Quilez-Velar v. Ox Bodies, Inc.

United States Court of Appeals
For the First Circuit
Nos. 15-1466
15-1533
BERARDO A. QUILEZ-VELAR; MARTA BONELLI-CABAN;
BERARDO A. QUILEZ-BONELLI; CARLOS A. QUILEZ-BONELLI,
Plaintiffs, Appellants/Cross-Appellees,
v.
OX BODIES, INC.,
Defendant, Appellee/Cross-Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Silvia L. Carreño-Coll, U.S. Magistrate Judge]
Before
Lynch, Selya, and Lipez,
Circuit Judges.
José Luis Ubarri, with whom David W. Román and Ubarri & Roman
Law Office were on brief, for appellants.
John M. Roche, with whom Kevin S. Taylor, Arron Nesbitt,
Taylor Anderson, LLP, Francisco J. Colon-Pagan, Francisco E.
Colon-Ramirez, and Colón & Colón, P.S.C. were on brief, for
appellee.
May 9, 2016
LYNCH, Circuit Judge. This diversity case arose from
the death of Maribel Quilez-Bonelli following an automobile
accident involving Maribel's Jeep Liberty and a truck in use by
Municipality of San Juan employees that had fitted onto its trash
body an underride guard designed by Ox Bodies, Inc. ("Ox Bodies").
Maribel's family members brought suit in federal court against Ox
Bodies, seeking damages for, inter alia, defective design of the
underride guard. A jury found Ox Bodies strictly liable for
defective design and awarded the plaintiffs damages totaling
$6,000,000. By special verdict form, the jury assigned 20% of
responsibility for the damages to Ox Bodies, 80% to the
Municipality of San Juan, which was not a party in the suit, and
0% to Maribel. The presiding magistrate judge ruled that judgment
should enter on the strict liability claim in favor of the
plaintiffs and that under Puerto Rico law, Ox Bodies should be
held responsible only for 20% of the damages award, which equaled
$1,200,000. This appeal and cross-appeal followed.
Ox Bodies appeals the verdict, contending that the court
should not have allowed the plaintiffs' expert to testify on an
alternative underride guard design, and that absent such
testimony, no reasonable jury could have found for the plaintiffs.
The plaintiffs appeal the order limiting their recovery, arguing
that under Puerto Rico law Ox Bodies should be held "jointly and
severally liable to the plaintiff[s] for the totality of the
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damages" -- the entire $6,000,000 award -- such that "the risk of
loss of having to pay the entire judgment without obtaining
contribution is borne by the defendant joint tortfeasor, not by
the plaintiffs."
We affirm the court's decision to admit the plaintiffs'
expert's testimony and so reject Ox Bodies' appeal. On the
plaintiffs' appeal, in the absence of clear Puerto Rico law, we
certify to the Puerto Rico Supreme Court the question of the extent
of Ox Bodies' liability for the damages award.
I.
On October 1, 2010, Maribel Quilez-Bonelli, a then 28-
year-old married woman and mother, was driving on a highway
overpass near the city of San Juan in a 2004 Jeep Liberty with her
toddler son when her Jeep collided with a stopped or slowly moving
truck in use by Municipality of San Juan employees. The truck
bore an underride guard near its rear that had been designed by Ox
Bodies. The front of Maribel's Jeep hit the truck from behind and
underrode the truck's trash body such that the truck penetrated
the Jeep's passenger compartment and struck Maribel, lacerating
her head and face. Maribel died from resulting injuries on October
6, 2010.
Maribel's family members, Berardo A. Quilez-Velar, Marta
Bonelli-Caban, Berardo A. Quilez-Bonelli, and Carlos A. Quilez-
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Bonelli1 (collectively "Quilez"), brought suit in a Puerto Rico
court and in federal court.2 In a Puerto Rico trial court, Quilez
filed an amended complaint on November 1, 2011, alleging negligence
and seeking damages from, inter alia, the Commonwealth of Puerto
Rico, the Puerto Rico Highway and Transportation Authority,
Integrand Assurance Company ("Integrand"), and the Municipality of
San Juan. The Municipality of San Juan and Integrand brought a
third-party complaint for indemnification or contribution against,
inter alia, Ox Bodies and its parent company, Truck Bodies &
Equipment International, Inc. On May 16, 2014, the Municipality
of San Juan, through its insurer, deposited with the Puerto Rico
court its maximum policy limit, $500,000, for potential
distribution if found liable. The Puerto Rico court ordered that
the funds be distributed to the plaintiffs and dismissed the
Municipality of San Juan from suit. Quilez expressly represented
to this court that "[n]o settlement agreement was ever executed
and [Quilez] granted no release [to] or assumed any liability"
from the Municipality of San Juan or its insurer. Ox Bodies
1 For simplicity, we refer to Maribel Quilez-Bonelli as
"Maribel" and the plaintiffs as "Quilez" going forward.
