Evid. 401).

Generally, if an expert has "scientific, technical, [and] other

specialized knowledge" that "will assist the trier better to

understand a fact in issue," Gaydar v. Sociedad Instituto GinecoQuirurgico y Planificacion Familiar, 345 F.3d 15, 24 (1st Cir.

2003) (quotation marks omitted), and that knowledge "rests on a

reliable foundation," Mooney, 315 F.3d at 62 (quotation marks

omitted), that testimony must be admitted. Pagés-Ramírez, 605 F.3d

at 113-14.

A. Dr. Ramírez's Medical Credentials

Dr. Ramírez received his medical degree in 1981 from the

University of Puerto Rico, Medical Sciences Campus, and completed

an internship in obstetrics and gynecology at the San Juan

University Hospital in the Puerto Rico Medical Center in 1982. As

a resident, from 1982 to 1985, he cared for approximately five

hundred premature labor patients and thousands of non-premature

labor patients. He became board certified in obstetrics and

gynecology in 1987 and was re-certified in 1997. According to Dr.
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Ramírez, he is currently board qualified in those specialties,

although his board certification has expired. As a part-time

faculty member in the Department of Obstetrics and Gynecology, his

duties for a time included serving as an attending physician in

charge of the labor room one day a week at the University of Puerto

Rico Hospital. Dr. Ramírez served as a faculty member in

gynecology and obstetrics for twenty-six years.

In 1985, while Dr. Ramírez was on the faculty at the

University of Puerto Rico Hospital, he and a partner established a

private practice in general obstetrics and gynecology. After an

interlude during which Dr. Ramírez focused in his private practice

on pelvic surgery and gynecology while still treating obstetrics

patients at the hospital, he returned to focus on obstetrics in

1994. For approximately eight years he treated the full range of

obstetrics patients at his practice.

In 2000, after being diagnosed with cancer, Dr. Ramírez

left his private practice. For a time he continued to see patients

at an oncologic hospital. In 2003, however, his cancer returned

and he stopped seeing patients. Since that time, he has served as

a consultant to a company owned by his wife that screens doctors

seeking to provide care to Medicare patients through a health

maintenance program. He has also begun lecturing and doing

research on health law, medical malpractice, and EMTALA, among

other medicine-related subjects. He has served as an expert
 The district court also found that the plaintiffs' failure 1

to provide a copy of Dr. Ramírez's fully up-to-date curriculum

vitae was a violation of Rule 37(c)(1) of the Federal Rules of

Civil Procedure and provided "a sufficient basis for the Court's

decision to exclude Dr. Ramírez's testimony." This secondary

justification for the exclusion of Dr. Ramírez's testimony is

unsupportable. As the district court correctly noted, Rule

37(c)(1) provides that a party who violates the rule may not use

undisclosed information at trial "unless the failure was

substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1).

At oral argument, the defendants conceded that the plaintiffs'

production of Dr. Ramírez's 2004 curriculum vitae, rather than his

2008 curriculum vitae, was not prejudicial to them. They

acknowledged that any additional relevant information provided in

the updated curriculum vitae, such as Dr. Ramírez's activities

since he left medical practice, was known to them. As the

procedural rule itself makes clear, in the absence of harm to a

party, a district court may not invoke the severe exclusionary

penalty provided for by Rule 37(c)(1). This is especially so when,

as was the case here, the exclusion would result in the dismissal

of the plaintiffs' case. See Esposito v. Home Depot U.S.A., Inc.,

590 F.3d 72, 79 (1st Cir. 2009) (finding that when a discovery

sanction "carrie[s] the force of a dismissal, the justification for

it must be comparatively more robust").

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witness in approximately 150 medical malpractice cases in the past

ten years. At the Daubert hearing, he explained that his most

recent work had been primarily for plaintiffs because defense

attorneys had not consulted him on any cases. He explained that

defendants are reluctant to hire experts who have testified for

plaintiffs in medical malpractice actions.

B. The Decision to Exclude Dr. Ramírez's Testimony

1. The Court's Reasoning

The district court excluded Dr. Ramírez's testimony on

the ground that Dr. Ramírez was biased in favor of plaintiffs in

medical malpractice cases. In support of its decision, the court 1
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described at length the danger of bias that, in the court's view,

inhered in Dr. Ramírez's recent work as a medical expert and

consultant. The court wrote:

Dr. Ramírez has not been a practicing

obstetrician, or physician in any specialty,

during the past seven years. Instead, Dr.

Ramírez informed the Court that he has been

doing a variety of consulting work, including

consulting as an expert witness in

approximately 150 cases. Dr. Ramírez

testified that during the past year, he has

worked exclusively on cases in which he writes

reports or gives testimony on behalf of

plaintiffs. Dr. Ramírez has not acted as an

expert on behalf of a defendant in a single

case during the past year. The Court finds

that this track record indicates a bias in

favor of Plaintiffs.

