USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 96-1894

RAFAELA CORT S-IRIZARRY,

Plaintiff, Appellant,

v.

CORPORACI N INSULAR DE SEGUROS, ET AL.,

Defendants, Appellees.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

___________________

_________________________

Before

Torruella, Chief Judge,

___________

Coffin, Senior Circuit Judge,

____________________

and Selya, Circuit Judge.

_____________

_________________________

David Efron, with

___________

whom Kevin G. Little was

________________

on brief,

for

appellant.
Elisa M. Figueroa B ez, with
________________________

whom

Law Offices

of Sigrid
______

Lopez Gonzalez was on brief, for appellees.

______________

_________________________

April 16, 1997

_________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
______________

Plaintiff-appellant

Rafaela

Cort s-Irizarry

Rafael

Jos

(Cort s), suing

Mu iz

summary judgment to

Cort s (Jos ),

on behalf

of her

challenges an

minor child,

order granting

Corporaci n Insular de Seguros (CIS) and its

insured, Juan Ram n Gonz lez Aristud (Dr. Gonz lez), in a medical

malpractice action.

48 (D.P.R. 1996).

I.
I.

See Irizarry v. CIS, 928 F.

___ ________
___

We vacate the order and remand for trial.

BACKGROUND
BACKGROUND

Although the

for

Supp. 141, 147-

accepted summary judgment

us to cast the facts in

protocol calls

the light most complimentary to the

plaintiff's position, consistent with record support,

Garside v. Osco Drug, Inc., 895 F.2d 46, 48

_______
________________

see, e.g.,
___ ____

(1st Cir. 1990), we

temper that protocol here to the extent that we set off, as point

and counterpoint,

conflicting evidence where the

illuminate pertinent legal issues.

clash helps to

For simplicity's sake we omit

any further reference to CIS and treat its insured as

if he were

the sole defendant.

Dr.

Gonz lez,

specialist in

prenatal care to Cort s after she

December 15, 1979, Cort s

menstrual

lasted

cycle prior

menses was three days,

or three days

Based

on this

became pregnant with Jos .

conception began

The length of

on

data, Dr.

delivery date (EDD) to be

On

her last

November 2

and

her immediately preceding

and her periods typically had

during the

provided

related to Dr. Gonz lez that

to

only two days.

obstetrics,

year prior to

her current

Gonz lez calculated

August 9, 1980.

lasted two

pregnancy.

Cort s' estimated

He delivered

Jos

by

cesarean section on

pounds,

eight and

July 30,

1980.

three-quarter

The

newborn weighed

ounces (two

pounds more

eight

than

Cort s' first child) and exhibited no fetal distress.

According to the

in her

This

theory

thirty-ninth

defendant's computations, Cort s

week of

calculation forms

pregnancy when

the nub

of the

case.

the baby

was

arrived.

The plaintiff's

is that Dr. Gonz lez misfigured the baby's fetal age and,

consequently, allowed the pregnancy

weeks,

thus bringing

into play

datism" or "post-maturity."

to continue beyond forty-two

a risk

factor known

post-dated fetus is

as "post-

at risk

of

oxygen deprivation during its extended stay in the mother's womb,

and brain damage is a predictable result.

displayed

no

delivery,

the

indications

the cesarean

long as

detectable

symptoms

circumstances

of potential

the

suggesting

delivery

perinatal difficulties;

section took

the norm), and,

of

While Jos , at

post-dated

revealed

view of the

some

for instance,

twenty-one minutes (roughly

on one

birth,

proof, a

twice as

tracheal

catheter was used to intubate the newborn.1

Time resolved

these mixed signals.

of neurologic abnormality at three

Jos

showed signs

months and was diagnosed with

____________________

1Other contemporaneous indicators were

one hand, Jos

had a relatively high Apgar score.

is comprised of five components:

muscle

tone,

inscrutable.

On the

An Apgar score

heart rate, respiratory effort,

reflex irritability,

and

color.

