It is not uncommon for an opposing expert to opine that the existence of injury alone implies negligence, nor is it unusual to find that such opinions are supported only by general reliance on “literature” with no discernible connection to the issue at hand. Certainly, Federal Rule of Civil Procedure 26(a)(2)(B) requires an expert’s report to contain “a complete statement of all opinions the witness will express and the basis and reasons for them.” And, Federal Rule of Evidence 702 requires that an expert not only base an opinion on sufficient facts or data but also reliably apply his or her methodology to those facts or data. Yet all too often, courts decline to hold an expert to task and instead find that these deficiencies go to the weight, but not the admissibility, of an expert’s opinion. But, as recently observed by the First Circuit, an expert must do more than merely cite the existence of an injury if a res ipsa loquitur argument is not available. And regardless, an expert’s failure to link the literature cited to the opinions offered is not a matter of insufficiency, but rather of unreliability.
In López-Ramírez v. Toledo-González, — F.4th —, 2022 WL 1261299 (1st Cir. 2022), Plaintiff experienced hearing loss, facial paralysis and loss of balance following a neurosurgical procedure performed by the defendant neurosurgeon. Plaintiff sued the physician and the hospital, alleging that the defendant neurosurgeon’s failure to properly evaluate, treat and monitor her condition during the surgery amounted to medical malpractice. In support of that claim, Plaintiff disclosed a neurology expert who opined that the defendant neurosurgeon deviated from the standard of care and included with his report articles from the medical literature that he felt “may be helpful” in understanding his opinions.
Defendants moved to exclude the expert’s opinions, arguing among other things that Plaintiff’s expert had failed to specify how the defendant neurosurgeon had deviated from the standard of care and that he was merely assuming negligence of some sort because the surgery had had a negative outcome. Defendants argued that this res ipsa loquitur theory was unavailable under Puerto Rico law. Further, Defendants argued that Plaintiff’s expert’s failure to name which of the journal articles he believed “may be helpful” or to explain how they supported his opinions was improper. The district court agreed, finding too great an analytical gap between the contents of the expert’s report and the opinions offered, and therefore excluded the opinions under Rule 702. Defendants then moved for summary judgment on the basis that Plaintiff needed but did not have an expert witness, and the court granted the motion.
On appeal, Plaintiff challenged the exclusion of her expert, asserted that summary judgment for lack of an expert was inappropriate because of Plaintiff’s alternative reliance on the defense expert, and claimed that the negligence was sufficiently egregious that the testimony of an expert was unnecessary. The First Circuit was wholly unpersuaded however and affirmed the district court’s ruling.
There are two key points worth noting about this case. First, even in the face of an inarguably poor medical outcome, it is not enough simply to point to an injury to establish negligence, because to do so would impermissibly shift the burden to the defense. Here, both the district court and the First Circuit acknowledged that a plaintiff bears the burden of establishing the duty of care and a breach of that duty. Where the law does not permit a res ipsa loquitur theory, an expert who merely infers unspecified negligence from a poor outcome does not offer an admissible opinion.
Second, when comparing the district court’s opinion (López-Ramírez v. Grupo Hima San Pablo, Inc., 2020 WL 365554 (D.P.R. Jan. 22, 2020)) with the First Circuit’s summary, it is apparent that the expert’s failure to name the articles that he included with his report or to relate the content of those articles to his opinions amounts to more than a mere pro forma problem. Plaintiff argued that the district court’s opinion levied too harsh a discovery sanction, presumably based on the district court’s citation to authority concerning Federal Rule of Civil Procedure 26 in connection with the failure to name and explain the articles. But the First Circuit rejected that argument and noted that the exclusion was not a discovery sanction but instead based on Rule 702 — the expert’s failure to name the literature and link it to his opinions left an impermissible gap in his reasoning and rendered his opinions unreliable. Whether in medical malpractice or in product liability, there is no shortage of medical literature to which an expert might point and allege that it supports his or her opinions. But an expert must do more than claim generic support from unspecified medical literature; as the First Circuit held in López-Ramírez, an expert must explain how the literature supports his or her opinions. Failure to do so not only falls short of the disclosure requirements of Federal Rule of Civil Procedure 26 but also renders the opinion inadmissible under Federal Rule of Evidence 702.