Laureano-Quinones v. Nadal-Carrion ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-1139
GRETCHEN LAUREANO-QUIÑONES,
Plaintiff, Appellant,
v.
DR. RICHARD NADAL-CARRIÓN,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Silvia Carreño-Coll, U.S. Magistrate Judge]
Before
Lynch, Lipez, and Barron,
Circuit Judges.
Hector M. Alvarado-Tizol, Sr. for appellant.
Jeannette Lopez de Victoria, with whom Oliveras & Ortiz, PCS,
was on brief, for appellee.
December 18, 2020
BARRON, Circuit Judge. This appeal concerns a pair of
claims that Gretchen Laureano Quiñones ("Laureano") brought in
2015 in the District of Puerto Rico against Dr. Richard Nadal
Carrión ("Nadal") following her abdominoplasty surgery. We affirm
the grant of summary judgment to Nadal. We also affirm the denial
of Laureano's motion for reconsideration.
I.
The undisputed facts are the following. Nadal conducted
an abdominoplasty surgery on Laureano on June 29, 2012, after
Laureano had signed a consent form that alerted her, among other
things, to the risk of scarring. The surgery left Laureano with
a scar that she alleges looks like a second belly button. Laureano
and Nadal agreed that he would perform a cosmetic scar revision
and repositioning procedure, but the procedure did not occur after
Laureano refused to sign a form that Nadal required her to sign in
advance.
Laureano filed suit against Nadal in a local court in
Puerto Rico, which was dismissed without prejudice. Laureano then
brought the action before us here in the United States District
Court for the District of Puerto Rico on October 16, 2015, based
on diversity of citizenship. See 28 U.S.C. § 1332. Both she and
Nadal consented to having it referred to a United States magistrate
judge for all further proceedings, including the entry of judgment.
See 28 U.S.C. § 636(c).
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The operative complaint sets forth a number of claims
against Nadal under Puerto Rico law and requests compensatory
damages in the amount of $900,000. This appeal concerns two of
the claims, which were for, respectively, negligently failing to
obtain Laureano's informed consent before the abdominoplasty and
negligently abandoning her thereafter.
The informed consent claim alleges that Nadal failed to
disclose and discuss the risks of the abdominoplasty -- including
the risks of suffering "the negative results she obtained after
the surgery." Laureano contends that if Nadal had "advised that
she could obtain bad results, ending with the appearance of two
belly bottoms [sic]," she would not have agreed to the surgery.
The patient abandonment claim alleges that Nadal did not
perform a corrective procedure after that initial surgery and
"never[] followed up with her." Laureano recharacterized this
claim below, however, contending that the abandonment consisted
not of Nadal's failure to follow up but of his conditioning the
corrective procedure on her signing a consent form that she
considered unacceptable.
Laureano moved for summary judgment on all her
claims -- including the two just described -- on September 19,
2016, and refiled a corrected summary judgment motion ten days
later. Each time, she attached a consultation report from Dr.
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David Leitner ("Leitner") to support her allegations against
Nadal.
Upon Nadal's request, the Magistrate Judge denied
Laureano's motion for summary judgment as premature and ordered
discovery. After Nadal deposed Leitner, Laureano renewed her
motion for summary judgment. At that point, Nadal moved for
summary judgment on all of Laureano's claims and filed a motion in
limine to exclude Leitner's testimony pursuant to Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and Federal Rule
of Evidence 702. The Magistrate Judge held a hearing on Nadal's
motion in limine and granted it on July 23, 2018, upon determining
that Leitner's testimony lacked a reliable foundation. Then, on
August 24, 2018, having previously denied Laureano's motion for
summary judgment, the Magistrate Judge granted Nadal's motion for
summary judgment on the ground that Laureano had failed to provide
expert testimony to support her claims against Nadal. The
Magistrate Judge reasoned that Puerto Rico law required such
testimony for her to establish both that Nadal breached his duty
to provide the minimum standard of care owed to her and that there
was a causal link between that breach and the harm for which she
sought recovery. The Magistrate Judge then denied Laureano's
motion for reconsideration. Laureano appeals both the grant of
summary judgment to Nadal on her informed consent and patient
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abandonment claims and the denial of her motion for reconsideration
of those rulings.