It

usually is

compiled by the anesthesiologist at one minute after the delivery

and again

at the

five-minute mark.

low score

is generally

thought to have predictive value in determining brain damage.

the other
serum

hand, testing at

bilirubin

level

birth revealed

(which

could

metabolic problem).

a somewhat

indicate

an

On

elevated

incipient

impaired motor

development and hearing loss

His condition worsened as the years passed.

was

diagnosed

as

profoundly deaf.

Florida,

severely

At that

sued Dr.

As an adolescent, he

damaged,

epileptic,

juncture, Cort s, then

Gonz lez

court, see 28 U.S.C.

___

brain

at fourteen months.

in Puerto

and

a citizen

Rico's federal

of

district

1332(a) (diversity jurisdiction), alleging

that the physician's negligence caused her son's infirmities.

Cort s'

experts.

An

case rests

primarily on

obstetrician, Dr. Bernard Nathanson,

competent obstetrician, rather than

day menstrual

the opinions

period to

opined that a

relying upon a reported two-

calculate a

gravid woman's

EDD, would

have launched a more detailed gynecologic investigation.

Gonz lez done so,

of two

the witness stated,

he would have

Had Dr.

discovered

that Cort s'

actual

recognized that

EDD was

July 9,

1980, and

he would

have

a substantial risk of post-datism arose when her

pregnancy extended past the EDD (a risk which he presumably could

have negated

reaching

brevity

by performing

the cesarean section

these conclusions, Dr.

of the

reported period

earlier).

Nathanson stressed

(especially as

In

the unusual

contrasted with

Cort s' previous menses) and Dr. Gonz lez' failure to confirm the

EDD by

performing various tests

available in

which the

1979-1980 (e.g., a B-scan

witness stated

were

ultrasound examination).

In Dr. Nathanson's opinion, the pregnancy was post-dated, and the

defendant's

failure to

realize

it and

take corrective

action

violated the prevailing standard of care.

Dr. Nathanson

also

disputed Dr.

Gonz lez'

assertion

that

he in fact performed a manual pelvic examination at Cort s'

initial

throughout

appointment

subsequently

measured

her pregnancy to corroborate the

saw no evidence that

Gonz lez'

and

office

these steps had been taken.

record did

uterine measurements

EDD.

not

mention

or their results.

prenatal charts apparently had

her

uterus

Dr. Nathanson

Moreover, Dr.

either the

periodic

Although some of Cort s'

been lost,

Dr.

Nathanson stated

that

these data

"are

so

vital that

they

should

be in

[Dr.

Gonz lez'] record in any case had he done them."

The plaintiff's second expert, Dr.

neurologist,

diagnosed Jos

Syndrome (LGS).

a lack of

Hausknecht

the time by

that,

increases sharply when, as

other known cause exists.

in

his

the fetal

experience,

(resulting

brain).

this

Doctor

percentage

in this instance, no evidence

of any

Noting that the gradual development of

was characteristic of a

Hausknecht rendered an opinion

from the

Lennox Gasteault

perinatal brain damage

sufficient oxygen to

stated

Jos 's condition

suffering from

This neurological condition is caused roughly

fifty percent of

from

as

Allan Hausknecht, a

post-datism which Dr.

post-mature fetus, Dr.

that Jos 's brain damage resulted

Nathanson had identified.

This

opinion was bolstered in some degree by Dr. Nathanson's statement

that, while some

post-dated infants will show immediate signs of

placental senescence, such as

peeling of the skin

(Jos

meconium-stained amniotic fluid or

had neither), many others

asymptomatic at birth yet manifest the

a later time.

will appear

effects of post-datism at

To

be

sure,

the

plaintiff's

evidence

hotly

contested.

