Baerga-Colon v. Menonita Guayama Hospital, Inc. et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
HIPOLITO BAERGA-COLÓN
Plaintiff,
v.
MENONITA GUAYAMA HOSPITAL,
INC., et al.,
Defendants.
Civ. No. 22-cv-1546 (MAJ)
OPINION AND ORDER
I. Introduction
Before the Court are two Motions in Limine filed by Plaintiff Hipolito Baerga Colón
(“Plaintiff”), who requests that the Court prohibit Defendants Hospital General Menonita,
Inc. (“Menonita Cayey”) and Menonita Guayama Hospital, Inc. (“Menonita Guayama”)
(collectively, “Menonita Defendants”) from introducing expert witness testimony from
Dr. Paul Louis (“Dr. Louis”). (ECF No. 212; 218). For the reasons that follow, the motion
at ECF No. 212 is DENIED and the motion at ECF No. 218 is GRANTED IN PART
AND DENIED IN PART.
II. Background
The facts underlying the claims in this case have been summarized previously in
the Court’s Order at ECF No. 211 and have little impact on the Court’s resolution of the
instant motion. The Court therefore only recounts the procedural history as relevant to
Plaintiff’s Motion in Limine.
Menonita Defendants initially retained Dr. Gilberto Rodríguez Morales (“Dr.
Rodríguez”) as an expert witness to provide opinion testimony as to all claims of medical
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malpractice brought against them in this action. (ECF No. 192). After Dr. Rodríguez had
submitted his expert report, Menonita Defendants filed an emergency motion to
substitute Dr. Rodríguez due to his inability to continue to serve as an expert because of
medical issues. (ECF No. 192). The Court granted the motion to substitute, specifying
that “Defendants’ new expert witness shall be limited to discussing ‘the same subject
matter as Dr. Rodriguez Morales without meaningful changes.’” (ECF No. 202) (quoting
Morel v. Daimler-Chrysler Corp., 259 F.R.D. 17, 22 (D.P.R. 2009)). The Court, in
discussing motion deadlines, also stated that “[i]f expert’s written report or deposition
‘includes new subject areas’ not addressed by Dr. Rodríguez Morales, Plaintiff may move
in limine to exclude such evidence.” (ECF No. 202) (quoting Morel, 259 F.R.D. at 22).
On February 6, 2026, Menonita Defendants provided notice that Dr. Louis would
serve as their replacement expert. (ECF No. 212 at 3). Dr. Louis prepared two expert
reports, one for each decedent, and was deposed by counsel for Defendants. On April 12,
2026, Plaintiff filed the first instant Motion in Limine seeking to exclude the witness
reports and testimony of Dr. Louis on the basis that it included new subject matter,
analytical frameworks, and theories that were not included in Dr. Rodríguez’s report.
(ECF No. 212). Menonita Defendants filed a Response in opposition on April 23, 2026.
(ECF No. 215). On May 4, 2026, Plaintiff filed the second instant Motion in Limine
seeking to exclude certain testimony from Dr. Louis on the basis that he stated at his
deposition that he would not testify to those topics. (ECF No. 218). Menonita
Defendants filed a Response in opposition on May 18, 2026. (ECF No. 227).
III. Legal Standard
The admission of expert testimony is governed by Federal Rule of Evidence 702.
FED. R. EVID. 702. Rule 702 directs the court to consider the admissibility of expert
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testimony by determining whether “an expert’s proffered testimony ‘both rests on a
reliable foundation and is relevant to the task at hand.’” Carrozza v. CVS Pharmacy, Inc.,
992 F.3d 44, 55–56 (1st Cir. 2021) (quoting Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579, 597 (1993)). Before a party may admit testimony from an expert witness,
however, Rule 26 of the Federal Rules of Civil Procedure requires that the party submit a
written report containing, in relevant part, “a complete statement of all opinions the
witness will express and the basis and reasons for them[,]” as well as “the facts or data
considered by the witness in forming them[.]” FED. R. CIV. P. 26(a)(2)(B). An expert
witness may reasonably supplement, explain, or elaborate on the material set forth in
their Rule 26 report. Gay v. Stonebridge Life Ins. Co., 660 F.3d 58, 64 (1st Cir. 2011).
