Rosa-Rivera v. Dorado Health, Inc.

United States Court of Appeals
For the First Circuit

No. 13-1328

LIZA D. ROSA-RIVERA; EDGARD FRANQUI-RAMOS;
F.A.F.R., minor child represented by his parents,

Plaintiffs, Appellants,

v.

DORADO HEALTH, INC., d/b/a Alejandro Otero López Hospital, Inc.,

Defendant, Appellee,

JOSEPH CAPRE-FEBUS; CARLOS E. GONZÁLEZ-CAMACHO; JOHN DOE;
JANE DOE-CAPRE; COMPANIES A, B AND C; MARY DOE-GONZÁLEZ;
CONJUGAL PARTNERSHIP GONZÁLEZ-DOE;
CONJUGAL PARTNERSHIP CAPRE-DOE,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Camille L. Vélez-Rivé, U.S. Magistrate Judge]

Before

Torruella, Thompson, and Kayatta,
Circuit Judges.

Michelle A. Ramos-Jiménez, with whom Luis Rafael Rivera Law
Office was on brief, for appellants.
Kenneth Colón for appellee.
May 29, 2015
 THOMPSON, Circuit Judge. Alleging that negligent

conduct occurred during the birth of their son, F.A.F.R., his

parents filed a medical malpractice suit. They prevailed against

the defendant physician but the jury found no liability on the co-

defendant hospital's part. The plaintiffs sought a new trial, the

motion was denied, and they appealed. Concluding this denial was

appropriate, we affirm.

I. BACKGROUND

Liza Rosa-Rivera and Edgard Franqui-Ramos, on their own

behalf and on behalf of their minor son, F.A.F.R., ("Plaintiffs")

filed a diversity-based lawsuit against appellee, Dorado Health,

Inc., d/b/a Alejandro Otero López Hospital, Inc. ("Dorado Health"

or "the hospital"), along with Dr. Joseph Capre-Febus.1 Plaintiffs

alleged that Dr. Capre-Febus (the physician who delivered

F.A.F.R.) and Dorado Health (the hospital where the delivery took

place) acted negligently in connection with the birth of their

son, resulting in F.A.F.R. suffering from trauma, shoulder

dystocia, and ultimately Erb's Palsy. The jury was partially

convinced. It concluded that while both Dr. Capre-Febus and Dorado

Health were negligent, only Dr. Capre-Febus's negligence

proximately caused F.A.F.R.'s impairments. The judgment ordered

1 Another physician was named as well, but a settlement was reached
prior to trial.

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the doctor to compensate the Plaintiffs $807,500. Plaintiffs moved

for a new trial under Federal Rule of Civil Procedure 59(a),

advancing the same arguments they do here.2 The district court,

finding merit to none, denied the motion and this appeal followed.

II. ANALYSIS

Plaintiffs make three claims of error, the first being that

the trial judge erred in not allowing their attorney to ask a

Dorado Health nurse leading questions. The second claimed misstep

was the judge's decision not to include one of their proposed jury

instructions. And finally, Plaintiffs insist that the jury

rendered an inconsistent verdict. We take the issues in that

order.

A. LEADING THE WITNESS

Sara Montalvo, who at the time of trial had been working at

Dorado Health since 1984, was the nurse that assisted in F.A.F.R.'s

delivery. Plaintiffs called Montalvo to testify, and fairly early

on in the questioning counsel began posing leading questions.

Defense counsel objected but the attorney for Plaintiffs persisted

that leading questions were appropriate because Montalvo was

affiliated with Dorado Health. The judge sided with the defense,

2 Plaintiffs also sought to amend the judgment under Federal Rule
of Civil Procedure 59(e) because the judgment incorrectly
indicated that the jury found no negligence on Dorado Health's
part. Recognizing the mistake, the court issued an amended
judgment accurately reflecting the verdict.
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noting that Montalvo was not a hostile witness. When Plaintiffs'

counsel pressed that under the rules hostility is not the only

indicator for leading a witness, and it is appropriate when "the

witness is identified with the other party," the judge stated, "I

don't agree . . . If she becomes hostile, you can lead all the

way." The judge then sustained the defense's objection to the few

additional leading questions asked during the remainder of

Montalvo's examination.

