This is not what happened, but why: First Circuit rejects conclusive and unsubstantiated expert opinions | Faegre Drinker Biddle & Reath LLP

It is not uncommon for an opposition expert to express the view that the existence of harm alone implies negligence, nor is it unusual to find that such views are supported only by a general reference to “literature” with no discernible connection to the issue at hand. Certainly, Federal Rule of Civil Procedure 26(a)(2)(B) requires that an expert’s report contain “a full statement of all opinions that the witness will express and the basis and the reasons for them.” And, Federal Rule of Evidence 702 requires that an expert not only base their opinion on sufficient facts or data, but also reliably apply their methodology to those facts or data. Yet too often, courts refuse to hold an expert against and instead conclude that these deficiencies affect the weight, but not the admissibility, of an expert’s opinion. But, as the First Circuit recently observed, an expert must do more than simply cite the existence of harm if a res ipsa loquitur argument is not available. And in any event, an expert’s inability to relate the cited literature to the opinions offered is not a matter of insufficiency, but rather of unreliability.

In Lopez-ramírez against Toledo-Gonzcome on, — F.4th —, 2022 WL 1261299 (1st Cir. 2022), Plaintiff suffered hearing loss, facial paralysis and loss of balance as a result of neurosurgery performed by Defendant neurosurgeon. The plaintiff sued the physician and the hospital, alleging that the defendant neurosurgeon’s failure to properly assess, treat and monitor his condition during the operation constituted medical malpractice. In support of this claim, the plaintiff disclosed a neurology expert who felt that the defendant neurosurgeon had departed from the standard of care and included in his report articles from the medical literature that he felt “could be useful” to understand his opinions.

The defendants proposed to exclude the expert’s opinions, arguing inter alia that the plaintiff’s expert had not specified How? ‘Or’ What the defendant neurosurgeon had deviated from the standard of care and that he simply assumed some negligence because the operation had a negative outcome. The defendants argued that this res ipsa loquitur the theory was not available under Puerto Rican law. Further, the defendants argued that the failure of the plaintiff’s expert to name the newspaper articles which he believed “could be useful” or to explain how they supported his opinions was inappropriate. The district court agreed, finding too great an analytical discrepancy between the content of the expert report and the opinions offered, and therefore excluded the opinions under Rule 702. The defendants then sought summary judgment on the grounds that the plaintiff needed but did not have an expert. witness, and the court granted the motion.

On appeal, the plaintiff challenged the disqualification of its expert, asserted that summary judgment in the absence of an expert was inappropriate due to the plaintiff’s alternative recourse to the defense expert, and asserted that the negligence was flagrant enough that expert testimony is not necessary. However, the First Circuit was completely unconvinced and upheld the district court’s decision.

Two important points deserve to be emphasized in this case. First, even in the face of an indisputably poor medical outcome, simply reporting an injury is insufficient to establish negligence, as this would impermissibly shift the onus of the defense. Here, the District Court and the First Circuit recognized that the onus is on the plaintiff to establish the duty of care and a breach of that duty. When the law does not allow a res ipsa loquitur theory, an expert who merely infers unspecified negligence from a bad result does not offer a valid opinion.

Second, by comparing the opinion of the district court (Lopez-ramírez against Grupo Hima San Pablo, Inc., 2020 WL 365554 (DPR 22 Jan 2020)) with the First Circuit Summary, it is apparent that the expert’s failure to name the papers he included in his report or to link the contents of those papers to his views amounts to more than just a pro forma issue. Plaintiff argued that the district court’s opinion imposed an unduly harsh discovery penalty, presumably based on the district court’s subpoena to authority regarding Federal Rule of Civil Procedure 26 in connection with the failure to name and to explain the items. But the First Circuit rejected that argument and noted that the disqualification was not a discovery penalty but rather based on Rule 702 – the fact that the expert did not name the literature and linked it to his opinions left an impermissible gap in his reasoning and made his opinions unreliable. From medical malpractice to product liability, there is no shortage of medical literature an expert could point to and claim to support their views. But an expert must do more than claim generic support from unspecified medical literature; while the first circuit was held at Lopez-ramwill goan expert must explain How? ‘Or’ What literature supports his opinions. Failure to do so not only violates the disclosure requirements of Federal Rule of Civil Procedure 26, but also renders the opinion inadmissible under Federal Rule of Evidence 702.

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