This medical malpractice suit arises from obstetric care provided to the plaintiff-appellee, Jeannette Rodríguez-Valentin in connection with the birth of her minor son, DALR. A jury found appellant Doctors Center Hospital (Manati), Inc. (“Doctors Center”) liable for 8 percent of a $14,296,000 total award. Doctors Center appeals the denial of its post-verdict motions for judgment as a matter of law, for a new trial, and for remittitur under Federal Rules of Civil Procedure 50 and 59. We affirm.
BACKGROUND
I. Complications During DALRs Birth
Rodríguez-Valentin gave birth to DALR by caesarean section at Doctors Center in Puerto Rico in late September 2008. A few months after his birth, DALR was diagnosed with cerebral palsy. Rodríguez-Valentin alleged that DALRs cerebral palsy resulted from, or was exacerbated by, medical malpractice by treating physicians and nurses during the late stages of her pregnancy and DALRs delivery. This appeal by Doctors Center is pertinent only to the medical care provided by treating nurses employed by Doctors Center.
The nurses alleged malpractice occurred during DALRs birth. Doctors Centers nurses, per a physicians order, began administering the pharmaceutical drug Pitocin to Rodríguez-Valentin at about 9:31 A.M. on September 25 while she was in labor. The Pitocin was intended to aid delivery by reducing the time between Rodríguez-Valentins contractions.
Soon after the nurses administered Pitocin, however, DALRs “heart rate variability,” as documented by a monitor placed on Rodríguez-Valentins abdomen, dropped to a “very minimal level.” At trial, Rodríguez-Valentins expert witness, Dr. Bruce Halbridge, testified that DALRs heart rate variability had been within an appropriate range before the nurses administered Pitocin. Dr. Halbridge explained that the drop in heart rate variability from that appropriate range showed that DALR was not receiving enough oxygen, glucose, or blood through the placenta. Dr. Halbridge noted that such a loss of heart rate variability is the most important signal that a soon-to-be-born baby lacks sufficient oxygen.
Dr. Halbridge identified where and when the nurses should have seen the changes in heart rate variability. Specifically, according to Dr. Halbridge, DALRs heart rate variability issues occurred in several, sometimes prolonged, “episodes” throughout Rodríguez-Valentins labor. Dr. Halbridge testified that, in his opinion, by the third “episode” of decreased heart rate variability, the treating nurses should have stopped administering Pitocin, placed Rodríguez-Valentin on her left side, increased her IV fluid intake, provided her with an oxygen mask, and notified a physician about the drop in DALRs heart rate variability.
Rodríguez-Valentins labor continued for eight hours after the nurses began administering Pitocin. During this time the treating nurses failed to recognize or act on the drop in DALRs heart rate variability, failed to stop administering Pitocin, and failed to notify any physician about the change in DALRs heart rate variability.
Dr. Halbridge testified that oxygen deprivation during the delivery increased DALRs brain damage and aggravated his cerebral palsy. Dr. Halbridge noted that, had the nurses notified a physician, the caesarean section could also have been expedited, which likely would have reduced the severity of DALRs injuries because he would have spent less time without sufficient oxygen.
In defense of the nurses conduct, Doctors Center offered the testimony of two expert witnesses in obstetrics, Dr. Alberto de la Vega Pujol and Dr. Edgar Solis. These physicians disagreed with Dr. Halbridge, opining that DALRs heart rate variability was adequate during labor and that there was no evidence that DALR suffered any oxygen deficiency during delivery. Dr. Solis also testified that neuroradiological testing conducted after DALRs birth supported his opinion that DALR did not suffer from oxygen deficiency during delivery.
II. Testimony about DALRs Life Care Expenses
Rodríguez-Valentin claimed considerable damages for DALRs future life care costs. Specifically, Gerri Pennachio testified for Rodríguez-Valentin as a “life care planning expert,” opining about the yearly cost of DALRs care and treatment. According to Pennachio, these costs would include necessary equipment, doctor visits, testing, and physical therapy, among other items. Pennachio determined that DALR would require $278,021.57 per year until age 18. After age 18, Pennachio opined, DALR would need $379,235.57 per year.
