United States Court of Appeals
For the First Circuit
No. 08-1405
ZORAIDA MONTALVO, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE
ESTATE OF JUANA MONTALVO COLON,
Plaintiff, Appellant,
v.
CARLOS GONZALEZ-AMPARO, M.D., JANE DOE, CONJUGAL PARTNERSHIP
GONZALEZ-DOE, DAVID RIVERA-JIMENEZ, M.D., LILLIAM I. VELEZ,
CONJUGAL PARTNERSHIP RIVERA-VELEZ, GEORGE ALCANTARA-CARDI, M.D.,
JANE DOE, CONJUGAL PARTNERSHIP ALCANTARA-DOE, ELIZABETH MARTINEZ-
MATOS, DR. SUSONI HEALTH COMMUNITY SERVICES, CORP., HOSPITAL DR.
CAYETANO COLL Y TOSTE, HOSPITAL EL BUEN PASTOR, INC., POLICLINICA
DE SALUD DEL NORTE, INC., CENTRO DE DIAGNOSTICO Y TRATAMIENTO DE
VILLA LOS SANTOS, XYZ INSURANCE COMPANY, SECUROS TRIPLE-s, INC.,
SINDICATO DE ASEGURADORES PARA LA SUSCRIPCION DE SEGUROS DE
RESPONSABILIDAD PROFESSIONAL MEDICO HOSPITALARIA (SIMED), WALMAR
DOMENECH, JANE DOE, CONJUGAL PARTNERSHIP DOMENECH-DOE, YADIRA G.
MATEO-JIMENEZ, JOHN DOE, CONJUGAL PARTNERSHIP DOE-MATEO-JIMINEZ,
MANUEL MATOS, JANE DOE, CONJUGAL PARTNERSHIP MATOS-DOE, JOSE
ROLON, JANE DOE, CONJUGAL PARTNERSHIP ROLON-DOE, MIGUEL ROMAN-
PAGAN, JANE DOE, CONJUGAL PARTNERSHIP ROMAN-DOE, SERVICOS
RADIOLOGICOS ASSOCIADOS, d/b/a Arecibo Radiology Imaging Center,
CONJUGAL PARTNERSHIP MARTINEZ-DOE,
Defendants, Appellees,
VICTOR PEREZ-ORENGO, JANE DOE, CONJUGAL PARTNERSHIP PEREZ-DOE,
AMADO VELEZ-RIVERA, JANE DOE, CONJUGAL PARTNERSHIP VELEZ-DOE,
MARIA ALONSO-SUAREZ, M.D., JOHN DOE, CONJUGAL PARTNERSHIP DOE-
ALONSO, JORGE PEREZ-BLAS, M.D., JANE DOE, CONJUGAL PARTNERSHIP
PEREZ-DOE, FRANCISCO DE-LA-CRUZ, M.D., JANE DOE, CONJUGAL
PARTNERSHIP DE-LA-CRUZ-DOE, I.P.A. POLICLINICA VILLA LOS SANTOS,
INC., GRUPO MEDICO DE SALUD DEL NORTE, C.S.P., ARTURO MELERO,
VICTOR PEREZ-ORENGO, MAYRA ARLENE TORRES-MORALES, LYDIA VELEZ,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Lynch, Chief Judge,
Leval* and Lipez, Circuit Judges.
Tania M. Pagan with whom The Pagan Law Firm, P.C. was on brief
for appellant.
Hector E. Ramírez-Carbo with whom Ramonita Dieppa Gonzalez and
Vivas & Vivas Law Office were on brief for appellees.
November 16, 2009
*
Of the Second Circuit, sitting by designation.
LEVAL, Circuit Judge. Plaintiff Zoraida Montalvo (hereinafter
“Zoraida” or the “daughter”) appeals from the judgment of the
United States District Court for the District of Puerto Rico
dismissing as time-barred her suit alleging malpractice by the
providers of medical care to her deceased mother, Juana Montalvo-
Colón (hereinafter “Juana” or the “mother”). Because we conclude
that Zoraida brought the action within the time allowed by the
applicable statute of limitations, we vacate the judgment and
remand for further proceedings.