2 Maribel's surviving husband, Francisco Felix-Navas, and
her surviving son, Francisco Andres Felix-Quilez, together also
filed suit in a Puerto Rico court seeking damages resulting from
Maribel's accident. The two Puerto Rico suits were consolidated.
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conceded this point at oral argument, no document in the record
establishes otherwise, and so we accept Quilez's representation.
On March 20, 2013, Quilez filed an amended complaint in
its diversity action in federal district court against Ox Bodies,
its parent company, and other defendants, for defective design and
negligence under Puerto Rico law. Ox Bodies and its parent company
brought a third-party claim for contribution and/or
indemnification against, inter alia, the Municipality of San Juan.
On May 16, 2014, the Municipality of San Juan notified the federal
court that it had deposited $500,000 that day with the Puerto Rico
court. On September 4, 2014, the federal court dismissed the
Municipality of San Juan from the suit, without objection from Ox
Bodies. Quilez-Velar v. Ox Bodies, Inc., No. CIV. 12-1780, 2014
WL 4385418, at *2, *3 (D.P.R. Sept. 4, 2014), reconsideration
denied, No. CIV. 12-1780, 2014 WL 4656649 (D.P.R. Sept. 17, 2014).
At the time of this appeal, the only remaining defendant is Ox
Bodies.
On January 26, 2015, Ox Bodies filed a pre-trial motion
in limine to exclude the testimony of Quilez's expert, Perry
Ponder, arguing that "Mr. Ponder's report is devoid of any
scientific analysis or calculations that would support" his
conclusion that his proposed alternative underride guard design
"would have been [a] safer design in the instant accident," and
that his opinions should be excluded under Daubert v. Merrell Dow
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Pharmaceuticals, Inc., 509 U.S. 579 (1993).3 Ox Bodies supported
its motion with excerpts from Ponder's deposition and expert
report, but it did not request that Ponder testify at a Daubert
hearing.4 Quilez opposed the motion.
After reviewing both parties' submissions and relevant
discovery materials, the magistrate judge, presiding pursuant to
28 U.S.C. § 636, denied the motion to exclude Ponder's testimony.
Quilez-Velar v. Ox Bodies, Inc., No. CIV. 12-1780, 2015 WL 418151,
at *7 (D.P.R. Feb. 1, 2015). The magistrate judge acknowledged Ox
Bodies' argument that Ponder "did not perform specific tests or
calculations in the course of his analysis," but found, first,
that Ox Bodies failed to "show that these specific tests must have
been carried out to provide a foundation for Ponder's opinions,"
3 Ox Bodies described a range of foregone calculations,
including, inter alia, that Ponder "did not calculate the peak
force of the collision, the coefficient of restitution, or the
average or maximum forces of the impact"; "he did not conduct any
analysis to determine the energy absorption that the proposed
design change could sustain"; the reports he "relied upon evaluated
impacts and forces that were different from those involved in this
case"; "he did not perform any finite element analysis"; and he
did not calculate the "loads created in a collision between a truck
and a passenger vehicle."
4 A trial court may order a Daubert hearing to screen the
proffer of scientific testimony to determine whether it crosses
the Daubert threshold. See, e.g., Samaan v. St. Joseph Hosp., 670
F.3d 21, 31 (1st Cir. 2012). "[T]he scope of a Daubert hearing is
not limited to an appraisal of an expert's credentials and
techniques but also entails an examination of his conclusions to
determine whether they flow rationally from the methodology
employed." Id. at 32.
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and second, that upon "review[ing] Ponder's report, . . . its
conclusions are well-explained, and its use of crash-test data
appears appropriate." Id.