On cross-examination, Doctors Center dissected Pennachios calculations, asking her whether she had offset the yearly amounts by contributions made by insurance or the government and whether she had based her calculations on costs in Florida (where DALR lived at the time of trial) as opposed to Massachusetts (where DALR had lived before moving to Florida). Pennachio acknowledged that she had not offset her calculations based on contributions made by insurance or the government. She did not dispute that she derived her calculations from cost information in Massachusetts even though, at the time of trial, Rodríguez-Valentin and DALR lived in Florida.
Additionally, Pennachio acknowledged on cross-examination that she did not discount her yearly estimates to present value. Rather, she opined, the cost increases for DALRs medical care and life care over his lifetime would offset any applicable discount rate.
Per a pre-trial ruling on Doctors Centers motion in limine, the court prohibited Pennachio (who lacked requisite expertise) from opining about DALRs life expectancy given his medical condition.
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Ultimately, neither Doctors Center nor Rodríguez-Valentin presented any expert testimony about DALRs life expectancy.
III. Jury Instructions and Verdict
Consistent with the parties proposed instructions, the court instructed the jury that it could award compensatory damages to Rodríguez-Valentin and DALR for damages they were “reasonably likely to suffer in the future.” It instructed the jury that it should be “guided by common sense” in fashioning any award and that it could not engage in “arbitrary guesswork.” The court added that the law does not require proof of the amount of damages “with mathematical precision but only with as much definiteness and accuracy as the circumstances permit.” It asked the jury to use “sound discretion” and to draw “reasonable inferences” where appropriate from the “facts and circumstances in evidence.”
With respect to DALRs life expectancy, Doctors Center did not seek either a ruling from the judge that life expectancy must be proved by expert testimony or a suitable modification to the courts jury instruction on damages. Nor did Doctors Center request a special verdict form on DALRs life expectancy. In the end, Doctors Center permitted the case to go to the jury without making any argument about how the lack of expert testimony on life expectancy should impact the jurys calculation of DALRs future life care costs.
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The jury found Doctors Center liable and awarded $12,996,000 in future life care costs to Rodríguez-Valentin and DALR. The jury awarded an additional $1,300,000 for physical and emotional pain and suffering. The jury apportioned 92 percent of that liability to two treating physicians with whom Rodríguez-Valentin settled prior to trial. The jury apportioned to Doctors Center the remaining 8 percent, which sums to $1,143,680.
IV. Post-Verdict Motions
After the jurys verdict, Doctors Center renewed
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a motion for judgment as a matter of law under Rule 50 and moved for a new trial and/or remittitur of the damages award under Rule 59.
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Doctors Center argued, as it does on appeal, that Rodríguez-Valentins evidence was insufficient to support the jurys verdict as to liability or, alternatively, that the weight of the evidence required the jurys verdict to be overturned and a new trial to be held. As to remittitur of the damages award or a new trial on damages, Doctors Center argued that the jurys award for future life care costs was speculative because Rodríguez-Valentin failed to submit expert testimony about DALRs life expectancy. Doctors Center also argued that Pennachios calculations were deficient.
The district court denied Doctors Centers motions. As to Doctors Centers motions for judgment as a matter of law and for a new trial on liability, the district court found that Dr. Halbridges testimony supported the jurys verdict. As to the motion for a new trial on damages and/or remittitur, the district court stated that the jury could have determined that DALRs life expectancy was 46 years
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by dividing the award for future care costs by the amount that Pennachio testified DALR would require for care each year. The district court, however, acknowledged that the life expectancy of a child with cerebral palsy “likely would be a proper subject for expert testimony.” Nonetheless, the district court concluded that the jury in this case could issue an award for future costs without expert testimony on life expectancy because damages in a negligence action need not be shown with mathematical certainty.
The court also stated that other jurisdictions permit a jury to infer life expectancy from testimony about the injured persons medical condition and pain and suffering. While acknowledging that “the far better practice would have been for both parties to present competent expert testimony of plaintiffs life expectancy,” the district court found that the jurors could make a reasonable estimate of DALRs life expectancy based on their common sense, personal knowledge, and experience. The district court also reasoned that the jury heard and rejected Doctors Centers arguments about errors in Pennachios calculations for DALRs future life care costs.
DISCUSSION
Doctors Center appeals the district courts denial of its motions for judgment as a matter of law, for a new trial, and for remittitur of the jurys damages award. We address each matter in turn, and, in the end, affirm the district courts rulings.