BACKGROUND
From February 1999 to February 2003, the Defendants provided
medical care to Juana. In February 2003, she was diagnosed for the
first time with lung cancer. She then traveled to New York, where
she was admitted to St. Vincent’s Hospital on Staten Island and was
found to have terminal, Stage IV lung cancer. She was discharged
on March 5, 2003 and remained in New York with her daughter Zoraida
until her death a month and a half later, on April 20, 2003.
On April 20, 2004,1 one year after her mother’s death, Zoraida
filed a complaint in the United States District Court for Puerto
Rico. Under Puerto Rico’s general tort statute, 31 L.P.R.A. §
1
On June 22, 2004, the initial, April 20, 2004 complaint was
dismissed without prejudice because Plaintiff lacked local counsel.
Plaintiff re-filed the complaint on June 21, 2005. The parties
agree that April 20, 2004 is the relevant filing date for statute
of limitations purposes.
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5141,2 the suit claimed entitlement to damages for medical
malpractice on two different theories. One claim, brought by
Zoraida as administrator and heir of her mother’s estate, sought
damages for the pain suffered by her mother as the result of the
Defendants’ malpractice. The second claim was Zoraida’s personal
claim, seeking damages for her own emotional suffering (as well as
expenses incurred) as the result of the Defendants’ malpractice
which resulted in the wrongful death of her mother.3
The Defendants moved for summary judgment on the theory that
the suit was untimely under Puerto Rico’s one year limitation
period. They took the position that the claims had accrued by
March 5, 2003, the date Juana was discharged from St. Vincent’s
hospital with a diagnosis of advanced, terminal cancer, which gave
notice to both mother and daughter of any failure on the part of
the Defendants to diagnose properly. Because the suit was not
filed until more than one year later, they argued it was untimely.
The court granted summary judgment, finding the suit untimely.
2
The Puerto Rico tort statute provides: “A person who by an
act or omission causes damage to another through fault or
negligence shall be obliged to repair the damage so done.” 31
L.P.R.A. § 5141.
3
Under Puerto Rico law, the tort of wrongful death gives rise
to two separate actions: “one is the personal action of the
original victim of the accident for the damages that the same
suffered; and the other, the action which corresponds exclusively
and by own right to the deceased’s close relatives for the damages
the death of their predecessor caused them.” Viuda de Delgado v.
Boston Ins. Co., 101 D.P.R. 598, 602 (1973), translation available
at 1973 WL 35626.
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The court reasoned that the claims accrued during February or March
2003 when Zoraida and her mother heard the diagnosis of the New
York doctors at which time they knew or should have known of the
inadequacy of the medical care received in Puerto Rico. Because
the suit was not brought until April 20, 2004, which was more than
a year after the district court found the claim had accrued, the
court ruled that it was barred by the statute of limitations.
Montalvo v. González Amparo, Civ. No. 05-1665 (JAF) (D.P.R. Feb.
20, 2008).
DISCUSSION
“We review the district court’s decision to grant defendant’s
motion for summary judgment on statute of limitations grounds de
novo, construing the record in the light most favorable to the
non-moving party.” Douglas v. York County, 433 F.3d 143, 149 (1st
Cir. 2005). “We will affirm if, based on our independent review of
the evidentiary record, there is no genuine issue of material fact
and the undisputed facts indicate that the moving party is entitled
to judgment as a matter of law.” Id. (citing Fed. R. Civ. P.
56(c)).
I. Statute of Limitations
A federal court sitting in diversity applies the choice of law
rules of the forum state. See Day & Zimmerman, Inc. v. Challoner,
423 U.S. 3, 4 (1975). “Puerto Rico applies the law of the place of
the tort, the lex loci delicti”; accordingly, Puerto Rico law
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governs the action. Jiminez Puig v. Avis Rent-a-Car Sys., 574 F.2d
37, 40 (1st Cir. 1978). When applying Puerto Rico law to
substantive matters, Puerto Rico courts also apply Puerto Rico’s
statute of limitations, as well as the concomitant tolling
provisions of those statutes. Valedon Martinez v. Hosp.
Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1133 (1st Cir.
1986).
The limitation period for actions brought under § 5141 is one
year “from the time the aggrieved person had knowledge thereof.”
31 L.P.R.A. § 5298(2). Accordingly, the claims are not barred if
they accrued on or after April 20, 2003 (one year before the
initial complaint was filed) or if the statute of limitations was
tolled to that date.
