Psychiatry Expert Witness' Testimony Regarding Plaintiff's Pain and Suffering Related to his Defamation Claims Rejected

Psychiatry Expert Witness’ Testimony Regarding Plaintiff’s Pain and Suffering Related to his Defamation Claims Rejected

In this pending lawsuit, which was the product of consolidated cases: Case No. 20-1074, the Lead Case, and Case No. 22-1186, the Member Case, Fazio filed a second amended complaint in the Lead Case against Metropolitan Casualty Insurance Company (“Metropolitan Casualty”), Naihomi Figueroa Fontánez (“Ms. Figueroa”), and Isaías Soto Reyes (“Mr. Soto”) on September 29, 2020. In the complaint, Fazio alleged that while being transported in an Uber ride, his vehicle was struck from behind while stopped at a traffic light, resulting in damages. Fazio contended that all Defendants were jointly and severally liable, entitling him to compensation in excess of one million dollars ($1,000,000). Fazio further alleged that James River breached the provisions of the uninsured motorist coverage as part of a policy issued to Uber “for the benefit of Uber drivers and passengers” by denying coverage and by failing to compensate him for his injuries. Additionally, in the Lead Case, Fazio brought five additional causes of action against James River alone: breach of contract, contractual breach of the implied covenant of good faith and fair dealing, tortious breach of the implied covenant of good faith and fair dealing, bad faith, and unfair claim adjustment practices. In the Member Case, on June 22, 2022, Fazio filed an amended complaint against James River alone, alleging violations of Article II, Section 8 of the Constitution of the Commonwealth of Puerto Rico; violations of the Puerto Rico Libel and Slander Act of 1902, 32 L.P.R.A. §§ 3141-3149; and violations of the general tort provisions of Puerto Rico Civil Code Articles 1536 and 1538, 31 L.P.R.A. §§ 10801 and 10803. In this 2022 lawsuit, Fazio alleged that James River defamed him during the pendency of the Lead Case. On October 6, 2022, James River filed a motion to dismiss all claims in the Member Case, resulting in the Court dismissing with prejudice one of the three causes of action: Fazio’s claim that James River defamed him with its use of the word “extort” during an email exchange between the parties. On September 30, 2022, the Court consolidated both cases. On February 23, 2024, the Court granted James River’s motion for summary judgment as to the remaining two causes of action in the Member Case.

Fazio requested that Fernando Cabrera Jr.’s testimony, whom Defendant James River Insurance Company (“James River”) had declared as an expert witness, be excluded from trial on Daubert grounds and because it violated the Court’s orders.

Psychiatry Expert Witness

Fernando Cabrera is a distinguished and proven expert psychiatrist who has various decades of experience testifying in the Puerto Rico State and Federal Courts. He has over 42 years of experience in the medical field. He graduated from Universidad Central Del Caribe School of Medicine in 1981.

Discussion by the Court

Fazio argued that Cabrera’s report should be excluded on Daubert grounds. Fazio first contended that Cabrera’s opinions in his expert report were not reliable because his methodology and analysis were flawed. The Court found that Fazio did not provide any specificity in his argument that cast a shadow on the methodology used in Cabrera’s report. The methodology behind Cabrera’s report was composed of Fazio’s biodata, description of present illnesses, family history, mental status, and Diagnostic and Statistical Manual of Mental Disorders (“D.S.M.-5”) information, and Cabrera’s observations from a one-and-a-half-hour interview with Fazio and conclusions. Fazio cited various jurisprudence examples of when an expert’s methodology was erroneous but did not apply the principles outlined in the jurisprudence that he cited to Cabrera’s report. For example, Fazio did not explain what facts Cabrera failed to consider, why his conclusions could not have been reached from conducting a one-and-a-half-hour interview, how his methodology was erroneous, or how he conducted a faulty investigation.