I. Judgment as a Matter of Law
Doctors Center challenges the district courts denial of its renewed motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b). Doctors Center contends that the district court erred by denying the motion because Doctors Center presented the expert testimony of Drs. de la Vega and Solis, both of whom opined, in contention with Dr. Halbridge, that the nurses acted appropriately under the circumstances.
The court reviews de novo the denial of a renewed, post-verdict motion for judgment as a matter of law under Rule 50(b). See Fresenius Med. Care Holdings, Inc. v. United States, 763 F.3d 64, 67 (1st Cir. 2014). “If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue,” the court can order a new trial or direct the entry of judgment in the moving partys favor as a matter of law. See Fed. R. Civ. P. 50(a)-(b). A trial court evaluating a motion for judgment as a matter of law under Rule 50(b) must “view the evidence in the light most flattering to the verdict and must draw all reasonable inferences therefrom in favor of the verdict.” Fresenius, 763 F.3d at 67-68.
Under Puerto Rico law,
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to prove medical malpractice the plaintiff must demonstrate, by a preponderance of the evidence, an applicable standard of care, that the defendant acted or failed to act in violation of the applicable standard of care, and a sufficient causal connection between the defendants act or failure to act and the plaintiffs injuries. See Pagés-Ramírez v. Ramírez-González, 605 F.3d 109, 113 (1st Cir. 2010). Viewing the evidence in the light most favorable to Rodríguez-Valentin, the jurys verdict finding Doctors Center liable for medical malpractice is supported by the evidence. The district court did not err in denying Doctors Centers motion for judgment as a matter of law.
Doctors Centers primary argument is that the district court should have given greater weight to the testimony of its experts as opposed to that of Dr. Halbridge. But, as the district court found, Dr. Halbridges opinion (i.e., that the nurses breached the applicable standard of care by failing to stop administering Pitocin and by failing to inform treating physicians that DALRs heart rate variability had decreased) was sufficient to support the jurys verdict as to those issues. The jury was entitled to credit Dr. Halbridges testimony over that of Drs. de la Vega or Solis. See Feliciano-Hill v. Principi, 439 F.3d 18, 26 (1st Cir. 2006); Lama v. Borras, 16 F.3d 473, 478 (1st Cir. 1994).
Doctors Center also argues that the jury could not find liability based on Dr. Halbridges testimony because he opined that the nurses breached a standard of care applicable generally in the United States as opposed to a standard of care specific to Puerto Rico. We find no merit to Doctors Centers argument. The district court instructed the jury that the standard of care in this case was “equal to the degree of care exercised by other nurses in the same or similar localities.”
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Dr. Halbridge, having described what the applicable standard of care for the nurses would be, added that, as to the nurses in this case, the standard of care was the same as the standard of care in the United States generally. For purposes of this case, the jury was entitled to credit Dr. Halbridges opinion that the applicable standards of care in Puerto Rico and the rest of the United States are the same. See Lama, 16 F.3d at 478.
Doctors Centers other arguments about the sufficiency of the evidence are without merit and do not warrant further discussion. The district court correctly denied Doctors Centers motion for judgment as a matter of law.
II. Motion for a New Trial as to Liability
Leveraging the same arguments presented in its motion for judgment as a matter of law under Rule 50, Doctors Center contends that the district court erred by denying its motion for a new trial under Federal Rule of Civil Procedure 59. Under Rule 59, “[t]he court may, on motion, grant a new trial on all or some of the issues -- and to any party -- ․ after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed. R. Civ. P. 59(a)(1)(A). “A district courts power to grant a motion for new trial is much broader than its power to grant a [Rule 50 motion.]” Jennings v. Jones, 587 F.3d 430, 436 (1st Cir. 2009).
A trial judge may grant a new trial if the jurys verdict is “against the weight of the evidence” or if “action is required in order to prevent injustice.” Id. at 436. A district court can independently weigh the evidence when evaluating a motion for a new trial under Rule 59 and therefore can determine that a witness or evidence lacks credibility; in other words, the court need not take the evidence in the light most favorable to the nonmoving party. Id.