The district court determined that the claims had accrued by
March 5, 2003, when Juana was discharged from St. Vincent’s
Hospital with a diagnosis of advanced cancer, and found no basis
for tolling the one-year statute. We disagree, and find that each
of Plaintiff’s claims was within the limitations period.
A. Zoraida’s Personal Claim
Section 5141 of the Puerto Rico Civil Code, as construed by
the courts of Puerto Rico, provides that a close relative
(including a child) of a victim of a tort may sue for her own
mental suffering occasioned by the suffering of the direct victim
of the tort, without need to show that the plaintiff incurred
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either physical injury or economic loss. See Correa v. Hosp. San
Francisco, 69 F.3d 1184, 1197 (1st Cir. 1995)(explaining that under
this section, “mental suffering is generally just as compensable as
physical harm” (internal quotation marks omitted) (quoting Burke
v. Compagnie Nationale Air France, 699 F.Supp. 1016, 1018 (D.P.R.
1988))); see also Commercial Union Ins. Co. v. Gonzalez Rivera, 358
F.2d 480, 483 (1st Cir. 1966) (“[I]t is clear that under Puerto
Rican law the sons and daughters of [a person] who was injured as
a result of the wrongful act of the defendant, have a right of
action for mental suffering, anguish and anxiety caused to them by
reason of their father’s injuries. In other words, sons and
daughters have a sufficiently close relatio[n]ship to their injured
father to come within the scope of . . . Section [5141]; and their
resulting mental pain, suffering and anguish are recognized as an
element of damages.”). Zoraida’s complaint alleges that she
(Zoraida) suffered damages in the form of “serious mental anguish
and moral pain as a result of the death of” her mother, as well as
funeral expenses, and therefore states her own personal claim for
the wrongful death of her mother.
Under Puerto Rico law, such a claim for wrongful death “arises
at the time of death.” Arturet-Vélez v. R.J. Reynolds Tobacco Co.,
429 F.3d 10, 14 (1st Cir. 2005). The date of accrual for the
daughter’s personal claim was therefore no earlier than April 20,
2003, the day her mother died, and her complaint, filed on April
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20, 2004, was within the one-year statute of limitations.
B. Zoraida’s Inherited Claim
Puerto Rico law provides that a decedent’s claim for
tortiously inflicted pain and suffering sustained by the decedent
prior to death can be transmitted to her heirs. See Morel v.
Daimler Chrysler AG, 558 F. Supp. 2d 147, 148 (D.P.R. 2007) (“The
Puerto Rico Supreme Court has generally determined that a civil
cause of action to redress bodily injuries or moral suffering
sustained prior to death may be transmitted to one’s heirs so long
as the cause of action is not ‘so personalized that it depends on
the continued natural life of the deceased.’” (quoting Viuda de
Delgado, 101 D.P.R. at 602)). In addition to her personal claim
for her own suffering, Zoraida, as administratrix and heir of her
mother’s estate, brings such a claim seeking damages for her
mother’s suffering as a result of the Defendants’ medical
malpractice.
The Defendants contend that the mother’s claim was
extinguished by prescription one year after the diagnosis at the
New York hospital in February 2003 made her aware of the earlier
failure of the Defendants to diagnose her cancer. However, under
Puerto Rico law, the statute of limitations for such a claim is
extended by operation of 32 L.P.R.A. § 255.
Section 255 provides: “If a person entitled to bring an action
dies before the expiration of the term limited for the commencement
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thereof, and the cause of action survives, an action may be
commenced by his representatives, after the expiration of that
time, and within one year [of] his death.” 32 L.P.R.A. § 255
(alteration in original). Juana died on April 20, 2003, within the
one-year limitations period that applied to her malpractice claim.
Her claim survived in her heirs. Therefore under § 255, suit could
be “commenced by [her] representative” after the expiration of the
decedent’s time to bring the claim, within one year of Juana’s
death. Zoraida brought the suit within one year of her mother’s
death. The suit is therefore timely.4
The Defendants argue that Plaintiff should not be permitted to
rely on § 255 because she did not cite that section in her papers
in the district court. It is true that, “[o]rdinarily, an
appellant who has not proffered a particular claim or defense in
the district court ‘may not unveil it in the court of appeals.’”