II.
We start with Laureano's challenge to the Magistrate
Judge's grant of summary judgment to Nadal on her informed consent
claim. We apply Puerto Rico law, see Rolon–Alvarado v.
Municipality of San Juan, 1 F.3d 74, 77 (1st Cir. 1993), and our
review is de novo, see Hill v. Walsh, 884 F.3d 16, 21 (1st Cir.
2018).
Under Puerto Rico law, "[i]n order to determine the
applicable standard of care in a medical malpractice action and to
make a judgment on causation, a trier of fact will generally need
the assistance of expert testimony." Pagés-Ramírez v. Ramírez-
González, 605 F.3d 109, 113 (1st Cir. 2010). Without taking issue
with this general requirement, Laureano, who does not challenge
the exclusion of Dr. Leitner's testimony on appeal, contends that
she did not need to support her informed consent claim with expert
testimony.
Laureano relies in part on Cruz Avilés v. Bella Vista
Hosp., Inc., 112 F. Supp. 2d 200 (D.P.R. 2000),1 which also
1 Laureano also contends on appeal that Nadal's failure to
give adequate warning violated a regulation issued by the Office
of the Patient's Advocate of Puerto Rico. See Office of the
Patient's Advocate of P.R., Regulations to Implement the
Provisions of Public Law 194 of August, 2000, Regulation No. 7617
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concerned an informed consent claim under Puerto Rico law. Id. at
201. The district court explained there that, under Puerto Rico
law, a medical malpractice allegation based on lack of informed
consent "'constitutes an independent and distinct cause of action
from a cause of action for medical malpractice in diagnosis or
treatment.'" Id. at 202 (quoting Santiago Otero v. Méndez, 135
D.P.R. 540 (1994), 1994 P.R.-Eng. 909, 224 (P.R. 1994)). But, in
so doing, Cruz Avilés did not purport to take issue with the
holding of the Supreme Court of Puerto Rico in Sepúlveda de
Arrieta v. Barreto, 137 D.P.R. 735 (1994), 1994 P.R.-Eng. 98, 876
(P.R. 1994), that a plaintiff must "bring expert testimony to
establish that[] a reasonable medical practitioner . . . would
have divulged the information." Id. at 743 (citing Fuller v.
Starnes, 268 Ark. 476 (1980)); see also id. at 752 (adopting the
"medical professional" standard requiring expert testimony). And
while Cruz Avilés relied on the Supreme Court of Puerto Rico's
decision in Santiago Otero, nothing in that precedent is at odds
with Sepúlveda de Arrieta regarding the issue at hand.
(Nov. 21, 2008). But, Laureano added this contention for the first
time in her motion for reconsideration, and she makes no argument
as to how, given that it was not made below in opposing Nadal's
motion for summary judgment, it nonetheless suffices to show that
the Magistrate Judge's grant of that motion must be overturned.
See Crispin-Taveras v. Municipality of Carolina, 647 F.3d 1, 8
(1st Cir. 2011) ("Because appellants forfeited their argument by
failing to raise it in a timely manner, we review only for plain
error." (citing Rivera-Torres v. Ortiz Velez, 341 F.3d 86, 102
(1st Cir. 2003))).
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Laureano also relies on the D.C. Circuit's decision in
Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972). But, that
case concerned the law of the District of Columbia, not Puerto
Rico. Id. at 785. Moreover, in construing Puerto Rico law, the
Supreme Court of Puerto Rico has expressly rejected Canterbury's
approach and evaluated medical malpractice allegations based on
lack of informed consent from the perspective of the physician
rather than the patient. See Sepúlveda de Arrieta, 137 D.P.R. at
752-53, 759-60. Under Puerto Rico law, that is, courts determine
the scope of a physician's duty of disclosure by looking to the
"prevailing medical practice," id. at 753, and assess "causation
between the negligent . . . omission and the harm" by asking "what
the physician [could] foresee as a normal consequence of his
omission," id. at 759.