At trial, when Quilez moved to qualify Ponder as an
expert, Ox Bodies requested voir dire, which was initially
conducted in front of the jury and during which Ponder acknowledged
that he did not crash-test his proposed alternative design and
that none of his "rear underride guard designs" had ever been
adopted by tilt or dump bed manufacturers. Ox Bodies conceded
that Ponder was qualified as an accident reconstructionist but
renewed its objection to Ponder's testifying about an alternative
design for an underride guard. The court permitted further
questioning by both parties outside the presence of the jury,
spanning more than nine pages of transcript, before ultimately
ruling that Ponder was qualified to testify about an alternative
underride guard design.
Following a 12-day trial, the jury returned a verdict
finding Ox Bodies strictly liable to Quilez for defective design.
In the magistrate judge's March 3, 2015, memorandum and order,
damages were apportioned as described earlier. Quilez-Velar v. Ox
Bodies, Inc., No. CIV. 12-1780, 2015 WL 898255, at *1–3 (D.P.R.
Mar. 3, 2015).
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II.
Ox Bodies appeals the admission of Ponder's testimony
regarding a feasible safer alternative design, arguing that
without Ponder's testimony no reasonable jury could have found it
liable. "Under Puerto Rican tort law governing design defect
claims, if the plaintiff proves that 'the product's design is the
proximate cause of the damage,' the burden shifts to the defendant
to prove that 'the benefits of the design at issue outweigh the
risk of danger inherent in such a design.'" Quintana-Ruiz v.
Hyundai Motor Corp., 303 F.3d 62, 69 (1st Cir. 2002) (quoting
Aponte Rivera v. Sears Roebuck de P.R., Inc., 144 P.R. Dec. 830,
840 n.9 (1998), 1998 P.R.-Eng. 324486 n.9, 1998 WL 198857 n.9).
Here, the court instructed the jury that if it found that the
plaintiffs met their burden, then "[i]n deciding whether the
benefits outweigh the risks," it should consider a number of
factors, including "[t]he feasibility of an alternative safer
design at the time of manufacture." Neither party contests this
instruction.5
Ponder's expert report pointed to two key deficiencies
in Ox Bodies' guard design: first, "[a]pproximately the outside 16
5 As we said in Quintana-Ruiz, "[t]here are at least three
views of how the existence, or non-existence, of a mechanically
feasible alternative design fits into the risk-utility balancing
test," 303 F.3d at 71, and "[i]t is not clear what view the Puerto
Rico courts would follow," id. at 72; see id. at 71–72 (describing
the three views).
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inches on each side of the rear of the [Ox Bodies] truck is left
without any underride guarding at all," and second, "the guard is
not sufficiently braced against impacts" because "[t]he outside
span of the horizontal member is a beam supported at an interior
location, but unsupported at the end," such that part of the guard
"would begin to fail at a load of approximately 7,000 lbs." He
further opined that "[t]he frontal collision safety features in
[Maribel's] Jeep Liberty were rendered ineffective because the
. . . truck lacked a substantially constructed underride guard."
Ponder's report went on to conclude that "[t]here exist
feasible safer alternative rear impact guard designs for" the truck
involved here. He noted a number of published studies that "offer
completed truck underride guard designs." He outlined a design
suited for the instant truck, "consist[ing] of a horizontal member
positioned at the or very close to the rear extremity of the
vehicle, long enough to protect the entire width of the truck,"
and "[d]iagonal bracing . . . placed at the truck bed's interior
longitudinal members and side longitudinal members at a 45 degree
angle along with a vertical support to complete the truss at the
side extremities."
Our review of the magistrate judge's decision to admit
Ponder's testimony on alternative design is for abuse of
discretion. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152
(1999). "Absent a material error of law, we will not second-guess
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such a discretionary determination unless it appears that the trial
court 'committed a meaningful error in judgment.'" United States
v. Jordan, 813 F.3d 442, 445 (1st Cir. 2016) (quoting Ruiz-Troche
v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 83 (1st Cir.
1998)). We find that under Federal Rule of Evidence 702, the
magistrate judge's decision to admit Ponder's testimony was within
her discretion.
Under Federal Rule of Evidence 702:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or
education may testify in the form of an
opinion or otherwise if:
(a) the expert's scientific, technical, or
other specialized knowledge will help the
trier of fact to understand the evidence or to
determine a fact in issue;
(b) the testimony is based on sufficient facts
or data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the
principles and methods to the facts of the
case.