Nat’l Ass’n of Soc. Workers v. Harwood, 69 F.3d 622, 627 (1st Cir.
1995) (emphasis added). See also United States v. Slade, 980 F.2d
27, 31 (1st Cir. 1992) (“[A] party is not at liberty to articulate
specific arguments for the first time on appeal simply because the
general issue was before the district court.”); McCoy v. Mass.
4
The Defendants contend § 255 applies only to estates
constituted under Puerto Rico law and is therefore inapplicable to
Juana’s estate established under New York law. This misreads §
255, which extends the statute of limitations for such inherited
claims without suggesting in any way that it applies only to
estates probated in Puerto Rico.
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Inst. of Tech., 950 F.2d 13, 22 n.7 (1st Cir. 1991) (“Courts are
entitled to expect represented parties to incorporate all relevant
arguments in the papers that directly address a pending motion.”).
We nevertheless reject the Defendants’ argument for two reasons.
First, whether a contention has or has not been raised in a
proceeding is not always absolutely clear; it is at times a matter
of degree. In this instance, Plaintiff had put before the court
the relevant facts and had argued correctly that the date of
accrual of her claim was the date of her mother’s death. Second,
as we made clear in Harwood, the rule that forbids reliance on
appeal on a theory not fully explained in the lower court
proceeding “in the last analysis, . . . is a matter of discretion
. . . [which] admits of an occasional exception.” Harwood, 69 F.3d
at 627. In that case, we allowed the defendants to raise a defense
which they had completely omitted from their arguments in the
district court. We noted several factors that supported our
decision to allow an exception to the customary principle, some of
which are applicable here as well. First, it was “not a case in
which, by neglecting to raise the issue in a timely manner, a
litigant has deprived the court of appeals of useful factfinding.
. . . [T]he omitted issue [was] purely legal in nature.” Id. at
627. Second, as here, “the omitted argument [was] highly
persuasive, a circumstance that often inclines a court to entertain
a pivotal argument for the first time on appeal.” Id. at 628
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(citation and internal quotation marks omitted). The Defendants
offer no refutation of Plaintiff’s argument based on § 255. Third,
“[w]e [saw] no special prejudice or inequity to the [adversary]. .
. . The absence of unfairness has a definite bearing on a decision
to overlook this type of a procedural default.” Id. There would
be no unfairness here in giving Plaintiff the extension of time to
sue provided by the law of Puerto Rico. Finally, “the omission
[was] entirely inadvertent . . . [and] yielded no tactical
advantage.” Id.
It is true that two of the factors we relied on in Harwood are
not present here. Those were the “constitutional magnitude” of the
belated proffer, and that it “implicate[d] matters of great public
moment,” which factor we described as “perhaps [the] most salient”
for our decision. Id. Nonetheless, we think Plaintiff should be
permitted on this record to rely on § 255. Considering the fact
that the issue was raised, albeit in incomplete fashion, in the
district court, together with the several factors enumerated above
that favor granting Plaintiff a reprieve, we have concluded that
this is an instance in which a party will be allowed on appeal to
rely on an argument of law which the party did not develop in the
district court as fully as it should have.5
5
The Defendants also contend that Zoraida was ineligible to
bring the inherited claim for her mother’s suffering for the
benefit of the mother’s heirs because at the time she brought suit
she had not yet been named administratrix of her mother’s estate.
The Defendants’ motion to dismiss in the district court was based,
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CONCLUSION
For the foregoing reasons, we vacate the judgment of the
district court dismissing the suit, and remand for further
proceedings.6 Costs are taxed in favor of the Appellant.
in part, on that theory, but the district court made no ruling on
it. As the Defendants acknowledge, however, Zoraida has since been
appointed by a New York court as administratrix of her mother’s
estate. Even if it would have been appropriate to dismiss without
prejudice before the qualification of an administrator, it appears
that deficiency has since been cured. We leave the issue to be
dealt with in the first instance in the district court in the event
the Defendants make a new motion upon remand.
6
The Defendants contend Zoraida’s claim for her mother’s pain
and suffering should be dismissed for lack of diversity because her
mother Juana, like the defendants, was a domiciliary of Puerto
Rico. The district court did not address this contention. We leave
it to the district court to consider in the first instance.
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