The defendant

accurately

and that many of the tests suggested by Dr. Nathanson

were

unnecessary, or impracticable, or

experts

who

intrauterine

which

offered

0.2 to

had

significant omission

be

alternative

2.2 percent

theory

of all

asymptomatic

retardation

been

birth and

or deafness, CMV can

causation:

rare condition

The

at age fifteen revealed

in

indicate whether

utero.

because, while infants who

at

of

live births.

but did not

contracted

EDD

He also presented

infection, a

latent CMV infection,

infection

had figured the

both.

of blood tests performed on Jos

previous or

may

an

cytomegalovirus (CMV)

occurs in

results

the

claimed that he

was

thereafter

This

is

suffer from CMV

develop

mental

be transmitted in various ways

and affects most individuals during their lifetimes.

II.
II.

THE SUMMARY JUDGMENT STANDARD

THE SUMMARY JUDGMENT STANDARD

A court

may grant summary judgment

depositions, answers to interrogatories, and

together

with

the affidavits,

genuine issue as

is

if any,

We

symphony

admissions on file,

show

that there

to any material fact and that

entitled to a judgment as a matter

56(c).

"if the pleadings,

of law."

is no

the moving party

Fed. R. Civ. P.

have expounded this standard and its particulars in a

of cases,

see, e.g.,
___ ____

McCarthy v.
________

Northwest Airlines,
___________________

Inc., 56 F.3d 313, 315 (1st Cir. 1995) (collecting cases), and we
____

refrain from

our

purposes,

operation.

rehearsing this

it

suffices

jurisprudential chorus here.

briefly

to

describe

the

For

rule's

The

boilerplate

objective of

of the

summary judgment

pleadings and

assay the

"is to

pierce the

parties' proof

order to determine whether trial is actually required."

Tufts Univ. Sch. of Med., 976 F.2d 791,

________________________

defeat

a motion for

demonstrate

the existence

of

Wynne v.
_____

794 (1st Cir. 1992).

summary judgment, the

a trialworthy

in

To

nonmoving party must

issue

as to

some

material

fact.

(1st Cir.

1995).

affect the

issue

See Coyne v. Taber Partners I, 53 F.3d 454, 457

___ _____
_________________

A fact

is "material" if it

suit's outcome.

concerning

such

factfinder, examining

the

See
___

fact

potentially could

Garside, 895 F.2d

_______

is

"genuine"

evidence and

at 48.

if

An

a reasonable

drawing all

reasonable

inferences helpful to the party resisting summary judgment, could

resolve

the

dispute

in

that

party's

favor.

Amusements, Inc. v. Town of Dedham, 43 F.3d

________________
______________

See
___

National
________

731, 735 (1st Cir.),

cert. denied, 115 S. Ct. 2247 (1995).

_____ ______

Exercising de novo review,

we

hold that the record in

to whether

see Coyne, 53 F.3d

___ _____

at 457,

this case presents triable issues as

Dr. Gonz lez violated his

duty of care,

and, if so,

whether his

district

actions caused

court

erred

in

Jos 's injuries.

granting

the

Consequently, the

motion

for

brevis
______

disposition.

III.
III.

ANALYSIS
ANALYSIS

We

principles

first survey

and

the

the junction

standards

where summary

governing the

expert scientific evidence intersect.

court's ruling.

judgment

admissibility

of

We then evaluate the lower

A.
A.
__

The

defendant

judgment should

power

be affirmed because

to exclude

Daubert
_______

v.

(1993),

and that,

case.

not

asserts on

the

appeal

that

the district court

plaintiff's expert

509

of

had the

evidence pursuant

Merrell Dow Pharmaceuticals, Inc.,

___________________________________

without such

the entry

U.S.

evidence, the plaintiff

to

579

has no

Cort s parries this thrust by contending that Daubert does

_______

apply at

the

summary

judgment

stage.

The

truth

lies

somewhere in between.

The

Daubert
_______

Court

formulated

a regime

for

use

in

ascertaining

under

admissibility

Fed. R. Evid. 702.2

judges

the

the

of

expert

This regime

scientific evidence

contemplates that trial

will perform a gatekeeping function, determining "whether

reasoning

or

methodology

reasoning

or methodology properly can be applied to the facts in

Sepulveda, 15
_________

509

U.S. at

F.3d 1161, 1183

and

592-93;

expert]

is

Daubert,
_______

valid

[proffered

testimony

issue."

scientifically

underlying

whether

see United States

___ ______________

(1st Cir. 1993)

____________________

2The rule stipulates:

scientific,

technical,

specialized knowledge will

v.