Fed. R. Evid. 702. The magistrate judge here must "serve[] as the
gatekeeper for expert testimony by 'ensuring that [it] . . . both
rests on a reliable foundation and is relevant to the task at
hand.'"6 Milward v. Rust-Oleum Corp., No. 13-2132, 2016 WL
6 Although Ox Bodies' opening brief contends that whether
a trial court has acted as a gatekeeper is subject to de novo
review, see Smith v. Jenkins, 732 F.3d 51, 64 (1st Cir. 2013), Ox
Bodies has not argued that the magistrate judge failed to perform
that role. And so any argument on that issue is waived. See
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1622620, at *3 (1st Cir. Apr. 25, 2016) (second and third
alteration in original) (quoting Daubert, 509 U.S. at 597).
There is no dispute that testimony regarding alternative
design was necessary to determine a fact at issue. The magistrate
judge acted within her discretion in determining that Ponder's
"scientific, technical, or other specialized knowledge" would help
the jury determine that issue. Fed. R. Evid. 702(a). Ponder, a
licensed professional engineer with a degree in mechanical
engineering, has designed and tested at least four underride
guards, reviewed crash tests and underride crashes, and lectured
or published on the subjects of underride guard history,
regulations, and side underride guard protections. He is also
certified by the Accreditation Commission for Traffic Accident
Reconstruction as an accident reconstructionist and has performed
more than 400 accident reconstructions, including about twenty in
underride cases. On appeal, Ox Bodies has not raised a developed
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Even if
properly raised, such an argument would be difficult in these
circumstances, as Ox Bodies neither requested a Daubert hearing
nor mentioned Daubert in its objection to Ponder's qualifications
during the voir dire at trial, and the magistrate judge entertained
Ox Bodies' arguments in ruling on its motion in limine and
permitted additional questioning at trial before ruling on
Ponder's qualifications. See Jenkins, 732 F.3d at 64 ("If we are
satisfied that the court did not altogether abdicate its role under
Daubert, we review for abuse of discretion its decision to admit
or exclude expert testimony.").
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objection to the relevance of these experiences to the issue at
hand.
Rather, the central question before us concerns whether
the magistrate judge abused her discretion in concluding that
Ponder's testimony on alternative design was sufficiently reliable
to survive the admissibility threshold.7 Ox Bodies asserts that
Ponder's testimony should have been excluded under Daubert because
the expert must have actually tested the alternative design, either
physically or using computer modeling, and Ponder did not do so.
Ox Bodies' argument rests on a profound misunderstanding of
Daubert, which eschews such per se approaches. See Kumho Tire
Co., 526 U.S. at 150 (holding that the inquiry "depends upon the
particular circumstances of the particular case at issue");
Milward v. Acuity Specialty Prods. Grp., Inc., 639 F.3d 11, 16–20
(1st Cir. 2011) (conducting a fact-specific "reliability"
inquiry). "Testing is certainly one of the most common and useful
reliability guideposts for a district court when contemplating
proposed Rule 702 evidence." Lapsley v. Xtek, Inc., 689 F.3d 802,
815 (7th Cir. 2012). However, this circuit has never adopted a
7 Under Daubert, courts may consider a number of factors
in assessing reliability: whether a theory or technique can be and
has been tested; whether it has been put through peer review and
has been published; whether it has a high error rate; and whether
it has been generally accepted within the relevant scientific or
technical community. See Kumho Tire Co., 526 U.S. at 149–150;
Ruiz-Troche, 161 F.3d at 80–81.
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rule that an expert himself must have tested an alternative design,
much less by building one. We decline to adopt either requirement
as a bright-line rule or as applied to this case. See Kumho Tire
Co., 526 U.S. at 150 ("[T]he factors [Daubert] mentions do not
constitute a 'definitive checklist or test.'" (quoting Daubert,
509 U.S. at 593)); Johnson v. Manitowoc Boom Trucks, Inc., 484
F.3d 426, 431–33 (6th Cir. 2007) (declining to hold that testing
is a requirement or the sole, dispositive factor under Daubert);
Wagner v. Hesston Corp., 450 F.3d 756, 760 n.8 (8th Cir. 2006)
(noting that lack of testing is a "non-dispositive factor");
Watkins v. Telsmith, Inc., 121 F.3d 984, 990 (5th Cir. 1997)
("Testing is not an 'absolute prerequisite' to the admission of
expert testimony on alternative designs, but Rule 702 demands that
experts 'adhere to the same standards of intellectual rigor that
are demanded in their professional work.'" (quoting Cummins v.
