Expert Testimony Is Required to Prove Non-Negligible Risk in Massachusetts Informed-Consent Claims: The First Circuit’s Clarification in Meka v. Haddad

Introduction

In Meka v. Haddad, the United States Court of Appeals for the First Circuit affirmed a grant of summary judgment against plaintiffs Rohini Meka and her husband, Suresh Chirumamilla, in a medical informed-consent case under Massachusetts law. The suit alleged that Dr. Hani Haddad, an obstetrician affiliated with Valley Women’s Health Group, LLC, failed to obtain Meka’s informed consent before performing a forceps-assisted vaginal delivery during which Meka suffered a pelvic fracture.

Two key appellate issues framed the dispute: first, whether the district court abused its discretion in refusing to reconsider an order striking the plaintiffs’ expert witnesses for discovery noncompliance; second, whether the plaintiffs’ informed-consent claim could reach a jury without expert testimony under a “common knowledge” theory. The First Circuit answered both in the negative, clarifying the evidentiary burden for informed-consent claims and underscoring the rigor of federal procedural enforcement when parties do not make retained experts available for deposition.

Summary of the Opinion

The First Circuit (Barron, C.J., joined by Gelpí and Aframe, JJ.) affirmed:

The district court did not abuse its discretion when it denied the plaintiffs’ motion to vacate (treated as a motion to reconsider under Rule 54(b)) the earlier order striking the plaintiffs’ experts for failure to produce them for deposition and failure to oppose the motion to strike. The plaintiffs delayed for months, did not confront the reasons for the sanction, and sought relief only a month before trial.
Summary judgment for the defendants on the informed-consent claim was proper because the plaintiffs, having no experts, could not prove a necessary element: that the undisclosed risk (pelvic fracture from a forceps-assisted delivery) was “something more than negligible” under Massachusetts law. The “common knowledge” exception could not substitute for medical expert testimony on the materiality of this obstetrical risk.

The court did not reach whether expert testimony would also be required on causation (i.e., that the failure to disclose caused the injury), because the absence of proof on the non-negligible risk element was dispositive.

Analysis

Precedents and Authorities Cited

Precourt v. Frederick, 481 N.E.2d 1144 (Mass. 1985) — Foundational Massachusetts case establishing that informed-consent liability requires proof that an undisclosed risk was material, which excludes “remote” (negligible) risks. The court drew on Precourt to emphasize that a physician need not disclose remote risks and that a plaintiff must show the risk was more than negligible. This case underpins the expert testimony requirement where risk materiality is not within lay understanding.
Kissinger v. Lofgren, 836 F.2d 678 (1st Cir. 1988) — Applying Massachusetts law, this decision reiterated that remote risks are immaterial as a matter of law, reinforcing the necessity of proof (typically expert) to cross the “more than negligible” threshold.
McMahon v. Finlayson, 632 N.E.2d 410 (Mass. App. Ct. 1994) — Notes that the materiality of a risk is a jury question “once apprised of the risk.” This formulation implies that expert testimony is commonly needed first to inform the jury about the existence and magnitude of the risk before the jury can decide materiality. The First Circuit’s opinion hews to that logic.
Harrison v. United States, 284 F.3d 293 (1st Cir. 2002) — The court distinguished Harrison because, there, the non-negligible nature of the risk was uncontested on appeal; thus, it did not help the plaintiffs overcome the need for expert proof here.
Cook v. Iacono, 174 N.E.3d 329, 2021 WL 3889513 (Mass. App. Ct. 2021) (unpublished) — Not instructive on informed-consent standards because it did not analyze the risk-materiality or expert testimony questions.
Minturn v. Monrad, 64 F.4th 9 (1st Cir. 2023) — Cited for the de novo standard of review for summary judgment; facts are viewed favorably to the nonmovant.
Biltcliffe v. CitiMortgage, Inc., 772 F.3d 925 (1st Cir. 2014) — Supplies the abuse-of-discretion standard for reviewing the denial of a motion for reconsideration.
United States ex rel. Booker v. Pfizer, Inc., 847 F.3d 52 (1st Cir. 2017) and Commonwealth Sch., Inc. v. Commonwealth Acad. Holdings LLC, 994 F.3d 77 (1st Cir. 2021) — The “merger doctrine” permits appellate review of antecedent interlocutory orders (here, the denial of reconsideration of the sanctions order) upon appeal from a final judgment, even if the notice of appeal names only the final judgment.
Ortega Cabrera v. Municipio de Bayamón, 562 F.2d 91 (1st Cir. 1977) — Waiver principle: arguments not developed on appeal are forfeited. The court applied this twice: (1) plaintiffs did not challenge the treatment of their filing as a reconsideration motion, and (2) they did not contest reliance on Rule 37(c)(1).
Lohnes v. Level 3 Communications, Inc., 272 F.3d 49 (1st Cir. 2001) — Provides the Rule 37(c)(1) rubric that a failure to disclose is sanctionable unless “substantially justified or harmless.” Cited by defendants to support exclusion of experts after plaintiffs failed to make experts available for deposition.
Federal Rules of Civil Procedure 26(b), 37(c)(1) — The defendants moved to strike under discovery rules after plaintiffs failed to produce experts for deposition; the district court struck the experts and the plaintiffs did not timely oppose or remedy. Plaintiffs did not contest the applicability of Rule 37(c)(1) on appeal, leading to waiver.
D. Mass. Local Rules 7.1 and 37.1 — Plaintiffs argued the defendants failed to confer before moving to strike, but the First Circuit emphasized that plaintiffs’ appellate arguments attacked the underlying order, not the denial of reconsideration; their failure to address the reconsideration standard was fatal.

