United States Court of Appeals
For the First Circuit
No. 05-2618
HÉCTOR MUÑIZ; SONIA CRESPO;
MOISÉS MUÑIZ-CRESPO,
Plaintiffs, Appellees,
v.
DR. SALVADOR ROVIRA-MARTINÓ,
Defendant, Appellant,
HOSPITAL SAN ANTONIO, INC., d/b/a HOSPITAL SAN ANTONIO;
A-Z INSURANCE COMPANIES,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Cyr, Senior Circuit Judge.
Erick Morales-Pérez, for appellant.
David Efron, with whom Kevin G. Little and Law Offices David
Efron, were on brief, for appellees.
June 22, 2006
TORRUELLA, Circuit Judge. On February 6, 2002, Moisés
Muñiz-Crespo ("Moisés"), a minor, and his parents, Héctor Muñiz and
Sonia Crespo (collectively "plaintiffs"), brought this diversity
action in the United States District Court for the District of
Puerto Rico, alleging medical malpractice against defendant Dr.
Salvador Rovira-Martinó ("Dr. Rovira").1 Plaintiffs requested
damages caused by Dr. Rovira's failure to provide Moisés with
adequate pre-natal care and for his mishandling of the infant's
delivery.
On May 15, 2003, a jury found that Moisés suffered a
lesion in his brachial plexus2 due to traction during his delivery,
which permanently impaired the use of his left arm and hand. The
jury awarded compensatory damages in the amount of two million
dollars. On June 11, 2003, the district court reduced the award to
$1,790,000. Dr. Rovira appealed the judgment and we affirmed.
Muñiz v. Rovira, 373 F.3d 1 (1st Cir. 2004). On May 10, 2004,
Rovira filed a Motion to Set Aside Judgment, pursuant to Rule
1
Plaintiffs also filed suit against Hospital San Antonio, Inc.
and the Puerto Rico Insurance Guaranty Association, but the parties
settled on December 9, 2002 and April 11, 2003, respectively, and
those claims are not relevant to this appeal.
2
The brachial plexus is "formed from a group of combining nerve
roots that eventually divide again to form both motor and sensory
peripheral nerves. These peripheral nerves are responsible for the
entire sensory and motor supply to the upper extremities
(shoulders, arms, forearms, and hands) and some muscles of the back
and chest."
http://neurosurgery.ucla.edu/Diagnoses/PeripheralNerve/Peripheral
NerveDis_1.html.
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60(b)(3) of the Federal Rules of Civil Procedure. On September 9,
2004, the district court denied the motion, and Rovira now appeals,
requesting that we grant the motion, or in the alternative, remand
for an evidentiary hearing. After careful consideration, we
affirm.
I.
Sonia Crespo came into Dr. Rovira's care when she was
thirty weeks pregnant. She was thirty-eight years old, diabetic,
and pregnant with her sixth child. The combination of these
factors made Sonia a high-risk patient, and the jury heard evidence
from which it concluded that Dr. Rovira breached the applicable
standard of care with respect to her pregnancy and Moisés's
delivery. At trial, the jury heard evidence that Dr. Rovira failed
to monitor and control Sonia's blood sugar levels during the later
stages of her pregnancy, and did not monitor adequately (through
ultrasound examinations and oxytocin challenge tests) Moisés's
status during gestation. These omissions increased the risk that
Moisés would be macrosomic, i.e., a large infant. Large infants
must be delivered using specific methods (ideally by caesarean
section) to avoid injury, and plaintiffs' expert testified that Dr.
Rovira failed to take the necessary precautions to determine
whether Moisés was macrosomic.
Moisés was in fact a macrosomic infant, and he
experienced a traumatic delivery on April 29, 2000, during which he
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sustained an injury to his brachial plexus. The brachial plexus
injury led Moisés to develop Erb's Palsy, a paralysis of the
cervical spinal nerves corresponding to the brachial plexus. As a
result of the injury, Moisés's left shoulder, arm, and hand
suffered atrophy and did not develop normally.
The jury heard expert testimony to the effect that Moisés
has little range of motion and diminished reflexes on his left
side, even after extensive treatment and two surgeries. Sonia
testified that Moisés cannot play, bathe, use the restroom, or
attend school without extensive supervision and assistance.
Plaintiffs' expert testified that even if he continues with
physical therapy, Moisés's condition will affect him for the rest
of his life. Dr. Rovira, in turn, presented contrary testimony
from an expert who predicted that Moisés would fully recover.
One year and five months after judgment was entered for
plaintiffs, Dr. Rovira submitted to the district court video
surveillance footage3 of Moisés in support of his motion to set
aside judgment on the basis that plaintiffs had misrepresented the
extent of Moisés's injuries at trial.