Lyle Indus., 93 F.3d 362, 369 (7th Cir. 1996))); Cummins, 93 F.3d
at 369 ("We do not mean to suggest, of course, that hands-on
testing is an absolute prerequisite to the admission of expert
testimony.").8
8 Neither of the reported appellate cases Ox Bodies cites
hold that testing is a dispositive requirement under Daubert
either. See Zaremba v. Gen. Motors Corp., 360 F.3d 355 (2d Cir.
2004); Oddi v. Ford Motor Co., 234 F.3d 136 (3d Cir. 2000).
Moreover, unlike here, those cases involved review of exclusion of
expert testimony. See Zaremba, 360 F.3d at 357–58; Oddi, 234 F.3d
at 156, 158. Ox Bodies also cites an unpublished opinion of a
divided Tenth Circuit panel that is irrelevant. See Hoffman v.
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In any event, the record permitted a factfinder to
conclude that Ponder did do some testing, and here, the record
supports the magistrate judge's determination that there were
alternate methods of testing from which the jury could evaluate
reliability. See Johnson, 484 F.3d at 431. First, Ponder
testified that he looked at "crash test information" from several
sources, including a 1980 study available from the National
Technical Information System, "a number of patents," "crash test
data from 1971 from Aeronautical Research Associates," and other
crash tests done under contract with the National Highway Traffic
Safety Administration ("NHTSA"). Ox Bodies argues that Ponder's
conclusion regarding the guard in the instant case does not "fit"
with or follow from the studies. In its motion in limine, Ox
Bodies argued that those studies "evaluated impacts and forces
that were different from those involved in this case." But Ponder
testified in voir dire that at least some of the "information is
transferrable . . . [to] underride guards for any type of vehicle."
He explained in response to a question about crash-test data asked
during his deposition, for example, that "a 90-degree frontal test
is what NHTSA uses as confirmation for crash worthiness and
Ford Motor Co., 493 F. App'x 962, 975–76 (10th Cir. 2012) (finding
expert testimony unreliable where expert did not compare his
laboratory test results to either the accelerations on the buckle
in the instant accident or to published rollover crash tests, and
inconsistently claimed there was a lack of rollover crash data).
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passenger safety in crash types -- all crash types." Upon review
of the arguments and documents in the record properly submitted to
us,9 we cannot say that it was an abuse of discretion for the
magistrate judge to conclude, as she did at trial, that "[Ponder]
had enough data that did not require him to conduct further testing
for research to base his opinions on."
Second, Ponder testified that he tested his design using
"stress calculation[s]." Cf. Lapsley, 689 F.3d at 815 ("A
mathematical or computer model is a perfectly acceptable form of
test."). His reliance in part on a Society of Automotive Engineers
("SAE") article, in order to determine the energy involved as well
as "compar[e] the damage to [the SAE article's] damage matrix
index," was appropriate.10 Ponder also testified that he performed
"photogrammetry analysis" using calculations performed by hand to
test how his design would react upon impact.
9 We limit our review to those documents in the record.
We will not consider supposed excerpts from Ponder's notes that
both Ox Bodies and Quilez attempt to submit to this court, as
neither party indicates their location in the record before the
magistrate judge, and we have not been able to pinpoint any of
these references.
10 On appeal, Ox Bodies argues that because Ponder failed
to identify any industry manufacturer or government agency that
has adopted his design or a "similar" one, his design lacks "peer
review." Ox Bodies did not raise this exact argument in its motion
in limine or at trial, and so it is waived. See Sierra Club v.
Wagner, 555 F.3d 21, 26 (1st Cir. 2009).
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Ox Bodies contends that Ponder failed to perform
calculations its expert said were necessary in testing his design.
However, as the magistrate judge correctly stated in ruling on Ox
Bodies' motion in limine, "Defendants do not show that these
specific tests must have been carried out to provide a foundation
for Ponder's opinions." Moreover, Ponder's report and his
responses when questioned during his deposition demonstrate
support for his findings. We emphasize that in most cases,
"[v]igorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof are the traditional
and appropriate means of attacking shaky but admissible evidence."
Daubert, 509 U.S. at 596. And here, Ox Bodies "had ample
opportunity to cross examine" Ponder "and to use its own expert
witness -- which it did." Diefenbach v. Sheridan Transp., 229
F.3d 27, 31 (1st Cir. 2000).