Legal Reasoning

1) Denial of Reconsideration of the Sanctions Order

The district court treated the plaintiffs’ “motion to vacate” as a motion for reconsideration of its earlier order striking experts. On appeal, plaintiffs did not argue that this characterization was wrong; therefore, the First Circuit reviewed for abuse of discretion.

The court affirmed because:

Plaintiffs waited more than three months to seek reconsideration and did so only one month before trial. The district court found counsel had been “aware since at least mid-December” of the order yet did nothing to address it until mid-March.
Plaintiffs failed to confront the reason their experts were stricken—failure to make the experts available for deposition—and offered no persuasive justification or remedial plan. A generalized explanation about email issues did not explain the prolonged inaction, especially when counsel acknowledged docket monitoring and had known of email problems since December.
Plaintiffs’ arguments focused on why the initial sanctions order was incorrect (alleged lack of prejudice, local-rule conferral issues, availability of lesser sanctions), rather than why reconsideration was warranted given the delay and the posture of the case. That mismatch justified denial.

In short, the district court reasonably exercised its discretion to preserve the schedule and protect both the defendants and court administration from prejudice created by late-stage, unsupported reconsideration efforts.

2) Summary Judgment on Informed Consent: The Necessity of Expert Testimony

Massachusetts law requires a plaintiff alleging failure to obtain informed consent to prove that the physician failed to disclose a material risk—one that is more than “remote” or negligible—and that the nondisclosure caused the injury. The First Circuit agreed with the district court that expert testimony was necessary to establish the risk element for this case.

Specifically:

Whether a pelvic fracture is a non-negligible risk of forceps-assisted delivery is not a matter of common knowledge for lay jurors. It involves an assessment of medical data, frequencies, and comparative obstetrical risks (e.g., relative risks of forceps vs. alternative modes such as cesarean delivery).
Without expert testimony to quantify and contextualize this risk, a jury cannot reasonably conclude that the physician had a duty to disclose it. Massachusetts law does not require disclosure of negligible risks; thus, proof that the risk cleared that threshold is essential.
The plaintiffs’ reliance on “common knowledge” and medical records could not bridge this gap. The records might show the occurrence of a fracture, but not the pre-procedure probability or materiality of that risk in the risk-benefit calculus that governs informed consent.