However, where a party fails to comply with the mandatory disclosure requirements of
Rule 26(a) and their failure was not “substantially justified or . . . harmless[,]” that “party
is not allowed to use that information or witness to supply evidence . . . at a trial[.]” FED.
R. CIV. P. 37(c)(1). The admissibility of expert witness testimony is thus contingent upon
whether the parties “make explicit and detailed expert disclosures” that demonstrate the
reliability and rigor of the proffered opinion. Santiago-Díaz v. Laboratorio Clínico y de
Referencia del Este, 456 F.3d 272, 276 (1st Cir. 2006); see also Rivera-Marrero v.
Presbyterian Cmty. Hosp., 255 F. Supp. 3d 290, 296–97 (D.P.R. 2017) (“[E]xpert-related
disclosures are insufficient when they consist of sketchy and vague descriptions of
anticipated opinions or areas of anticipated testimony.”) (quotations omitted). In sum,
“Rules 26(a) and 37(c)(1) seek to prevent the unfair tactical advantage that can be gained
by failing to unveil an expert in a timely fashion[.]” Poulis-Minott v. Smith, 388 F.3d 354,
358 (1st Cir. 2004).
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Upon the death or incapacitation of a party’s expert witness, Courts have
interpreted these rules to limit the substitute expert to testimony that is “substantially
similar” to that of the original expert. See Stratton v. Thompson/Center Arms, Inc., 608
F. Supp. 3d 1079, 1087–88 (D. Utah 2022). This is because “[i]ntroducing ‘new expert
testimony on the eve of trial’ can prejudice the opposing party[.]” Morel, 259 F.R.D. at 20
(quoting Thibeault v. Square D Co., 960 F.2d 239, 245 (1st Cir. 1992)). The Court, in
performing this fairness analysis, looks to factors including “the need for the challenged
evidence, any justifications, . . . whether the testimony will be meaningfully different from
or cover the same areas as that of the original expert, and the ability of the opposing
counsel to depose or cross-examine the new expert.” Id. Crucially, “[a] late disclosure is
harmless if it ‘occurs long before trial and is likely subject to correction’ without materially
prejudicing the opposing party.” Id. (quoting Samos Imex Corp. v. Nextel
Communications Inc., 194 F.3d 301, 305 (1st Cir. 1999)).
IV. Analysis
A. Motion in Limine at ECF No. 212
Plaintiff argues that Dr. Louis’s testimony should be excluded because his expert
reports “introduce new subject matter, new analytical frameworks, and new theories that
were entirely absent from the original expert’s report and testimony.” (ECF No. 212 at
2). Specifically, Plaintiff argues that Dr. Louis’s reports introduce references to American
Medical Association policies, Medical Staff Essentials, Emergency Severity Index (“ESI”)
analysis, and “point-by-point rebuttals” of Plaintiff’s expert Dr. Dainius Drukteinis (“Dr.
Drukteinis”) that were not discussed by Dr. Rodríguez. (ECF No. 212 at 6–7). Moving
Defendants defend the inclusion of Dr. Louis’ testimony on the grounds that (1) Dr. Louis’
opinions are not meaningfully different from those of Dr. Rodríguez and (2) Plaintiff has
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encountered no material prejudice from any deviations since they deposed Dr. Louis and
had the opportunity to review his written reports. (ECF No. 215 at 4–5).
As a threshold matter, there is absolutely no basis for preventing Dr. Louis from
testifying at all. When a substitute expert testifies outside the bounds of the original
expert’s report in a prejudicial manner, the appropriate remedy is to limit admissible
testimony to that which falls inside the bounds of the original report. See Poulis-Minott,
388 F.3d at 359. Unless the entirety of Dr. Louis’s reports and proffered testimony were
to concern subject matter unconsidered by Dr. Rodríguez (they do not), it is unclear why
Plaintiff believes that the Court’s order at ECF No. 202 could serve as a basis to prevent
Dr. Louis from testifying altogether.