Finally, on appeal Ox Bodies argues that Ponder did not
show that his alternative design would have "withstood the force
of the crash" and would have prevented intrusion into the passenger
compartment, or that the alternative design guard would have caused
"the Jeep to rotate away from the truck on impact, rather than
continuing further into the trash body." Ox Bodies did not raise
these objections in its motion in limine or in its objections at
trial. Arguably, the contention is waived. Sierra Club v. Wagner,
555 F.3d 21, 26 (1st Cir. 2009). But even assuming that the more
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general argument -- that Ponder has not shown that his alternative
design would have prevented Maribel's injuries -- was properly
raised, that argument goes to the credibility of his testimony
that the design was "safer." As these arguments were appropriate
to make to the jury when it weighed the evidence, they do not lead
us to conclude that the testimony's admission was in error.
In short, admitting Ponder's testimony on alternative
design was not a "meaningful error in judgment," Ruiz-Troche, 161
F.3d at 83 (quoting Anderson v. Cryovac, Inc., 862 F.2d 910, 923
(1st Cir. 1988)), and we affirm the magistrate judge's decision to
admit his testimony.
III.
The sole issue in Quilez's appeal is whether the
magistrate judge erred by not holding Ox Bodies jointly and
severally liable11 for the entire $6,000,000 damages award. That
decision was based on a particular reading of the Puerto Rico
Supreme Court's decisions in Cortijo Walker v. P.R. Water Res.
Auth., 91 P.R. 557 (1964); Widow of Andino v. P.R. Water Res.
Auth., 93 P.R. 168 (1966); and Rosario Crespo v. P.R. Water Res.
Auth., 94 P.R. 799 (1967). See Quilez-Velar, 2015 WL 898255, at
*2-3. On our reading, those precedents do not clearly answer the
11Joint and several liability sometimes goes by the name
"solidary" liability in Puerto Rico. Ramos v. Caparra Dairy, Inc.,
16 P.R. Offic. Trans. 78, 81 (1985).
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question at hand, and the question raises important public policy
concerns. Because the issue is determinative of Quilez's appeal,
we find "the prudent course is to certify the question to that
court better suited to address the issue."12 Pagán-Colón v.
Walgreens of San Patricio, Inc., 697 F.3d 1, 18 (1st Cir. 2012).
We explain, without in any sense meaning to influence the outcome.
The underlying assumption of the magistrate judge's
reasoning is that Ox Bodies had no right of contribution against
the Municipality of San Juan and that it necessarily followed that
Quilez could not recover the sum of $6,000,000 against Ox Bodies
on a joint and several liability theory. There are many questions,
as discussed below, about whether contribution is or is not
available, and whether the reasoning tying the existence of
contribution to the existence of joint and several liability is
valid under Puerto Rico law. Quilez posits that even if Ox Bodies
does not have a right of contribution, Ox Bodies is nonetheless
responsible to Quilez as a jointly and severally liable defendant.
That is, the municipal cap does not excuse Ox Bodies from paying
the sum of $6,000,000; and so, it cannot have the effect of
shifting the risk of non-payment of the full sum to Quilez.
12 At oral argument, the parties agreed that this court
could certify the issue, and we subsequently afforded them an
opportunity to propose language for the certification question.
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The magistrate judge's March 3, 2015, order read the
Puerto Rico Supreme Court's decision in Cortijo Walker, which
disallowed a third-party suit by a defendant against a plaintiff's
employer covered by Puerto Rico's workmen's compensation statute,
91 P.R. at 559, 566, to preclude Ox Bodies from seeking
contribution from the Municipality of San Juan. Quilez-Velar,
2015 WL 898255, at *2. Then, the magistrate judge held that, under
Widow of Andino and Rosario Crespo, where "a defendant's general
right to contribution is lost due to a joint-tortfeasor's statutory
immunity," 2015 WL 898255, at *2, in a tort action a "defendant
should be held liable for the damage only in proportion to its
fault," id. at *3 (quoting Widow of Andino, 93 P.R. at 180); see
Rosario-Crespo, 94 P.R. at 813.13 Ox Bodies urges us to affirm
based on this reasoning.
13 In a previous order, the magistrate judge also held that
Puerto Rico would likely follow Restatement (Third) of Torts:
Products Liability § 16 (Am. Law Inst. 1998), such that when an
injury is indivisible, if a plaintiff shows that a defectively
designed product "is a substantial factor in increasing the
plaintiff's harm beyond that which would have resulted from other
causes, the product seller is subject to liability for . . .
plaintiff's harm attributable to the defect and other causes" and
is "liable with other parties who bear legal responsibility for
causing the harm, determined by applicable rules of joint and
several liability." Restatement (Third) of Torts: Prod. Liab. §
16 (Am. Law Inst. 1998); see Quilez-Velar v. Ox Bodies, Inc., No.