Plaintiffs claim the court's ruling was off-base because a

witness's hostility is not the only justification for posing

leading questions. And, according to the Plaintiffs, because they

could not pose leading questions, the examination of Montalvo was

"a disaster," resulting in a miscarriage of justice justifying a

new trial.3

Plaintiffs are correct on the first point. Leading questions

are generally disfavored on direct examination but "[o]rdinarily,

the court should allow leading questions . . . when a party calls

a hostile witness, an adverse party, or a witness identified with

an adverse party." Fed. R. Evid. 611(c)(2) (emphasis added).

3 In their brief, Plaintiffs also indicate that the judge, at one
point, did not allow them to impeach Montalvo with her deposition
testimony. It is unclear where the Plaintiffs are going with this
pithy, isolated reference. To the extent they are attempting to
assign error to the judge's conduct, the argument is waived for
failure to develop. See González-Morales v. Hernández-Arencibia,
221 F.3d 45, 48 n.3 (1st Cir. 2000).
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Consequently, it seems likely that the judge's ruling was based on

an error of law and therefore an abuse of discretion. See Ira

Green, Inc. v. Military Sales & Serv. Co., 775 F.3d 12, 18 (1st

Cir. 2014). But even assuming this to be the case, the judge's

potential misapplication of the rule is not enough. Prejudice is

required for a party to prevail on a claim of improper exclusion

of leading questions. Rodriguez v. Banco Cent. Corp., 990 F.2d 7,

13 (1st Cir. 1993); Fed. R. Evid. 103(a). For starters, this would

require a proffer on Plaintiffs' part, in other words, a showing

of some specific information that counsel might have elicited if

permitted the use of leading questions. Rodriguez, 990 F.2d at

13; see also Fed. R. Evid. 103(a)(2). That component is missing

here.

Neither at the sidebar with the judge, nor in the motion for

a new trial, did Plaintiffs offer any indication as to what they

might have been able to extract from Montalvo given some leeway

with the questioning. The same goes for their brief to this court,

as well as at oral argument, despite the panel pointing out the

proffer's omission. It was not until post oral-argument, via a

Federal Rule of Appellate Procedure 28(j) letter (ostensibly

submitted to supplement their list of authorities), that

Plaintiffs indicated what they would have proven had they been

allowed to examine Montalvo with leading questions, e.g., omitted

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nursing notes, lies about her findings, and deficient hospital

protocols. Not only is it improper to advance new arguments in a

28(j) letter, Ruskai v. Pistole, 775 F.3d 61, 66-67 (1st Cir.

2014), but it is far too late in the game. See, e.g., United

States v. Bayard, 642 F.3d 59, 63 (1st Cir. 2011) (providing that

the appellant's failure to brief the issue waives it).

Given their failure to establish prejudice, Plaintiffs' first

argument affords no relief. We move on.

B. JURY INSTRUCTIONS

Prior to trial, Plaintiffs proposed jury instructions, the

operative one for our purposes being Instruction 16, which (for

now) it suffices to note concerned the obligation imposed on

hospitals to carefully select and monitor privileged physicians.

After the parties rested, counsel and the judge debated the merit

of Instruction 16, along with other jury instruction and verdict

form matters. The judge, as later explained in the judgment

denying Plaintiffs' motion for a new trial, decided instead to

give other instructions which she felt in essence covered the same

content as Instruction 16 and, unlike that instruction, conformed

to the evidence presented at trial. To this court, Plaintiffs

make a circumscribed argument. They do not claim that any of the

jury instructions issued by the court were problematic, rather

they simply persist that Instruction 16 should have made the cut.

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 Whether Plaintiffs properly preserved their objection to

Instruction 16's non-inclusion is up for debate. The district

court, in the judgment denying the new trial motion, indicated

that the Plaintiffs had properly objected. On appeal, Dorado

Health claims otherwise and Plaintiffs do not say one way or the

other.

Federal Rule of Civil Procedure 51 requires the court to give

parties the opportunity to object to its proposed jury instructions

before closing arguments and the instructions are delivered. Fed.

R. Civ. P. 51(b)(2). For an objection to be timely (except in

circumstances not relevant here), it must be made at this point.

Fed. R. Civ. P. 51(c)(2)(A). Failure to do so means the objection

is forfeited and reviewed for plain error only, the idea being

that the trial judge should be afforded the opportunity to cure

the alleged error and litigants stopped "from ensuring a new trial

in the event of an adverse verdict by covertly relying on the

error." Booker v. Mass. Dep't of Pub. Health, 612 F.3d 34, 41, 43

(1st Cir. 2010); see also Fed. R. Civ. P. 51(d)(2).