The district court reviewed the surveillance footage and
made the following observations: 1) On November 6, 2003, Moisés
3
Dr. Rovira had retained North American Investigation (NAI), a
private investigative agency, to conduct the surveillance in an
effort to determine the extent of impairment to the mobility of
Moisés's left arm.
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appears to be picking something up from the floor with his right
hand while protecting his left arm. The left arm appears stiff and
shows no signs of ordinary mobility; 2) On the same date, Moisés
appears to be trying to lower the hood of his jacket without using
his left arm; 3) On January 6, 2004, Moisés appears, holding and
"protecting" his left arm; 4) On January 7, 2004, Moisés appears,
carrying a bag of indeterminate weight on his shoulders, but not
using his left arm; 5) On March 3, 2004, Moisés was observed
walking and "showing a distinct and clear[ly] stiff left arm"; and
6) On April 28, 2004, Moisés appears to have had full movement of
his right arm, but his left arm was stiff as he waited for the bus
to go to school.
II.
We review denial of a Motion to Set Aside Judgment under
Rule 60(b) of the Federal Rules of Civil Procedure for abuse of
discretion. Karak v. Bursaw Oil Corp., 288 F.3d 15, 19 (1st Cir.
2002). Under 60(b)(3), "the court may relieve a party or a party's
legal representative from a final judgment, order, or proceeding
for . . . fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an adverse
party." Fed. R. Civ. P. 60(b)(3). A successful rule 60(b)(3)
motion has two elements: "First, the movant must demonstrate
misconduct -- such as fraud or misrepresentation -- by clear and
convincing evidence. Second, the movant must show that the
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misconduct foreclosed full and fair preparation or presentation of
[his] case." Karak, 288 F.3d at 20-21 (citation and internal
quotation marks omitted).
Dr. Rovira argues that he has satisfied both prongs under
Karak, and that the district court abused its discretion by denying
his motion to set aside judgment. As to the first prong, he claims
that plaintiffs misrepresented Moisés's injury and the extent of
his impairment. Because we find that Dr. Rovira has not met his
burden under the first prong, we do not consider the merits of his
argument under the second.
In support of his allegation of misrepresentation, Dr.
Rovira presents an alternative interpretation of the events
depicted in the surveillance video. He disagrees with the court's
analysis of the video, essentially arguing that Moisés's failure to
use his left arm or hand in the activities depicted "in no[] way
evinces the child having trouble using his left arm" because "he
could be right-handed." Based solely upon this flimsy argument,
Dr. Rovira concludes that the video actually depicts Moisés with a
functional arm, and argues therefore that he has satisfied the
first Karak prong. We find Dr. Rovira's video evidence to be
neither clear nor convincing.
Under Rule 52 of the Federal Rules of Civil Procedure,
"[f]indings of fact, whether based on oral or documentary evidence,
shall not be set aside unless clearly erroneous." We are bound by
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this deferential standard of review, clarified by the Supreme Court
in Anderson v. City of Bessemer City, N.C., 470 U.S. 564 (1985).
In that case the Court held that,
[i]f the district court's account of the
evidence is plausible in light of the record
viewed in its entirety, the court of appeals
may not reverse it even though convinced that
had it been sitting as the trier of fact, it
would have weighed the evidence differently.
Where there are two permissible views of the
evidence, the factfinder's choice between them
cannot be clearly erroneous. This is so even
when the district court's findings do not rest
on credibility determinations, but are based
instead on physical or documentary evidence or
inferences from other facts.
Id. at 573-74 (citations and internal quotation marks omitted).
The Court could scarcely have been more clear on this point: we may
not exercise de novo review over the district court's account of
the video evidence in this case. Under the clear error standard,
Dr. Rovira must convince us that there was only one permissible
interpretation of the surveillance footage, and that the district
court's interpretation was clearly incorrect. Dr. Rovira has not
met this burden. Because we find that Dr. Rovira has not satisfied
the first prong of Karak, we need not continue to consider the
second.
Dr. Rovira requests, in the alternative, that we remand
for an evidentiary hearing to ascertain the gravity of Moisés's
injuries. Dr. Rovira does not develop any argument in support of
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this request and we consider it waived. Am. Cyanamid Co. v.
Capuano, 381 F.3d 6, 18 (1st Cir. 2004).
We award standard costs to the appellees. The appellees'
request for attorneys' fees, made in the closing sentence of
appellees' brief, must be made by separate motion, 1st Cir. Loc. R.
39(b), and we note that (absent statute) such motions are granted
only in egregious circumstances.
III.
For the foregoing reasons, we affirm.
Affirmed.
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