Kenyon v. Gonzalez-Del Rio

United States Court of Appeals
For the First Circuit

Nos. 17-1686, 17-2217

JOHN KENYON, individually, on behalf of his conjugal partnership
and as parent and natural guardian of C.A.K.; RHEA KENYON,
individually, on behalf of her conjugal partnership and as
parent and natural guardian of C.A.K.; C.A.K.; CONJUGAL
PARTNERSHIP KENYON-KENYON,

Plaintiffs, Appellants,

v.

DR. RICARDO CEDENO-RIVERA; DR. JUAN R. JIMENEZ-BARBOSA; DR.
MARIA DE LOS ANGELES RODRIGUEZ-MALDONADO; SIMED, Insurers
Syndicate for the Joint Underwriting of Medical-Hospital
Professional Liability Insurance; SIMED 1, as insurer for Dr.
Juan R. Jimenez-Barbosa; SIMED 3, as insurance carrier of Dr.
Maria de los Angeles Rodriguez; SIMED 4, as insurance carrier of
Dr. Ricardo Cedeno-Rivera; DR. EVELYN GONZALEZ-DEL RIO; DR.
MARIA COMAS-MATOS; JOE DOES 1-10; INSURANCE COMPANIES A to Z;
JOHN DOE 1; CONJUGAL PARTNERSHIP DOE 1-COMAS; JOHN DOE 2;
CONJUGAL PARTNERSHIP DOE 2-GONZALEZ; CONJUGAL PARTNERSHIP
CEDENO-DOE 2; JOHN DOE 3; CONJUGAL PARTNERSHIP DOE 3-RODRIGUEZ;
SIMED 2, as insurance carrier of Dr. Evelyn Gonzalez-del Rio;
SIMED 5, as insurance carrier of Dr. Maria Comas-Matos; MS.
RICARDO CEDENO RIVERA, wife of Ricardo Cedeno-Rivera,

Defendants, Appellees,

HOSPITAL SAN ANTONIO, INC.,

Defendant, Third-Party Plaintiff, Appellee,

SIMED 7, insurer of Dr. Richard Doe; SERVICIOS MEDICOS DE
ANASCO, INC.; MUNICIPALITY OF ANASCO; DR. RICHARD DOE; MARY ROE,
wife of Dr. Richard Doe; CONJUGAL PARTNERSHIP DOE-DOE, composed
by Dr. Richard Doe and Mary Doe; DR. MARY ROE; RICHARD ROE,
husband of Dr. Mary Roe; CONJUGAL PARTERNSHIP ROE-ROE, composed
by Richard Roe and Dr. Mary Roe; THOMAS ROE; ABC INSURANCE CO.;
DEF INSURANCE CO.; HIJ INSURANCE COMPANY: JKL INSURANCE CO.; RQS
INSURANCE COMPANY; COMPANY MNO; COMPANY OPQ; SIMED 8, insurer of
 DR. Mary Roe; DR. FRANCISCO MORALES,

Third-Party Defendants, Appellees,

ADMIRAL INSURANCE COMPANY; JANE DOE 3; CONJUGAL PARTNERSHIP
JIMENEZ-DOE 3,

Defendants.

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

[Hon. Silvia L. Carreño-Coll, U.S. Magistrate Judge]

Before

Kayatta and Howard,
Circuit Judges.*

James Healy, with whom Julie Soderlund and Sullivan & Brill,
LLP were on brief, for appellants.
Jose H. Vivas, with whom Vivas & Vivas was on brief, for
appellee Dr. Ricardo Cedeño-Rivera.
Benjamin Morales Del Valle, with whom Morales Morales Law
Offices was on brief, for appellee Dr. María de Los Ángeles
Rodríguez-Maldonado.
Jeannette Lopez de Victoria, with whom Oliveras & Ortiz,
P.S.C. was on brief, for appellee Dr. Juan R. Jiménez-Barbosa.
Carlos G. Martínez-Vivas, with whom Martinez-Texidor &
Martínez-Vivas was on brief, for appellee Hospital San Antonio,
Inc.
Nidia I. Teissonniere for appellee SIMED 1, 3 & 4.

August 25, 2022

* Judge Torruella heard argument in these appeals, but he
did not participate in the decision. See 28 U.S.C. § 46(d).
 HOWARD, Circuit Judge. These appeals require us to

interpret and apply a Puerto Rico statute that has been amended

several times during the pendency of this litigation. The appeals

arise out of a medical malpractice suit filed by the plaintiffs-

appellants, John and Rhea Kenyon, on behalf of themselves, their

conjugal partnership, and their minor daughter, C.A.K.

(collectively, "Kenyon"), against the Hospital San Antonio, Inc.