It is clear, at least, that Plaintiffs did not object at the

juncture required by Rule 51(c)(2)(A). When the judge asked, just

prior to closing arguments, whether Plaintiffs' counsel had any

issues with the final jury instructions and verdict form, counsel

mentioned a since-resolved issue with the verdict form, but

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indicated no concerns or qualms with the jury instructions.

However, what is less clear is whether this failure to object

definitively places us in the plain error zone.

While a proper request (we have that) and a proper objection

(we are missing that) is required for a party to assign error to

the court's failure to give an instruction, the objection

requirement does not apply when "the court rejected the request in

a definitive ruling on the record." Fed. R. Civ. P. 51(d)(1)(B);

see also Ji v. Bose Corp., 626 F.3d 116, 126 n.7 (1st Cir. 2010).

In those instances, the challenge is deemed preserved and subject

to de novo review. Ji, 626 F.3d at 126 n.7.

Here, there was a lot of back and forth on the record

regarding the jury instructions. It is not the easiest exchange

to follow but it appears that, at one point, the court intended to

include some iteration of Instruction 16 but then was convinced

otherwise by defense counsel, though even then it is not entirely

clear what instruction the court was nixing. Compounding the

confusion is Plaintiffs' indication in their brief to this court

that the transcripts did not fully reflect the exchange on

Instruction 16. Given the difficulty we have discerning "a

definitive ruling on the record," Fed. R. Civ. P. 51(d)(1)(B), and

the fact that Plaintiffs do not rely on, or even reference, Rule

51(d)(1)(B)'s relaxed objection requirement, we deem Plaintiffs'

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objection to Instruction 16's non-inclusion unpreserved. See Ji,

626 F.3d at 126 n.7 (treating plaintiff's jury instruction claim

as unpreserved when plaintiff failed to make a Rule 51(d)(1)(B)

argument). Our review is therefore for plain error only. Booker,

612 F.3d at 43; Fed. R. Civ. P. 51(d)(2).

With that decided we turn to the language of the relevant

jury instructions. Plaintiffs' proposed Instruction 16 sought to

inform the jury that "[h]ospitals have a continuing obligation to

care for the health of their patients" by carefully selecting the

physicians they offer privileges to, requiring the physicians'

professional improvement courses and technological knowledge be up

to date, monitoring the physicians and intervening in the event of

an "obvious act of medical malpractice," and revoking a physician's

privileges "in the case of repeated or gross acts of malpractice."

Plaintiffs lifted this concept from a Puerto Rico case, Marquez

Vega v. Martinez Rosado, 16 P.R. Offic. Trans. 487 (1985), and

indeed the proposed instruction accurately stated what the case

held.

The trial court; however, focused on another aspect of that

case, directly quoting Marquez Vega in Instruction 20: "As a rule,

the hospital should not be held liable for the exclusive negligence

of an unsalaried physician, who was first and foremost entrusted

with [the] patient's health." The court coupled this with

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Instruction 19 (titled "Vicarious Responsibility of Hospitals")

which, citing Núñez v. Citrón, 15 P.R. Offic. Trans. 786 (1984)

and P.R. Laws Ann. tit. 31, § 5142, provided that "[h]ospitals and

doctors have a duty to offer their patients the attention that

satisfies the demands that are generally recognized by the medical

profession in light of the modern means of communication and

education" and that a breach of such duty creates non-contractual

responsibility on the part of the hospital.

To this court, Plaintiffs trumpet Marquez Vega as firmly

establishing that hospitals owe patients in Puerto Rico the degree

of care that a reasonable and prudent person would exercise in the

same circumstances. They persist that according to Marquez Vega,

a hospital's obligation to protect patient health extends beyond

the granting of physician privileges, with the various dictates of

Instruction 16 applying throughout a doctor's tenure. Pointing to

Dr. Capre-Febus's testimony that he had been sued for malpractice

eight times,4 Plaintiffs make the leap that Dorado Health failed

to carefully select and then monitor the doctor, and therefore the

jury should have been instructed on the hospital's continuing

obligations. Dorado Health counters that any attempt on

Plaintiffs' part to show that the hospital failed to properly

4 In their brief, Plaintiffs state that the doctor was sued at
least ten times but the testimony they cite indicates there were
eight law suits.
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supervise Dr. Capre-Febus was entirely unsupported by the evidence

at trial and, therefore, the proffered instruction rightly

rejected.