Plaintiff is correct that certain areas of Dr. Louis’s reports introduce new theories
of defense not contemplated in Dr. Rodríguez’s report. With respect to Mr. Baerga
Montes, Dr. Rodríguez’s opinion was confined to the following brief analysis and
conclusion:
It is my opinion that Mr. Hipólito Baerga Montes [sic] death was not directly
caused by his automobile accident. It is my opinion that he had an unrelated
condition to the accident and when he was taken to Hospital Menonita
Cayey on November 24, 2021 with a GCS of 4/15 the alleged one hour delay
to initiate medical treatment was of no consequences and no causal
relationship.
. . .
It is my opinion to a high degree of medical certainty that in this case there
was no departure from the accepted standard of care by the Hospital
Menonita Guayama and the Hospital Menonita Cayey and their personnel.
(ECF No. 222-1 at 7–8). Dr. Rodríguez’s opinion was that Mr. Baerga Montes died of a
condition unrelated to the accident and that any alleged delay at Menonita Cayey bore no
causal relationship to his death. Although he states generally that the staff at both
hospitals met their standard of care, he does not give any explanations or specify any
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theories as to how they did so with respect to Mr. Baerga Montes. Dr. Rodríguez’s report
indicates that Menonita Defendants’ theory was that they did not cause Mr. Baerga
Montes’ death. Dr. Rodríguez’s opinion with respect to Ms. Colón Santiago, although
more detailed in its medical analysis, similarly focuses on the causation of her death
rather than the conduct of the nursing staff. (ECF No. 222-1 at 8).
Dr. Louis’s reports are considerably more detailed in their discussions of the
conduct of the nursing staff at both hospitals and the responsibilities faced by them. See
(ECF No. 222-2 at 5–8); (ECF No. 222-3 at 5–10). Although his bottom-line
conclusions are the same1, Dr. Louis further analyzes the actions of the nursing staffs in
treating and triaging the patients, as well as the “delineation of responsibility” between
physicians and nurses in the event of a premature discharge. While the inclusion of new
sources not relied upon by Dr. Rodríguez, including American Medical Association
policies, and focus on specific metrics, such as ESI, do not rise to the level of “surpris[ing
Plaintiff] with new theories of liability or a new subject matter after the deadlines for
discovery have passed,” Morel, 259 F.R.D. at 21; see also Stratton v. Thompson/Center
Arms, Inc., 608 F. Supp. 3d 1079, 1088 (D. Utah 2022), the additional areas of focus in
Dr. Louis’s reports indicate that the Menonita Defendants’ plan to use their new expert to
focus on the standard of care faced by the nursing staff at these hospitals to rebut claims
that they breached a duty of care. Because Dr. Rodríguez’s report only laid a foundation
to speak to the medical care received by the patients and their cases of death, the proffered
testimony of Dr. Louis does concern new subject areas.
1 See (ECF No. 222-3 at 10) (“Because the cause of death remains undetermined even after post-mortem
forensic examination, it is medically speculative to conclude that earlier intervention would have altered
the outcome. There is no evidence in the medical record to suggest that the nursing staffs’ actions
contributed to the death of Mr. Hipolito Baerga Montes.”).
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These deviations, however, do not create a basis for excluding any portion of Dr.
Louis’s testimony without more. Morel, 259 F.R.D. at 21 (“The untimely disclosure is
harmless because it is not materially prejudicial to plaintiffs.”). Beyond citing case law
and treatises that caution that late substitution of expert witnesses can prejudice parties,
Plaintiff makes no attempt to describe how he specifically will be disadvantaged by Dr.
Louis’s testimony in this litigation. (ECF No. 212 at 7). First, once the substitution of
expert was granted in early October 2025 (ECF No. 202), the court issued a new
scheduling order continuing the trial for eight (8) months to allow plaintiff to conduct
expert discovery (ECF No. 202). Second, plaintiff had the opportunity to depose Dr.