(discussing this

function).

If

that

or

other

assist the

trier

of

fact to

determine

understand
a

fact

the

in

issue,

qualified as

an expert by

experience,

training,

testify thereto in the

evidence or
a

to

witness

knowledge, skill,
or

eduction,

may

form of an opinion or

otherwise.

Fed. R. Evid. 702.

The plaintiff

of-trial phenomenon.

She

posits that Daubert is

_______

is wrong.

strictly a time-

The Daubert regime can play

_______

a role during the summary judgment phase of civil litigation.

If

proffered expert testimony fails to cross Daubert's threshold for

_______

admissibility, a

consideration when

See Cavallo
___ _______

district court

passing upon

may exclude that

a motion for

evidence from

summary judgment.

v. Star Enter., 100 F.3d 1150, 1159 (4th Cir. 1996),

___________

petition for cert. filed,

________ ___ _____ _____

65 U.S.L.W. 2399 (U.S. Mar.

19, 1997)

(No. 96-1493); Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 293,

__________
______________________

297-99

3539

(8th Cir.

(U.S. Jan.

N.R.R.,
______

1996), petition for

________ ___

29, 1997)

cert. filed,
_____ _____

(No. 96-1212);

Claar v.
_____

65 U.S.L.W.

Burlington
__________

29 F.3d 499, 502-05 (9th Cir. 1994); Porter v. Whitehall

______
_________

Lab., Inc., 9 F.3d 607, 612, 616-17 (7th Cir. 1993).

__________

The

fact that Daubert

_______

summary judgment motions

can be used

should be

used

provide the

best

operating environment for the triage which Daubert demands.

_______

Voir
____

profligately.

dire
____

is

does not

in connection with

trial setting

an extremely

helpful

expert testimony, see Sepulveda,

___ _________

mean that it

normally will

device

in evaluating

15 F.3d at 1184 n.15,

proffered

and this

device is not readily available in the course of summary judgment

proceedings.

Moreover,

required by Daubert, courts

_______

given

the

complex

factual

inquiry

will be hard-pressed in all

but the

most clearcut cases to gauge the reliability of expert proof on a

truncated record.

Because the summary judgment process does not

conform well to the discipline that

Daubert imposes, the Daubert

_______
_______

regime should be employed only with great care and circumspection

at the summary judgment stage.

We

Daubert
_______

conclude, therefore,

intersects

with summary

that

on the

face of

a proffer

the junction

judgment practice,

accessible, but courts must be cautious

obvious

at

where

Daubert is
_______

except when defects are

not

to exclude

debatable

scientific

evidence

without

affording

evidence adequate opportunity to

the

proponent

of

the

defend its admissibility.3

See
___

Margaret A. Berger, Procedural Paradigms for Applying the Daubert

_____________________________________________

Test, 78 Minn. L. Rev. 1345, 1379-80, 1381 (1994).

____

Having

rejected

the plaintiff's

that Daubert can never be used at

_______

turn

to

the

necessitates

defendant's

the

exclusion

plaintiff's experts.

shortcoming:

the

argument

the opinions

that Daubert
_______

advanced

by

the

This asseveration suffers from a very basic

defendant never

exclude this evidence from

made no effort to do

the summary judgment stage, we

case-specific

of

broadcast contention

asked the district

court to

consideration, and the district court

so on its own initiative.