("HSA") and several doctors who worked in San Antonio Hospital's

emergency room. Kenyon alleged that the named defendants, Drs.

Ricardo Cedeño-Rivera, Juan R. Jiménez-Barbosa, and María de Los

Ángeles Rodríguez-Maldonado (collectively, "the physicians"),1

breached their duty of care and departed from accepted medical

standards when treating C.A.K. in the emergency room of San Antonio

Hospital in 2010.

Following discovery, the physicians moved for summary

judgment, arguing that they were absolutely immune from liability

for negligence under the 2013 amendments to Article 41.050 of the

Puerto Rico Insurance Code. Law No. 150-2013 (amending P.R. Laws

Ann. tit. 26, § 4105) ("Law 150"). The motion was joined by both

HSA and the Insurers Syndicate for the Joint Underwriting of

Medical-Hospital Professional Liability Insurance ("SIMED"), the

1 The original complaint named several other individuals,
including Drs. Maria Comas-Matos and Evelyn Gonzalez-Del Rio, as
defendants. However, these individuals did not join the motion
for summary judgment and have not entered an appearance before us.

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physicians' professional liability insurance provider. The

district court agreed and granted partial summary judgment to the

physicians.

After the district court's ruling, another district

court in the District of Puerto Rico analyzed the application of

Law 150 to HSA and medical professionals working at San Antonio

Hospital. Oquendo-Lorenzo v. Hospital San Antonio, Inc., 256 F.

Supp. 3d 103 (D.P.R. 2017). Unlike the district court in Kenyon's

case, however, the district court in Oquendo-Lorenzo concluded

that HSA was not entitled to a cap on damages, and that the doctor

in Oquendo-Lorenzo was not entitled to absolute immunity. Kenyon

subsequently moved for reconsideration in light of the Oquendo-

Lorenzo decision. The district court denied that motion.

Kenyon appealed both decisions and the appeals have been

consolidated. We affirm.

I. Factual Background

The facts underlying the present suit are largely

undisputed. In early 2010, C.A.K. began experiencing symptoms of

vasculitis, and her parents sought treatment for her condition

from her primary care physician. In the early hours of August 14,

2010, C.A.K.'s symptoms became severe, so her mother took her to

the emergency room at San Antonio Hospital, where she was evaluated

by Dr. Cedeño-Rivera, a licensed physician who worked in the ER.

Dr. Cedeño ordered several tests and made a provisional diagnosis

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of gastroenteritis and dehydration. However, his shift ended

before the test results were available, and care of C.A.K.

transferred to Dr. Rodríguez-Maldonado, another ER doctor.

The tests showed some evidence of acute kidney failure,

but Dr. Rodríguez nevertheless discharged C.A.K. at 6:00 P.M. on

August 15, 2010. C.A.K.'s condition continued to deteriorate, and

she was taken to various other physicians over the next three

weeks. Finally, on September 8, 2010, C.A.K. was diagnosed with

renal failure and was taken to the ER at San Antonio Hospital to

be stabilized. While there, she was diagnosed with acute renal

failure and anemia and ordered to be transferred to University

Pediatric Hospital in San Juan. However, C.A.K. was not

transferred until 2:15 P.M. the next day. During this time, both

Dr. Rodríguez and Dr. Jiménez-Barbosa were involved in the

treatment of C.A.K.

C.A.K. remained at University Pediatric Hospital until

November 2, 2010. By the time she was discharged, she had lost

99% of the function in her kidneys and required daily dialysis.

She eventually received a kidney transplant in 2014.

Kenyon initially sued HSA and the physicians in the U.S.

District Court for the District of Puerto Rico on September 7,

2011, asserting a claim under the Emergency Medical Treatment and

Active Labor Act ("EMTALA"), and also state-law claims. The suit

was dismissed on June 28, 2013, after the district court dismissed

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all federal EMTALA claims with prejudice and declined to exercise

supplemental jurisdiction over Kenyon's medical malpractice

claims, dismissing them without prejudice.

On June 27, 2014, after the family had moved to New

Jersey, Kenyon refiled the suit for medical malpractice under the

district court's diversity jurisdiction. Following discovery, the

physicians, SIMED, and HSA moved for summary judgment. The

physicians argued that they were immune from suit due to Article

41.050. HSA also sought summary judgment with respect to the

question of whether it was entitled to a limitation on liability

for the claims against it.

On March 30, 2017, the district court granted

defendants' motions for partial summary judgment. It held that

the physicians were immune from suit under the 2013 version of

Article 41.050 and, by extension, that SIMED could not be required

to compensate Kenyon for damages resulting from that alleged

misconduct. See Colon v. Ramirez, 913 F. Supp. 112, 119 (D.P.R.