As we said, proposed Instruction 16 accurately stated the law

but Instruction 19 and 20 did as well. Even so, we are not fully

convinced that the two latter instructions, as the trial court

concluded, "cover in essence the content of plaintiffs' proposed

Instruction No. 16." Instruction 16 explains very specific

concepts relative to a hospital's duty to monitor physicians and

intervene in certain instances, e.g., in the face of repeated

malpractice, while Instruction 19 relates more generally to a

hospital's duty to conform to generally accepted, modern medical

standards and Instruction 20 deals with a wholly different concept,

that is, when a hospital is not liable for an unsalaried physician.

That being said, "the judge is not obligated to instruct on

every particular that conceivably might be of interest to the

jury," rather the real test is whether as a whole "the instructions

adequately illuminate the law applicable to the controlling issues

in the case without unduly complicating matters or misleading the

jury." United States v. DeStefano, 59 F.3d 1, 3 (1st Cir. 1995);

see also United States v. Fermin, 771 F.3d 71, 80 (1st Cir. 2014).

Here, the proffered instructions did convey the thrust of Puerto

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Rico vicarious liability law, if not the more specific points

Plaintiffs sought to make.

The other problem for Plaintiffs is the dearth of evidence

supporting the theory of liability contained in Instruction 16, a

vacuity that did not go unnoticed by the trial judge or defense

counsel. A party is entitled to have its legal theory presented

to the jury if it is supported by the evidence. Sullivan v. Nat'l

Football League, 34 F.3d 1091, 1107 (1st Cir. 1994). Here,

Plaintiffs, as explained in their brief, sought to use the previous

lawsuits to show that Dorado Health failed to carefully select and

then monitor Dr. Capre-Febus. Yet Plaintiffs only point us to Dr.

Capre-Febus's testimony which indicated that he had been sued eight

times.5 On the selection component, the evidence Plaintiffs cite

actually indicates that Dr. Capre-Febus had never been sued at the

time he was initially granted privileges, a fact which the hospital

had inquired about. As for the monitoring piece, they offer no

evidence relative to what Dorado Health knew about the suits, the

nature of the alleged malpractice (other than that one dismissed

suit involved shoulder dystocia), whether Dr. Capre-Febus was ever

5 Plaintiffs also claim the record reflects that Dorado Health did
not take any action against Dr. Capre-Febus nor investigate the
allegations in the various complaints; however, the record support
cited by Plaintiffs says no such thing. Dr. Capre-Febus offered
no testimony on either point.
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actually found to have committed malpractice, or what hospital

policies were for monitoring lawsuits.

A finding of plain error is a rarity in civil cases, Contour

Design, Inc. v. Chance Mold Steel Co., Ltd., 693 F.3d 102, 112

(1st Cir. 2012), and this case is more the norm than the exception.

Ultimately, a trial judge has wide latitude in deciding how to

best communicate complicated rules to the jury, DeCaro v. HASBRO,

Inc., 580 F.3d 55, 63 (1st Cir. 2009), and the judge here did not

overstep. We find no plain error.

C. INCONSISTENT VERDICT

Plaintiffs' final argument is a brief, tag-along to the

previous issue. They claim that the jury rendered an inconsistent

verdict because it supposedly assigned fault to Dorado Health after

finding its negligence was not a proximate cause of F.A.F.R.'s

injury. The alleged inconsistency, say the Plaintiffs, was due to

the court's failure to include Instruction 16.

Plainly put, we fail to see any inconsistency in the verdict.

On the verdict form, the jury answered "yes" when asked whether

Dorado Health was negligent and "no" when queried whether that

negligence caused F.A.F.R.'s impairments. Nothing inconsistent

there. A successful medical malpractice claim under Puerto Rico

law, requires a party to establish "(1) the duty owed; (2) an act

or omission transgressing that duty; and (3) a sufficient causal

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nexus between the breach and the harm." Marcano Rivera v. Turabo

Med. Ctr. P'ship, 415 F.3d 162, 167 (1st Cir. 2005); see also P.R.

Laws Ann. tit. 31, § 5141. The jury simply found the third

component lacking.

The jury then inserted a monetary amount for F.A.F.R.'s

physical impairment, pain and suffering, and reduction of

potential income respectively, which the verdict form explicitly

instructed the jury to do if it found either Dr. Capre-Febus or

Dorado Health caused the minor plaintiff's injuries. Again,

nothing irreconcilable there.

No more needs to be said. Plaintiffs' claim of inconsistency

is meritless.

III. CONCLUSION

For the reasons made plain above, the court did not err.

Affirmed.

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