If trial courts

should be slow to

employ Daubert at the summary

_______

appellate courts should

be even

judgment stage,

more hesitant to

head in

that

____________________

3Though such an opportunity is most easily afforded at trial

or in

a trial-like

setting, courts have

ingenuity in devising

ways in

developed

permit

so

as

to

which an adequate
Daubert
_______

conjunction with motions for summary

v. SEPTA
_____
739

displayed considerable

rulings
judgment.

record can
to

be

made

be

in

See, e.g., Brown

___ ____ _____

(In re Paoli R.R. Yard PCB Litig.), 35

_________________________________

F.3d 717, 736,

(3d Cir. 1994) (discussing use of in limine hearings), cert.

__ ______
_____

denied, 115 S. Ct. 1253 (1995); Claar, 29 F.3d at 502 (discussing

______
_____
district court's
affidavits
their

technique of ordering experts

explaining the

conclusions).

practices; we merely

We

reasoning and
do

warn that

not

in

any

to submit serial

methodology underlying
way

disparage

the game sometimes

worth the candle.

10

will not

such

be

direction where there has been no development of the issue below.

After all, the bifurcated

which Daubert
_______

inquiry into reliability and relevance

requires is best

performed by

trial judges

who,

unlike appellate judges, have a broad array of tools which can be

brought to bear on

we can

the evaluation of expert testimony.4

envision few, if

any, cases in which

would venture to superimpose

developed

record when

an appellate court

a Daubert ruling on a
_______

neither the

parties

Hence,

nor the

cold, poorly

nisi prius

court has had a meaningful opportunity to mull the question.

This case falls squarely into the maw of these

principles.

The

that he spouts on

defendant, notwithstanding

appeal, never asked

general

the animadversions

in the district court

to

strike or otherwise defenestrate the statements of Drs. Nathanson

and/or Hausknecht.

Daubert nor
_______

The district court's

rescript neither cites

purposes to exclude the expert evidence submitted on

the plaintiff's behalf.

is wholly inadequate to

And, moreover, the record as

it stands

permit a reasoned Daubert determination.

_______

For these reasons, we decline the defendant's odd invitation that

we start from

scratch and

undertake a Daubert
_______

analysis in

the

____________________

4It

is for this reason,

coupled with the

special coign of

vantage which trial

judges

broad

courts enjoy, that we have afforded district

discretion

in

determining

whether

particular

scientific testimony is or is not admissible at trial.

v. Hoult, 57
_____
1183.

F.3d 1, 5

In this vein,

(1st Cir. 1995);

we note that

See Hoult
___ _____

Sepulveda, 15 F.3d
_________

the Supreme Court

at

soon will

resolve a disagreement

among the circuits as

to the appropriate

standard for reviewing

such decisions.

Joiner v.
______

Elec. Co., 78
__________
U.S.L.W.

F.3d

524 (11th

Cir.

See
___

1996), cert.
_____

3619 (U.S. Mar. 17, 1997) (No. 96-188).

of-review question need not concern us today.

11

General
_______

granted,
_______

65

That standard-

context

of this appeal.5

consider

the

entire

This means,

record,

of course, that

including the

opinions

we must

of

Drs.

Nathanson and Hausknecht, as we ponder the merits of the district

court's dispositive ruling.

B.
B.
__

In this

Rico controls.

diversity suit, the substantive

See
___

Erie R.R. v.
__________

Tompkins,
________

law of Puerto

304 U.S.

64,

78

(1938); Rolon-Alvarado v. Municipality of San Juan, 1 F.3d 74, 77

______________
________________________

(1st Cir. 1993).

The Puerto

Rico Civil Code

states that

"[a]

person who by an act or omission causes damage to another through

fault

done."

or negligence

P.R.

shall be

Laws Ann.

proviso, three elements

tit.

obliged to

31,

5141

comprise a prima

repair the

damage so

(1991).