CIV. 12-1780, 2015 WL 418156, at *1, *2 (D.P.R. Feb. 2, 2015).
Neither party has challenged this predicate conclusion of law. We
invite the Puerto Rico Supreme Court to weigh in on this point, if
it chooses to do so, in the course of answering our certified
question.
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Quilez disputes both steps in the court's reasoning.
Quilez argues that the cap on municipal damages at issue here is
not analogous to the workmen's compensation statute's remedial
restriction in Cortijo Walker. This view, according to Quilez,
finds some support in the statutory text. The statutory scheme in
Cortijo Walker was a workmen's compensation scheme barring all
tort actions against covered employers. See Cortijo Walker, 91
P.R. at 560 (quoting the Workmen's Accident Compensation Act of
1935, § 20, which established that compensation under the Act
"shall be the only remedy against the employer"). In contrast,
the municipal damages cap codified at P.R. Laws Ann. tit. 21,
§ 4704 permits liability in "[c]laims against municipalities for
personal or property damages caused by the fault or negligence of
the municipality" up to a certain amount, in this case up to the
"the collectible indemnity actually provided" by the Municipality
of San Juan's insurance policy, P.R. Laws Ann. tit. 26, § 2004.
See Quilez-Velar, 2015 WL 898255, at *2 n.2. Other jurisdictions
have recognized this type of municipal damages cap as a partial
waiver of sovereign immunity. See, e.g., Morris v. Mass. Mar.
Acad., 565 N.E.2d 422, 428 (Mass. 1991) ("The [governmental
liability] limitation is contained in the same sentence in which
sovereign immunity is waived. . . . The cap is one term of the
waiver."). In this case, there is an argument that because the
municipal damages cap operates differently than the remedial
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restriction in the workmen's compensation statute by permitting
suits up to a certain amount of damages, Ox Bodies is able to seek
at least partial contribution from the Municipality of San Juan.
It is notable that the Municipality of San Juan has acted
consistent with this view, including by depositing its insurance
policy limit with the Puerto Rico court. Even while ruling that
Ox Bodies lacked a right of contribution against the Municipality
of San Juan, the magistrate judge noted that "[t]heoretically, Ox
Bodies could seek contribution from the municipality up to the
limits of its insurance policy." Quilez-Velar, 2015 WL 898255, at
*2 n.4.14
Ox Bodies counters that the municipal cap and the
workmen's compensation remedial restriction provision are
materially indistinguishable. It points to the magistrate judge's
reading of Cortijo Walker as holding that where a statute precludes
a party's liability, a third-party claim against that party is
prohibited because it "would amount to doing indirectly what the
lawmaker has forbidden to be done directly." Cortijo Walker, 91
P.R. at 564. In Ox Bodies' view, the magistrate judge correctly
interpreted the municipal damages cap here as a legislative policy
14 At oral argument, Ox Bodies conceded this point, but
then argued that nonetheless, "there is no right of contribution
for the portion of the damages allocated to the Municipality for
which the plaintiffs are asking the court to hold Ox Bodies
liable."
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choice to "protect[] . . . the municipal fisc" and any right to
contribution as a forbidden attempt to indirectly get at that fisc.
See Quilez-Velar, 2015 WL 898255, at *2.
Quilez suggests that Ox Bodies has misunderstood Cortijo
Walker's reasoning, suggesting that the quoted language is dicta,
and the court's holding actually resides in the preceding
paragraph. There, the Cortijo Walker court reasoned that the right
to contribution was lacking because under the particular statutory
scheme -- the workmen's compensation statute -- "[t]he employer is
not liable to the workman in tort," and so "he cannot be a joint
tortfeasor with the third person and third-party plaintiff." 91
P.R. at 564. The court explained that the defendant lacked a right
of contribution against the plaintiff's employer because "[t]he
workman's claim or remedy against his employer is solely for the
statutory benefits; his claim against the third party is for
damages. Both causes of action are in law different in kind and
they cannot result in a common legal liability." Id. Quilez
argues that Cortijo Walker's reasoning is inapposite, as the action
here against Ox Bodies and the third-party action against the
Municipality of San Juan both seek damages based in tort; the
magistrate judge has determined the Municipality of San Juan to be
a joint-tortfeasor, see Quilez-Velar v. Ox Bodies, Inc., No. CIV.