Thus, because Laureano identifies no supportive
precedent and develops no argument as to why, despite the absence
of any such authority, her particular claim could survive summary
judgment without expert testimony to support it, her challenge to
the grant of summary judgment to Nadal on this claim fails. See
Rodríguez-Díaz v. Seguros Triple-S, Inc., 636 F.3d 20, 24 (1st
Cir. 2011). And because her motion for reconsideration is
"directed to the underlying substantive issue (the propriety vel
non of summary judgment) rather than the procedural issue (the
desirability vel non of reconsideration)," Best Auto Repair Shop,
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Inc. v. Universal Ins. Grp., 875 F.3d 733, 737 (1st Cir. 2017)
(quoting Santiago v. Puerto Rico, 655 F.3d 61, 67-68 (1st Cir.
2011)), her challenge to the denial of that motion fails as well,
id.2
III.
Laureano's challenge to the Magistrate Judge's grant of
summary judgment to Nadal on her patient abandonment claim also
lacks merit. Here, too, Laureano contends that the Magistrate
Judge erred in granting summary judgment against her based on her
failure to provide supportive expert testimony, as she claims that
there is no such requirement under Puerto Rico law for a claim of
this type. And here, too, our review is de novo. See Hill, 884
F.3d at 21.
Laureano identifies no case law that supports her
contention that, although Puerto Rico law generally requires that
a plaintiff bringing a medical malpractice claim "needs the
assistance of expert testimony" to demonstrate "the applicable
2
Although Laureano did raise her contention about Regulation
No. 7617 in her motion for reconsideration, she does not argue
that the Magistrate Judge committed an abuse of discretion in
denying her motion without addressing that contention. Nor do we
see how any such argument could succeed, given that Laureano could
have raised her Regulation No. 7617 contention earlier but did
not. See Feliciano-Hernández v. Pereira-Castillo, 663 F.3d 527,
537 (1st Cir. 2011) (finding no abuse of discretion in the district
court's denial of a motion for reconsideration where the movant
had asked the court "to consider new arguments that [she] could
have made earlier").
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standard of care . . . and to make a judgment on causation," Pagés-
Ramírez, 605 F.3d at 113, a plaintiff who is bringing a medical
malpractice claim for patient abandonment needs no such
assistance. Nor does she develop any argument that the Supreme
Court of Puerto Rico would hold that a plaintiff bringing such a
claim is relieved of that requirement.3 Accordingly, her challenge
to the grant of summary judgment to Nadal on this claim fails, as
does her challenge to the denial of her motion for reconsideration.
See Best Auto Repair Shop, Inc., 875 F.3d at 737.4
IV.
The judgment below is affirmed.
3 Just as Laureano does in connection with her challenge to
the Magistrate Judge's grant of summary judgment to Nadal on her
claim for lack of informed consent, she argues to us that, based
on Regulation No. 7617, the Magistrate Judge erred in granting
summary judgment to Nadal on her patient abandonment claim. But,
Laureano offers no explanation for how this argument could suffice
to require us to overturn the Magistrate Judge's ruling on that
score given that she made it for the first time in her motion for
reconsideration. See Crispin-Taveras, 647 F.3d at 8 (applying
plain error review to arguments in civil cases not properly
preserved).
4 Laureano included her Regulation No. 7617 argument in her
motion for reconsideration in connection with her challenge to the
Magistrate Judge's grant of summary judgment to Nadal on her
patient abandonment claim. But, she provides no basis for
concluding that the Magistrate Judge committed an abuse of
discretion in denying her motion as to the Regulation No. 7617
argument, given that she "could have made [it] earlier."
Feliciano-Hernández, 663 F.3d at 537.
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