Under this

facie case of

medical

malpractice; a plaintiff must establish (1) the

duty owed (i.e.,

the minimum standard of professional knowledge and skill required

in

the

relevant

transgressing

circumstances),

that

duty,

and

(2)

(3) a

an

act

or

sufficient

omission

causal

nexus

____________________

5In all events, we

defendant

in

inappropriate.

note that the two

support

of

First, Dr.

grounds urged by

his

exclusionary

Gonz lez

asserts

request

that his

evidence is more persuasive than the plaintiff's.

the

are

expert

His insistence

that this circumstance warrants exclusion of the competing expert

evidence contradicts
practice.
Auth.,
_____

835

fundamental principles of

See, e.g., Greenburg v. Puerto Rico Maritime Shipping

___ ____ _________
_____________________________
F.2d 932,

936 (1st

reverse these principles.

also
____

summary judgment

1997) (No. 96-1552).

Daubert
_______

See Daubert, 509 U.S. at

___ _______

Ambrosini v. Labarraque,
_________
__________

1996), petition for cert.

________ ___ _____

Cir. 1987).

101 F.3d

does not

595-96; see
___

129, 140-41

(D.C. Cir.

filed, ___ U.S.L.W. ___ (U.S.

_____

Apr. 1,

Second, he claims that the testimony of the

plaintiff's witnesses, if allowed, would

that particular expert evidence might tend

be confusing.

The fact

to confuse or mislead

jury can constitute grounds

trial, see
___

for exclusion of

the evidence at

Fed. R. Evid. 403, but it is not directly relevant to

a Daubert analysis.
_______

See Daubert, 509 U.S. at 595-96.

___ _______

12

between the breach and the claimed harm.

F.3d 473,

See Lama
___ ____

v. Borras, 16
______

478 (1st Cir. 1994); Rolon-Alvarado, 1 F.3d at 77.

______________

whole-record

review,

we conclude

that

the

On

plaintiff produced

sufficient evidence to establish a genuine factual controversy as

to each element.

1.
1.

Duty and Breach.

Duty and Breach.
_______________

duty and breach are

In this

case, the

inextricably intertwined.

elements of

Thus,

we address

them in the ensemble.

Puerto

Rico

national standard of

holds

care.

health

care

Accordingly,

to

See Oliveros v. Abreu, 101 P.R. Dec.

___ ________
_____

209, 226-27, translated in 1 P.R. Sup.

__________ __

(1973).

professionals

Ct. Off'l Trans. 293, 313

a health care provider has

"a duty to use

the same degree of expertise as could reasonably be expected of a

typically competent practitioner in the identical specialty under

the

same

variations

or

in

similar

circumstances,

professional acumen

regardless

or level

of

of care."

regional

Rolon______

Alvarado, 1 F.3d at 77-78.

________

Nevertheless, because Puerto Rico law

presumes

that physicians exercise

bent

establishing a

on

ordinarily

must

breach of

adduce expert

reasonable care,

a plaintiff

physician's duty

testimony

to

of care

limn the

minimum

acceptable standard and confirm the defendant doctor's failure to

meet it.

See id. at 78.

___ ___

Cort s'

Nathanson,

proffer

specialist

clearly delineated the

believed

to

be Dr.

is

sufficient

in the

same

field

standard of care

Gonz lez' departures

13

to

this

as

end.

Dr. Gonz lez,

and identified what

from

Dr.

it.

he

He stated

categorically that an "average gynecologist" would not rely on

reported

two-day

relatively common

failure

"the

menstrual period

to that particular

to perform corroborating

prevailing

unusually

individual

tests then

medical standard."

For

short even

and

if

that the

available violated

purposes of

summary

judgment, affiants and witnesses need not be precise to the point

of

pedantry.

Thus, we

"average gynecologist"

as meaning the

treat Dr. Nathanson's

references to the

and to "the prevailing

medical standard"

national standard of care.

Cf.
___

Lama, 16 F.3d at
____

479 n.7.

The district court advanced three principal

support of its

could

conclusion that these issues

be resolved against the

grounds in

duty and breach

plaintiff at the summary judgment

stage, notwithstanding Dr. Nathanson's

opinion evidence.

All of

these grounds lack persuasive force.