12-1780, 2015 WL 418156, at *2 (D.P.R. Feb. 2, 2015); Quilez-
Velar, 2015 WL 898255, at *2, and Ox Bodies has not contested that
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ruling. Quilez suggests that practical inability to obtain
contribution -- here because of a deposit with the Puerto Rico
court that only by happenstance preceded judgment in the federal
suit -- poses a legal question concerning proper allocation of
risk of non-payment from a liable defendant, not concerning whether
Ox Bodies is unable to seek contribution because of some kind of
immunity.
Quilez also views the magistrate judge's subsequent
reliance on Widow of Andino and Rosario Crespo for the rule that
a "defendant should be held liable for the damage only in
proportion to its fault," Widow of Andino, 93 P.R. at 180; see
Rosario-Crespo, 94 P.R. at 813, as misplaced.15 See Quilez-Velar,
2015 WL 898255, at *2. Quilez asserts that Puerto Rico case law
almost always prioritizes a plaintiff's recovery through joint and
several liability. Joint and several liability is "[t]he well-
15 The magistrate judge stated that "[i]t should be noted
that the Supreme Court's holdings in Widow of Andino and Rosario-
Crespo were not based on any language in the workers' compensation
statute." Quilez-Velar, 2015 WL 898255, at *2. Both Widow of
Andino and Rosario Crespo explicitly rely on Cortijo Walker's
reading of the workmen's compensation statute as not permitting an
employer to be held liable in explaining why a defendant should be
held liable only for its proportion of fault. See Rosario-Crespo,
94 P.R. at 812–13; Widow of Andino, 93 P.R. at 179–80 (discussing
the operation of workmen's compensation employer remedial
restriction to "absolute[ly]" preclude recovery from the employer,
before holding that "[i]n view of the foregoing, and of the fact
that this case is governed by the special Act on the matter,
defendant should be held liable for the damage only in proportion
to its fault").
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known rule." Szendrey v. Hospicare, Inc., 2003 TSPR 18, 2003 WL
751582 (P.R. Feb. 14, 2003); see Ruiz-Troche, 161 F.3d at 87
(applying Puerto Rico law); Ramos v. Caparra Dairy, Inc., 16 P.R.
Offic. Trans. 78, 81–82 (1985). Quilez acknowledges that the right
to contribution establishes that "the onerous effect between the
joint tortfeasors should be distributed in proportion to their
respective degree of negligence," Szendrey, 2003 WL 751582, but,
in the usual case, Quilez argues, the risk of non-payment of one
debtor is placed on the defendants, not the plaintiff, id. The
theory is that even if Ox Bodies lacks a right of contribution --
either in fact or in law -- the general rule of joint and several
liability should apply. No Puerto Rico Supreme Court case cited
by the parties resolves this issue, which the parties also concede.
Ultimately, "we lack 'sufficient guidance to allow us
reasonably to predict' which of our . . . options the Puerto Rico
Supreme Court would choose," Carrasquillo-Ortiz v. Am. Airlines,
Inc., 812 F.3d 195, 199–200 (1st Cir. 2016) (quoting Pagán-Colón,
697 F.3d at 18). Because the allocation of risk is an important
question of Puerto Rico tort law, it is determinative of the appeal
at issue, and the precedents available are not clear, we think the
better course is to certify the question in accordance with the
rules of the Puerto Rico Supreme Court.
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IV.
We affirm the magistrate judge's decision to admit the
testimony of Quilez's expert. We direct entry of judgment against
Ox Bodies' appeal.
As to Quilez's appeal, we hereby certify to the Supreme
Court of Puerto Rico the following question:
Was the magistrate judge correct in this case
to limit the damages against Ox Bodies to
$1,200,000 and deny Quilez a joint and several
damages award of $6,000,000 against Ox Bodies?
We welcome the opinion of the Puerto Rico Supreme Court on any
other aspect of Puerto Rico law that the Justices believe should
be clarified in order to assist in the resolution of the certified
question or to give context to their reply.
The Clerk of this court is directed to forward to the
Supreme Court of Puerto Rico, under the official seal of this
court, a copy of the certified question and this opinion, along
with a copy of the briefs and appendices filed by the parties. We
retain jurisdiction over Quilez's appeal pending that court's
determination.
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