Louis in March 2026, three (3) months prior to trial. See id., 259 F.R.D. at 21 (“Perhaps
most important for the harmlessness analysis [is that] plaintiffs will not be prejudiced by
the substitution because they have time to prepare for cross-examination.”); Ferrara &
DiMercurio v. St. Paul Mercury Ins. Co., 240 F.3d 1, 9–10 (1st Cir. 2001) (holding that
there was no prejudice where a new expert was designated three months before trial).
Finally, it has been four months since Dr. Louis authored his expert reports and was
designated as the replacement expert. Plaintiff has had ample time to prepare for trial
with full notice of the topics of Dr. Louis’s testimony and does not point to any prejudice
he will suffer if Dr. Louis testifies as to topics for which Dr. Rodríguez did not provide a
basis for in his reports. Furthermore, the topics which Plaintiff seeks to prevent Dr. Louis
from testifying to are topics that Plaintiff’s own experts discuss in their expert reports.
See, e.g., (ECF No. 73-6) (Sept. 5, 2024 Expert Report of Dr. Drukteinis) (discussing ESI
at length). Plaintiff would therefore be hard pressed to argue that the introduction of these
topics by Dr. Louis puts him at any disadvantage. Because Plaintiff does not identify any
prejudice or disadvantage, he may suffer, the Motion in Limine at ECF No. 212 is denied.
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B. Motion in Limine at ECF No. 218
In his second Motion in Limine, Plaintiff argues that Dr. Louis’s deposition
testimony excludes him from providing testimony on certain topics. (ECF No. 218 at 2).
Because Dr. Louis agreed with Plaintiff’s counsel at deposition that he would not offer
opinions as to certain topics, Plaintiff argues that Dr. Louis cannot testify as to those
topics at trial. Specifically, Plaintiff contends that Dr. Louis’s statements at deposition bar
him from offering opinions as to (1) the physicians involved in this case, (2) the diagnoses
or lack of diagnoses from the physicians, (3) treatment provided by physicians, (4) the
causes of deaths of Mr. Baerga Montes and Ms. Colón Santiago, and (5) the expert report
of Dr. Rodríguez. Id. After addressing the law underpinning his arguments, the Court
addresses each of these contentions in turn.
In support of his motion, Plaintiff relies on case law discussing the requirement of
supplemental disclosures when an expert testifies outside the bounds of their report
under Federal Rule of Civil Procedure 26. But these cases do not stand for the proposition
that an expert who testifies at deposition that he will not offer an opinion on a specific
topic may not offer an opinion on that topic at trial. Rivera-Marrero, cited extensively by
Plaintiff, discusses that when an expert changes his opinion at deposition, they are subject
to a duty of supplemental disclosure under Federal Rule of Civil Procedure 26(e). Rivera-
Marrero v. Presbyterian Community Hosp., 255 F. Supp. 3d, 290, 296 (D.P.R. 2017). It
does not state that an expert may not offer opinion testimony on certain topics when he
states at deposition that he will not speak to those topics. The other cases cited by Plaintiff
in support of this theory are likewise silent in this regard. See Rodríguez v. Hosp. San
Cristobal, Inc., 91 F.4th 59 (1st Cir. 2024); Doucette v. Jacobs, 106 F.4th 156 (1st Cir.
2024).
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The Court notes, however, that expert testimony on topics which an expert
explicitly stated in deposition testimony they would not testify to would potentially be
unfairly prejudicial under Federal Rule of Evidence 403. See Tenbarge v. Ames Taping
Tool Systems, Inc., 190 F.3d 862, 865 (8th Cir. 1999) (holding that trial testimony by a
medical expert was unfairly prejudicial because it contradicted the expert’s admissions at
deposition); Voegeli v. Lewis, 568 F.2d 89, 96–97 (8th Cir. 1977) (same). Since it is
undisputed that Dr. Louis stated that he was not going to give an opinion as to the matters
mentioned above, and that his expert reports do not provide a basis for such opinions, he
is precluded from doing so at trial. See Rodríguez Perez v. Abreu Garcia, 2024 WL
808654, at *3 (D.P.R. Feb. 27, 2024) (“[T]he Court will not permit Defendants to
circumvent the discovery and disclosure process by allowing [Defendants’ expert] to
testify beyond the bounds of his expert report. To allow otherwise would be highly
prejudicial to Plaintiffs.”); United States v. Varoudakis, 233 F.3d 113, 122 (1st Cir. 2000)
(discussing that unfair prejudice must be avoided under Rule 403).