The court also highlighted the fact that "Dr. Ramírez has

begun collaborating with the distinguished attorney for Plaintiffs

in this case . . . to give lectures regarding medical-malpractice

and EMTALA." The Court noted that those lectures were "for profit,

thereby focusing [Dr. Ramírez's] work further on assisting

plaintiffs who seek to sue doctors and hospitals for various

alleged violations of the law." This too "indicate[d] to the Court

that Dr. Ramírez is not an impartial witness" because "he has a

significant stake in the successful outcome of cases brought by

alleged victims of medical malpractice."

In a similar vein, the Court described its concern that,

"[b]y withdrawing from practice and the corresponding supervision

of the licensing board, Dr. Ramírez has set the stage for a line of
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work in which he need not provide impartial diagnoses of patients."

The court concluded that such "lack of control casts serious doubt

over the degree to which Dr. Ramírez's testimony would be made in

the manner to be expected of a responsible physician who is subject

to oversight by a medical licensing board."

Citing a "trend" in which "supposed experts" do not

"utiliz[e] scientific methods to render an opinion" but instead

"twist[] scientific methods to produce a result that will support

the case of those footing the bill," the district court explained

that it evaluated such experts "with a highly critical eye in order

to preserve the sanctity of the common law legal system."

Consistent with that concern, the court concluded that "Dr.

Ramírez's testimony is unlikely to be fair and impartial" and would

therefore be excluded.

2. The Court's Error

The district court cited as the basis for excluding Dr.

Ramírez's testimony aspects of his work that are typically

established through cross-examination of an expert witness at trial

in an effort to discredit his or her testimony. The court's

reasoning had nothing to do with the scientific validity of the

opinion that Dr. Ramírez proposed to offer or the principles that

underlie it. Yet, the Supreme Court has emphasized that the

"overarching subject" of the trial court's inquiry when assessing

proposed expert testimony "is the scientific validity -- and thus
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the evidentiary relevance and reliability -- of the principles that

underlie a proposed submission." Daubert, 509 U.S. at 594-95. By

excluding Dr. Ramírez's testimony due to its own determination that

Dr. Ramírez would be a biased witness on the grounds cited, the

district court abused its discretion. 

Assessing the potential bias of an expert witness, as

distinguished from his or her specialized training or knowledge or

the validity of the scientific underpinning for the expert's

opinion, is a task that is "properly left to the jury." United

States v. Carbone, 798 F.2d 21, 25 (1st Cir. 1986). While an

expert witness is always "subject to being discredited" on crossexamination, the jury must be "free to weigh the credentials of the

witness[] and the cogency of the bases given for [his] opinions"

if the expert has the requisite basis to testify on an issue of

relevance. Sailor Inc. F/V v. City of Rockland, 428 F.3d 348, 354

(1st Cir. 2005). Questions such as "bias, and the weight of the

evidence" are "matters for the factfinder." Den Norske Bank AS v.

First Nat'l Bank of Boston, 75 F.3d 49, 58 (1st Cir. 1996). Thus,

considerations such as an expert witness's pecuniary interest in

the outcome of a case, or his status as an expert witness only for

one side of an issue, or the extent to which a doctor currently

sees patients, go to the probative weight of testimony, not its

admissibility. See, e.g., id. (holding that interests of expert

witnesses who were employees of plaintiff affected the weight of
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their testimony, not its admissibility); Ethicon, Inc. v. U.S.

Surgical Corp., 135 F.3d 1456, 1465 (Fed. Cir. 1998). Furthermore,

specific credentials, such as an up-to-date board certification,

are not required for an expert to be qualified to testify. PagésRamírez, 605 F.3d at 114.

Dr. Ramírez's "specialized knowledge," namely his medical

training and experience in the field of obstetrics and gynecology

and whether it would "assist the trier better to understand a fact

in issue," Gaydar, 345 F.3d at 24 (quotation marks omitted), were

the appropriate field of inquiry for the district court when it

performed its gatekeeping function and evaluated him as a

prospective expert. Instead, the district court deviated from that

field of inquiry when it made findings that Dr. Ramírez gave

testimony exclusively for plaintiffs during the past year, that he

is paid to give lectures on medical malpractice and EMTALA, and

that he might testify irresponsibly due to a lack of board

certification, and then excluded his testimony on the basis of

bias. In so doing, the district court invaded the province of the

jury and exceeded its discretion. See Pagés-Ramírez, 605 F.3d at

116 ("[T]he Rules of Evidence require that the judge admit expert

testimony relevant to the disposition of the case when it will

assist the trier of fact in understanding a fact in issue and rests

on a reliable foundation."). 
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The judgment is therefore vacated and the case remanded

for further proceedings consistent with this opinion. Costs are

awarded to the appellants.

So ordered.