Fazio also asserted that Cabrera’s testimony should be excluded because it related almost entirely to the Lead Case, in violation of the Court’s orders. At the time Cabrera was retained, his interview with Fazio was conducted, and his report was produced, discovery in the Lead Case had concluded and the parties were ordered to continue discovery for only the Member Case. However, contrary to what Fazio was suggesting, the facts and damages relating to the Member Case, that is Fazio’s defamation claims, could not be considered in isolation apart from the Lead Case. To accurately determine Fazio’s pain and suffering relating to his defamation claims, a jury would have to be made aware of any pain and suffering Fazio had before the alleged defamation happened, so it could discount said pain and suffering and ensure that Fazio was only being awarded damages relating to the defamation claims. Therefore, it was not improper that Cabrera’s report discussed predefamation pain and suffering. Moreover, it was Fazio who brought the Lead Case and moved to consolidate. Thus, the Court held that Fazio cannot complain that information relating to the Lead Case was being discussed to provide a clear and complete picture of the Member Case.

However, there were two other concerns that needed further discussion warranting Cabrera’s testimony to be excluded at trial. First, Fazio’s motion asserted that Cabrera’s expert report failed to comply with the expert disclosures required under Fed. R. Civ. P. 26(a)(2)(B). The Court observed that James River did not address this failure to provide expert disclosures in its opposition. Nor could Cabrera’s report, on its face, satisfy all of the requirements under Fed. R. Civ. P. 26(a)(2)(B). For example, the report did not refer to compensation paid for Cabrera’s testimony, any publications in the last decade, and previous testimony during the last four years.

Second, even if James River had provided the expert disclosures, the Court declared it was apparent that Cabrera was retained solely for the Member Case. The discovery phase of the Lead Case had closed on August 31, 2021. On November 8, 2022, the Court reiterated that the discovery phase in the Lead Case had closed and set deadlines for further discovery relating solely to the Member Case. Thereafter, on December 30, 2022, James River informed the Court that it had retained Cabrera, among others. Therefore, because discovery of the Lead Case was already closed, James River retained Cabrera solely for the Member Case. Moreover, the only medical opinion that Cabrera gave was regarding the Member Case: “My medical opinion is that Fazio has no emotional conditions that are secondary [to], or related to, the supposed defamation h[e] is alleging in his Complaint against [James River] and its lawyers.” Cabrera’s report, although it made references to circumstances surrounding the Lead Case, was prepared solely for the Member Case, not the Lead Case. In light of the Opinion and Orders dismissing Fazio’s defamation claims entirely, the need to have Cabrera testify about the damages suffered as a result of said claims is moot. Accordingly, Cabrera was not allowed to testify at trial, and Fazio’s motion in limine was granted.


The Court granted Plaintiff’s motion to exclude Fernando Cabrera Jr.’s testimony.

The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

Key Takeaways:

When challenging expert testimony on Daubert grounds, specific arguments regarding methodology’s reliability are crucial, as generalized criticisms may not suffice to exclude the testimony. Additionally, expert testimony should be directly relevant to the case at hand, and even if certain aspects relate to other cases, they may be admissible if they contribute to a clear understanding of the current case. It’s imperative for expert reports to comply with legal requirements outlined in the Federal Rules of Civil Procedure, as failure to meet these requirements can be grounds for exclusion. Moreover, experts should be retained within the appropriate scope of the case, and their involvement should align with the specific aspects they are retained for. If expert opinions are not directly relevant to the issues in the case, they may be deemed inadmissible. Lastly, if certain aspects of the case become moot or irrelevant due to court rulings or other developments, expert testimony related to those aspects may be excluded. Overall, careful consideration of the reliability, relevance, compliance with legal requirements, and scope of retention of expert testimony is essential to ensure its meaningful contribution to the case resolution.

Case Details:

Case Caption:Fazio V. James River Insurance Company Et Al
Docket Number:3:20cv1074
Court:United States District Court, Puerto Rico
Citation:2024 U.S. Dist. LEXIS 34462
Order Date:February 23, 2024


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