Menonita Defendants clarify that the scope of Dr. Louis’s opinion is limited to the
nursing staff at Menonita Guayama and Menonita Cayey, and that he will not be offering
opinions with respect to whether the physicians deviated from the standard of care or
whether said deviations caused the deaths of Mr. Baerga Montes and Ms. Colón Santiago.
(ECF No. 227 at 3). They point out, however, that “even though Dr. [] Louis will not be
commenting on the ultimate question regarding Plaintiff’s claims of medical
malpractice against the codefendant physicians, Dr. Louis must nevertheless be allowed
to comment on those aspects of the medical treatment provided by the co-defendant
physicians that relate to his opinions regarding the treatment provided by the
emergency room nursing and non-medical staff in the present case.” (ECF
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Civ. No. 22-1546 (MAJ) Page 10
No. 227 at 4) (emphasis in original). This is supported by both the foundation in Dr.
Louis’s expert reports and the commonsense notion that a medical expert cannot
reasonably give an opinion regarding the conduct of individual members of a multi-
person team without discussing the care received by the patient more broadly. In general
terms, the Court agrees, but since this is contingent on what Dr, Louis might testify at
trial, the Court will not rule on the issue at this time.
As to the contention that Dr. Louis may not testify as to the “cause of death” of Mr.
Baerga Montes and Ms. Colón Santiago, care must be exercised to treat statements in
their proper context and not confuse related rhetoric. At his deposition, Dr. Louis was
asked, “you will not be providing any opinions as to the cause of death of these patients.
Correct?”, to which he responded, “Correct.” (ECF No. 222-4 at 23). This exchange
should be understood in the context of Dr. Louis’s expert reports. With respect to Mr.
Baerga Montes, Dr. Louis stated that “To a reasonable degree of medical certainty, the
cause of death remains undetermined . . . it is medically impossible to assert that an
earlier intervention would have prevented the terminal event.” (ECF No. 222-3 at 9).
In the report regarding Ms. Colón Santiago, Dr. Louis stated “[i]t is overreaching and
speculative to assume that the triage nurse and nursing staff were causally responsible for
the patient’s demise based on the paucity of their documentation.” (ECF No. 222-2 at
8). Understood in this context, Dr. Louis is precluded from giving an opinion as to the
precise cause of deaths of the decedents, but he may opine on whether and how the actions
of the nursing staff contributed to their deaths, if at all.
Finally, Plaintiff’s argument that Dr. Louis may not comment on the expert report
of Dr. Rodríguez is not objected to by the Menonita Defendants. (ECF No. 227 at 8). Dr.
Louis was asked at deposition whether he had read Dr. Rodríguez’s report and whether
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he agreed with it. Dr. Louis responded that he had read it and that “I agree with my report.
I do not plan on commenting on his report.” (ECF No. 222-4 at 42). As such, Dr. Louis
may discuss that he reviewed Dr. Rodríguez’s report but he is precluded from
commenting on the contents of the report in any substantive manner.
V. Conclusion
After careful consideration, Plaintiff’s Motion in Limine at ECF No. 212 is
DENIED and Plaintiff’s Motion in Limine at ECF No. 218 is GRANTED IN PART AND
DENIED IN PART.
It is hereby ORDERED.
In San Juan, Puerto Rico, this 16th day of June, 2026.
/s/ María Antongiorgi-Jordán
MARIA ANTONGIORGI-JORDAN
UNITED STATES DISTRICT JUDGE
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