First,

periods

had lasted

accordingly,

short

for

Nathanson's

the

"an

"a two-day

her."

court

observed

average of

period

Irizarry,
________

928

testimony supported

whether the menses was

two

was not

that

Cort s'

to three

days,"

abnormal or

F. Supp.

the opposite

at

menstrual

and,

unusually

146.

But

Dr.

conclusion; thus,

abnormal and whether it triggered

a duty

to inquire further became questions of fact not properly resolved

on

summary

judgment.

See,
___

e.g.,
____

Greenburg v.
_________

Puerto Rico
____________

Maritime Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987).
_______________________

Second, the court determined that, because Dr. Gonz lez

measured

the

uterus

periodically

throughout

the

pregnancy,

the EDD on which he

relied, he

14

yielding results consistent with

had no

reason to

suspect an

order any additional tests.

earlier date

of conception or

See Irizarry, 928 F. Supp. at

___ ________

to

146.

While Dr. Gonz lez so testified, the court erred in treating that

testimony as conclusive.

When Dr. Gonz lez'

assertions are juxtaposed, the

to

whether

the defendant

and Dr. Nathanson's

net result is a factual

made

the measurements,

issue as

and,

if so,

whether this procedure satisfied the applicable standard of care.

Third, the

the faintest of

one doctor's

identical

denying

147.

court damned

Dr. Nathanson's

praise, characterizing it

assertion that he

circumstances

than

it effect in the summary judgment

We accept the

as nothing more

would have acted

did another,

opinion with

and,

than

differently in

consequently,

calculus.

See id. at
___ ___

court's premise that a mere disagreement

in

medical

judgment, without more, does not prove duty or breach in

medical malpractice case brought

Rolon-Alvarado,
______________

1 F.3d

at

78.

under Puerto Rico

But

we

reject

law.

the

See
___

court's

conclusion; Dr. Nathanson's declarations, read in context, amount

to

satisfactory statement

of the

standard

of care

and the

defendant's deviation from it which, if credited by a jury, could

support

a finding

cause of action.

for the

plaintiff on

And in the absence of a

these elements

of her

Daubert determination
_______

excluding the Nathanson evidence as scientifically untenable, the

trial court was not at liberty on summary judgment to ignore that

evidence merely because it deemed other evidence more credible.

2.
2.

Causation.
Causation.
_________

Notwithstanding proof of both duty and

15

breach,

plaintiff

causation in a

F.3d at 77.

also

must

offer

medical malpractice case.

competent

evidence

of

See Rolon-Alvarado, 1
___ ______________

The lower court found the plaintiff's submissions on

this element wanting.

See Irizarry,
___ ________

928 F. Supp.

at 147.

demur.

A medical

malpractice plaintiff can

and often does

We

establish causation through expert testimony.

at

478.

Cort s

took that

opinion to a reasonable degree

EDD was actually

route.

Nathanson offered

an

of medical certainty that Cort s'

July 9, not August

discrepancy had

dire consequences.

meant

Gonz lez

that Dr.

Dr.

See Lama, 16 F.3d

___ ____

did not

9, and that

If

this one-month

accepted, this testimony

perform the

cesarean section

until the forty-third week of a post-dated pregnancy.

Relatedly,

from LGS,

Dr. Hausknecht diagnosed

which, in the

absence of any

Jos

as suffering

genetic or other

known

explanation, is generally thought to be caused by perinatal brain

damage.

It is undisputed that the adverse effects of post-datism

include oxygen

deprivation, and thus

Finding no evidence

of any hereditary

can lead to

brain damage.

etiology and observing

pathology consistent with post-datism, Dr. Hausknecht opined that

Jos 's

which

cerebral damage

Dr.

probably was

Nathanson identified.

caused by

Both

the post-datism

physicians also

noted

likely indications of complications

at birth, and these findings

buttress

of

the

plaintiff's

theory

causation.6

Drawing

____________________

6Dr.