At the same time, trial judges “do not sit as thirteenth jurors, empowered to reject any verdict with which they disagree.” Id. Indeed, when reviewing a denial of a motion for new trial that was, at bottom, based on sufficiency of the evidence, the standards under Rule 50 and Rule 59 effectively “merge.” See Dimanche v. Mass. Bay Transp. Auth., 893 F.3d 1, 8 n.9 (1st Cir. 2018). Moreover, our review of the district courts denial of Doctors Centers motion for a new trial is only for abuse of discretion. Jennings, 587 F.3d at 435-37.
Considering the deferential abuse-of-discretion standard alongside the reality that Doctors Centers arguments under Rule 59 and Rule 50 are based on the same sufficiency-of-the-evidence grounds, we affirm the district courts denial of Doctors Centers motion for a new trial as to its liability. In other words, consideration of the same facts that lead us to affirm the district courts denial of the motion as brought under Rule 50 likewise lead us to affirm as to Rule 59. Dr. Halbridge was a qualified expert witness who testified that Doctors Centers nurses breached the applicable standard of care during Rodríguez-Valentins labor and DALRs birth. He explained why that breach of the standard of care caused or aggravated DALRs injuries. The jury was entitled to credit Dr. Halbridges testimony over that of Doctors Centers experts. The district court did not abuse its discretion in deferring to the jurys credibility findings.
Doctors Center points to no facts that convince us the jurys verdict as to liability was against the weight of the evidence or was otherwise unjust. Indeed, the district courts analysis of the evidence presented at trial was accurate, thoughtful, and thorough, leaving us with no doubt that the decision was within its considerable discretion. See id. at 441.
III. Motions for a New Trial on Damages or Remittitur of Future Life Care Costs Award
Lastly, Doctors Center contends that the district court abused its discretion by denying its motion for a new trial or remittitur on the ground that the jurys $12,966,000 award for DALRs future life care costs was excessive and unsupported by the evidence. Specifically, Doctors Center argues that the award for future care costs should be reduced, or a new trial on damages granted, because Rodríguez-Valentin presented no expert testimony about DALRs life expectancy and because Pennachio based her calculations on erroneous assumptions.
As with motions for a new trial on liability, appellate review for denial of a motion for a new trial on damages or remittitur under Rule 59 is for abuse of discretion. See id. at 435-36. The denial of such a motion “will be reversed only if ‘the jurys verdict exceeds any rational appraisal or estimate of the damages that could be based on the evidence before the jury.’ ” Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 13 (1st Cir. 2009) (quoting Smith v. Kmart Corp., 177 F.3d 19, 29 (1st Cir. 1999)). When evaluating a motion for a new trial on damages, or for remittitur, the court considers the evidence in the light most favorable to the prevailing party. Wortley v. Camplin, 333 F.3d 284, 297 (1st Cir. 2003).
Under Rule 59, an award for future life care costs is rational when it is supported by the evidence, reasonable inferences from that evidence, and the jurys common sense, as opposed to speculation or conjecture. See Astro-Med, Inc., 591 F.3d at 13; Climent-García v. Autoridad de Transporte Marítimo y Las Islas Municipio, 754 F.3d 17, 23-24 (1st Cir. 2014). And a district court does not abuse its discretion by declining to reduce a jurys verdict or award a new trial where the grounds for doing so derive from the movants speculation about what the jury might have found or what evidence not presented might have demonstrated. See Loan Modification Grp., Inc. v. Reed, 694 F.3d 145, 154 (1st Cir. 2012). Here, the jurys verdict was not beyond “any rational appraisal or estimate of the damages that could be based upon the evidence before the jury.” See id. Doctors Centers arguments fail to convince us otherwise.
First, Doctors Center contends that the district court abused its discretion by denying its motion under Rule 59 because Rodríguez-Valentin did not present expert testimony about DALRs life expectancy. Specifically, Doctors Center argues that, under Puerto Rico law, an award for future care costs is speculative unless the plaintiff submits expert testimony about his or her life expectancy. Given the procedural posture of this case and waivers by Doctors Center, as explained below, we do not reach the legal question of whether Puerto Rico law requires such expert testimony.