Because this element failed as a matter of law without expert testimony, the First Circuit did not reach the separate question of whether expert testimony was also required to prove causation (that disclosure would have altered a reasonable patient’s decision).

Impact and Implications

On Massachusetts Informed-Consent Law

The decision fortifies a practical rule: plaintiffs generally need expert testimony to establish that a risk is “more than negligible” in informed-consent cases, except where the risk’s magnitude is within common lay understanding. Obstetrical risks associated with forceps deliveries are not within that lay domain.
The “common knowledge” exception is narrow. It does not extend to medical probability questions or the hierarchy of risks among treatment alternatives.
Plaintiffs cannot rely solely on medical records and testimony that an injury occurred to infer the materiality of a risk. Materiality concerns what should have been disclosed ex ante, not what happened ex post.

On Federal Civil Procedure and Litigation Practice

Expert exclusion can be a case-terminating sanction where expert testimony is essential to a prima facie case. Counsel must ensure timely depositions of retained experts and must respond to motions; failure to do so invites Rule 37(c)(1) exclusion.
Motions to reconsider are not second bites at the apple. Litigants must address the reconsideration standard: new evidence, change in controlling law, clear error, or manifest injustice. Delay without justification and failure to tackle the original sanctionable conduct weigh heavily against reconsideration.
Monitoring the docket and promptly curing known communication issues (e.g., email server problems) is counsel’s responsibility. Courts expect concrete, timely action rather than generalized explanations.
The merger doctrine allows review of interlocutory rulings when appealing the final judgment, but parties still must brief the correct standard (here, abuse of discretion for denial of reconsideration) rather than relitigating the underlying order.

Complex Concepts Simplified

Informed consent (Massachusetts): A physician must disclose material risks, benefits, and alternatives that a reasonable patient would consider important in deciding among treatments. Plaintiffs must prove (1) nondisclosure of a material risk, (2) causation (that a reasonable patient would have declined or chosen differently if informed), and (3) resultant injury.
Material vs. remote (negligible) risks: Doctors need not disclose every conceivable risk. Only risks that are more than negligible—those that a reasonable person would consider important—must be disclosed. Proving that a risk is more than negligible often requires expert testimony, especially in complex medical contexts.
“Common knowledge” exception: In some medical cases, jurors can assess negligence or risk without experts (e.g., leaving a surgical sponge). But when the issue involves medical probabilities or specialized procedures, expert testimony is required.
Rule 37(c)(1) exclusion: If a party fails to comply with Rule 26 disclosure or supplementation obligations, courts may exclude the evidence unless the failure was substantially justified or harmless. Exclusion of experts can be outcome-determinative where expert testimony is necessary to prove elements of a claim.
Motion to reconsider (Rule 54(b) and law of the case): Interlocutory orders may be revised before final judgment, but courts generally require a sound reason (new evidence, change in law, clear error). Mere disagreement with the prior ruling or late-stage attempts to relitigate without addressing the governing reconsideration criteria are disfavored.
Merger doctrine on appeal: When appealing a final judgment, prior non-final orders typically “merge” into that judgment, permitting appellate review—provided the appellant briefs the correct issues and standards.

Conclusion

Meka v. Haddad delivers two significant messages. Substantively, the First Circuit clarifies that Massachusetts informed-consent plaintiffs generally need expert testimony to prove that an undisclosed risk was more than negligible—particularly in specialized fields like obstetrics. The “common knowledge” doctrine does not permit jurors to infer the materiality of complex medical risks from the fact of injury alone.

Procedurally, the decision underscores the consequences of discovery noncompliance and the limits of reconsideration. When experts are excluded for failure to cooperate in basic discovery, courts will rarely unwind that sanction in the eleventh hour absent a persuasive explanation and prompt corrective action. Litigants must vigilantly monitor dockets, meet deposition obligations, and tailor appellate arguments to the applicable standards of review.

The net effect is a firm but predictable rule: in Massachusetts informed-consent litigation, proving risk materiality usually requires an expert. Absent such testimony, summary judgment is likely where the alleged undisclosed risk is not within the ken of lay jurors.