Nathanson

dwelled

cesarean section and the

on

the unusual

duration

apparent use of a tracheal

resuscitate the infant at birth.

of

the

catheter to

Dr. Hausknecht noted that there

16

reasonable inferences

find that Dr.

day

tests

from this evidence, a

rational jury could

Gonz lez' negligent reliance upon

menstrual period

caused

and

his eschewal

post-dated

included perinatal

pregnancy,

brain damage

a reported two-

of further

the

(available)

effects

of

which

which manifested itself

in the

form of LGS.

Of

plaintiff's

presence

"more

course,

debunked

the

proof and offered an alternative causal theory

the

of a

the

CMV infection

compelling."

defendant's

which

Irizarry, 928
________

experts

the district

F. Supp.

court found

at 147.

comparisons are invidious at the summary judgment stage.

But such

Even at

trial, a plaintiff in a medical malpractice suit need not prove a

causal

connection with

other

possible

causes

mathematical accuracy nor

of

damage.

See
___

eliminate all

Cruz Rodriguez
_______________

Corporaci n de Servicios del Centro M dico, 113 P.R.

____________________________________________

744,

translated in
__________ __

13 P.R.

(1983).

Legal rules

summary

judgment because Rule

almost one

Sup. Ct.

of this sort acquire added

56 "contemplates

dimensional, exercise geared

the nonmovant's

Off'l Trans.

Dec. 719,

931, 960-61

significance on

an abecedarian,

to determining

most favorable evidence and

v.

whether

the most flattering

inferences which can reasonably be drawn therefrom are sufficient

to

create any authentic question

of material fact."

Greenburg,
_________

835 F.2d at 936.

In this

case, the defendant's evidence on the issue of

____________________

had been an
belief

abnormal bilirubin

that this might

level at birth

evince a metabolic

and expressed

problem damaging the

brain.

17

causation, as compelling as it might have seemed, did not warrant

the

entry of

alternative

testimony

damage,

summary judgment.

theory of

as to

The

causation

the causal

and between perinatal

plaintiff articulated

and backed

nexuses between

damage and

it up

LGS

an

with expert

and perinatal

post-datism.

At the

same time, she cast doubt on the defendant's theory of causation,

establishing the low incidence

suggesting

an alternate

system (related

thereby

sexually

to a

opening up

of intrauterine CMV infection and

origin of

history of

any

sexual molestation

the possibility that

transmitted).

This

CMV detected

any CMV

in Jos 's

at school,

infection was

evidence sufficed

to

trialworthy issue vis- -vis the element of causation.

create

See Coyne,
___ _____

53 F.3d at 460 (explaining that "when the facts support plausible

but

conflicting inferences on a

judge may

not choose

pivotal issue in

between those

inferences

judgment stage"); see also United States

___ ____ _____________

(1st

Cir. 1996)

(stating that

the case, the

at the

summary

v. Kayne, 90 F.3d 7, 12
_____

disagreements among

"properly the subject of searching cross-examination"

experts are

at trial),

cert. denied, 117 S. Ct. 681 (1997).

_____ ______

III.
III.

CONCLUSION
CONCLUSION

We need go no further.

in the

light most

could find all the

plaintiff's

Scrutinizing the

congenial to

the plaintiff, rational

elements of medical malpractice.

evidence may

entire record

appear

thin to

jurors

Though the

some, it

establishes

which reasonable minds

may differ.

factual disagreements

as to

No

See Greenburg, 835 F.2d at 936 (explaining

___ _________

more is exigible.

18

that the

ground rules associated with

summary judgment practice

"admit of no room for credibility determinations, no room for the

measured

weighing

of conflicting

process entails, no

room for

evidence

the judge to

ideas

of probability

and likelihood

those

ideas

upon the

Right or

may be)

such

superimpose his

(no matter

carapace

as the

of the

trial

own

how reasonable

cold record").

wrong, the plaintiff is entitled to present her case to

a jury.

The order granting summary judgment is vacated and the

The order granting summary judgment is vacated and the
_______________________________________________________

case is remanded for trial.

case is remanded for trial.
__________________________

Costs to appellant.
Costs to appellant.
__________________

19