Doctors Center did not timely argue to the district court that the jury could consider DALRs future care costs only by reference to expert testimony. Similarly, Doctors Center did not timely argue that the jury had to make an estimate of DALRs life expectancy, or even that it needed to calculate DALRs future care costs in any particular way. Indeed, Doctors Centers life expectancy argument was not part of its motion for judgment as a matter of law. It was neither reflected in any of Doctors Centers proposed jury instructions nor posed as an objection. Likewise, Doctors Center did not ask for a special verdict form that would have required the jury to decide or agree upon DALRs life expectancy.
Instead, Doctors Center first argued that expert testimony on life expectancy was required after the jury delivered an adverse verdict, in the context of a motion for a new trial or remittitur reviewable only for abuse of discretion.
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Because the district court had, without objection, already instructed the jury on how to calculate damages for future life care costs, Doctors Centers argument that the jury could not, as a matter of law, return a damages award for future life care costs without expert testimony on life expectancy came much too late.
In other words, Doctors Center knew before the jury was instructed that no expert testimony had been presented on life expectancy and that none would be. Nonetheless, Doctors Center neither moved for judgment as a matter of law on that ground nor offered a jury instruction asking the jury to estimate and agree on DALRs life expectancy or to calculate that figure in any particular way. See Cheshire Med. Ctr. v. W.R. Grace & Co., 49 F.3d 26, 35-36 (1st Cir. 1995) (affirming denial of motion for a new trial where moving party failed to “object precisely on” the pertinent ground and failed to “propose[ ] to the trial judge an acceptable instruction to the jury”). And, Doctors Center voiced no objection to the district courts instruction on calculating damages, which was, in short, to award Rodríguez-Valentin “fair compensation” of a “reasonable” amount to compensate her and DALR for physical, emotional, and economic injuries to whatever extent Doctors Center was legally liable.
With no pertinent argument made by Doctors Center before the case was submitted to the jury, the district courts jury instructions are the law of the case. United States v. Oliver, 19 F.4th 512, 517 (1st Cir. 2021) (“Because the defendant neither objected to the district courts instructions below nor assigns error to them on appeal, we treat the instructions as the law of the case.”); United States v. Kilmartin, 944 F.3d 315, 328-29 (1st Cir. 2019) (holding that an unobjected-to jury instruction that is neither patently incorrect nor internally inconsistent becomes the law of the case); Moore v. Murphy, 47 F.3d 8, 11 (1st Cir. 1995) (“The failure to object to the instructions at the time, and in the manner, designated by Rule 51 is treated as a procedural default, with the result that the jury instructions, even if erroneous, become the law of that particular case.”).
At best, we can review the district courts instructions on this issue for plain error. See Fed. R. Civ. P. 51(c)-(d) (stating when objections to jury instructions must be made and that the consequence for failing to timely object to a jury instruction is review for “plain error” that “affects substantial rights”); Sindi v. El-Moslimany, 896 F.3d 1, 19-20 (1st Cir. 2018) (“It is black-letter law that claims of instructional error not seasonably advanced in the district court can be broached on appeal only for plain error.”); see also P.R. Hosp. Supply, Inc. v. Boston Sci. Corp., 426 F.3d 503, 505 (1st Cir. 2005) (“In general, ‘a party may not appeal from an error to which he contributed, either by failing to object or by affirmatively presenting to the court the wrong law.’ ”). For Doctors Center to prevail under plain error review, we must at least conclude that the claimed error was clear or obvious. See Sindi, 896 F.3d at 19-20; Babcock v. Gen. Motors Corp., 299 F.3d 60, 65 (1st Cir. 2002).
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We cannot do so here. Doctors Center offers no authority demonstrating that it is clearly the case under Puerto Rico law that a plaintiff must present expert testimony about life expectancy to receive damages for future care costs in a medical malpractice action. Although we agree with the district court that presenting expert testimony about life expectancy is the best practice in a medical malpractice case involving an uncommon and severe medical condition and a request for future costs, we can find no authority clearly establishing that such expert testimony is necessary to recover damages for future care costs as a matter of law in Puerto Rico. Rather, the only arguably relevant authorities offered here are the Puerto Rico Supreme Court cases relied on by the district court in denying Doctors Centers motion, Zambrana v. Hospital Santo Asilo de Damas, 9 P.R. Offic. Trans. 687, 692, 109 D.P.R. 517 (1980), and Suro v. E.L.A, 111 P.R. Dec. 456, 461 (1981), which merely stand for the general principle that damages need not be computed with mathematical rigor or precision.
Thus, if there were any error under Puerto Rico law in the district courts instructions on how to calculate damages, it was not plain. See Sindi, 896 F.3d at 19-20; Babcock, 299 F.3d at 65. Considering those instructions, the evidence that was presented, and Doctors Centers failure to timely raise its legal argument on the need for expert testimony on life expectancy, the district court did not abuse its discretion in denying the motion.
Finally, Doctors Center takes issue with Pennachios opinion about DALRs future life care costs because Pennachio did not discount her calculations to present value, used numbers based on costs in Massachusetts instead of Florida, and did not offset her calculations for possible contributions by insurers or the government. The jury, however, heard extensive evidence about DALRs condition and the care that he required. The district court allowed Doctors Center substantial leeway in cross-examining Pennachio about the accuracy of her calculations.
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Doctors Centers cross-examination of Pennachio included questions about whether she discounted her numbers to present value, whether she used accurate regional cost-of-living expenses, and whether she considered potential offsetting contributions. And Pennachio explained, as one example, that her methodology did not require discounting her numbers to present value because the prospect of inflation offset the discount rate. The jury was therefore able to assess Pennachios testimony, including Doctors Centers criticisms of her methodology, in fashioning its damages award. See Casco, Inc. v. John Deere Constr. & Forestry Co., 990 F.3d 1, 13-14 (1st Cir. 2021) (rejecting argument that a new trial or remittitur was necessary due to claimed methodological errors by plaintiffs damages expert).
Doctors Centers other arguments regarding the jurys damages award -- including its contention that the damages are excessive in light of comparable cases -- are unpersuasive and do not merit discussion.
At bottom, the jurys verdict was not beyond “any rational appraisal or estimate of the damages that could be based upon the evidence before the jury.” Accordingly, the district court did not abuse its discretion in denying Doctors Centers motion for a new trial and, in the alternative, remittitur.
CONCLUSION
In sum, the district court did not err or abuse its discretion in deferring to the jurys evaluation of the evidence. Accordingly, the district courts order denying Doctors Centers motions for judgment as a matter of law, for a new trial, or for remittitur is affirmed.
FOOTNOTES
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. In addition, prior to Pennachios testimony, the court denied a motion by Doctors Center to limit Pennachios testimony to only one year of expenses.
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. During closing arguments, Doctors Center objected to Rodríguez-Valentins observation that there was no evidence presented by either side about life expectancy on the ground that Rodríguez-Valentins counsel was improperly “talking about life expectancy.” The court overruled Doctors Centers objection.
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. As it was required to do to preserve its arguments, Doctors Center moved for judgment as a matter of law for the first time before the matter was submitted to the jury. See Fed. R. Civ. P. 50(a); Santos-Arrieta v. Hospital del Maestro, 14 F.4th 1, 8 (1st Cir. 2021). The district court deferred ruling on the motion, and Doctors Center renewed its motion after the jurys verdict.
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. Doctors Center filed its three motions together as part of one omnibus legal document.
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. DALR was 10 years old at the time of trial, so, under these calculations, he would be expected to live another 36 years.
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. The substantive law of Puerto Rico controls in this diversity suit. See Cortés-Irizarry v. Corporación Insular de Seguros, 111 F.3d 184, 189 (1st Cir. 1997).
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. Since it is not a matter challenged on appeal, we make no ruling about whether the district courts instruction was the correct interpretation of Puerto Rico law.
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. In its earlier motion in limine, Doctors Center argued that Pennachio should be precluded from testifying about DALRs life expectancy. Doctors Center did not argue that the jury could not award future costs without expert testimony about life expectancy.
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. As we conclude that there was no clear or obvious error, we need not reach the other aspects of plain error, which include whether the claimed error affected the appellants substantial rights and “seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” Fothergill v. United States, 566 F.3d 248, 251-52 (1st Cir. 2009).
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. On appeal, Doctors Center challenges the methodology of Pennachios opinions and does so only in the context of a new trial or remittitur, as opposed to admissibility under the Federal Rules of Evidence. Doctors Center does not challenge Pennachios expertise.
MCCAFFERTY, District Judge.