1996) ("[T]he immunity afforded state doctors is not a personal

defense but rather the 'inexistence of a cause of action' and . . .

where no cause of action lies against the insured, the insurer is

not liable." (citing Lind Rodríguez v. Commonwealth of Puerto Rico,

12 P.R. Offic. Trans. 85 (1928))). The court also held that HSA's

liability "for all damages alleged by all parties and by all causes

of action[] in the complaint" was capped at $150,000. However, it

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found that there was a genuine issue of material fact with respect

to HSA's liability, and allowed that portion of the suit to

proceed.2

After this appeal was filed, Kenyon sought

reconsideration in the district court, arguing that Oquendo-

Lorenzo represented a change in controlling law. The district

court disagreed, and Kenyon appealed the denial of reconsideration

as well.

The two appeals were consolidated before us.

II. The Statutory Scheme

Because this case rests on the proper interpretation of

2 As a result, this appeal is interlocutory since the district
court's grant of summary judgment did not fully dispose of the
claims against HSA. At our direction, pursuant to Federal Rule of
Civil Procedure 54(b), the district court issued a written
statement of reasons for authorizing this appeal, specifying that
the summary judgment order fully adjudicated all claims against
the individual physicians and against SIMED. The district court
found that these claims did not overlap with the claims pending
against HSA and did not require further fact-finding, so an
interlocutory appeal was appropriate. We agree, and proceed to
the merits of this appeal.
We note that the district court also appeared to certify its
holding that HSA was entitled to a liability cap. But that
determination is not final. Spiegel v. Trustees of Tufts Coll.,
843 F.2d 38, 43 (1st Cir. 1988) (in reviewing Rule 54(b)
certification, "we determine for ourselves whether the judgment
has the requisite aspects of finality"); see, e.g., Gen.
Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022, 1030-31 (6th
Cir. 1994) (declining interlocutory appeal of determination as to
damages but not liability); Carpenter v. Liberty Ins. Corp., 850
F. App'x 351, 353–54 (6th Cir. 2021). Therefore, the issue of
HSA's liability cap is not part of this appeal and we do not
address it.

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P.R. Laws Ann. tit. 26, § 4105, we start by tracing the evolution

of the statute.3 Article 41.050 of the Puerto Rico Insurance Code

originally passed in 1986 and provided certain medical providers

with limits on liability for medical malpractice. Over the years,

the provision has been amended repeatedly.

As of 2010, when C.A.K. was treated at San Antonio

Hospital, Article 41.050 had last been amended in 2006. This

version immunized all "health services professional[s]" who worked

as "employee[s]" of the Commonwealth of Puerto Rico, "its

dependencies and instrumentalities," the Comprehensive Cancer

Center of the University of Puerto Rico, "and the municipalities

or contractor[s] thereof" from suits for damages "because of

culpability or negligence arising from malpractice

incurred . . . while acting in compliance of his/her duties and

functions." Law No. 260-2006 (amending P.R. Laws Ann. tit. 26,

§ 4105).

The statute was amended on June 27, 2011, a few months

before Kenyon first filed suit in federal district court,

specifically to protect the employees of certain medical

providers, namely Mayagüez Medical Center. See Law 103-2011

3 In doing so, we cite to the translations of the statute that
the parties provided to the district court as part of the summary
judgment record. See, e.g., Puerto Ricans for Puerto Rico Party
v. Dalmau, 544 F.3d 58, 67 (1st Cir. 2008) (explaining that the
parties have an obligation to provide certified translations of
any Spanish-language documents on which they rely).

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(amending P.R. Laws Ann. tit. 26, § 4105) ("Law 103"). The

relevant section of this version of the statute did not explicitly

mention San Antonio Hospital.

The statute was again amended on September 29, 2012,

while Kenyon's initial suit was ongoing. This version of the

statute granted immunity to healthcare professionals operating in

the "neonatal and pediatric intensive care units, operating,

emergency, and trauma rooms of the San Antonio Hospital of

Mayagüez." It also noted that for the "internists and

pediatricians of the neonatal intensive care units, and the

obstetrician gynecologists and surgeons of the San Antonio

Hospital," the liability caps in Section 3077 would apply. Law

278-2012 (amending P.R. Laws Ann. tit. 26, § 4105) ("Law 278").4

The statute made clear that these protections would "start to

company [sic] immediately after [the law's] approval." Id.

(emphasis added).

On December 10, 2013, a few months after Kenyon's initial

suit had been dismissed but before the present suit was filed,

Article 41.050 was amended yet again. See Law 150. Law 150 did

not significantly change the language granting immunity and limits

on liability to medical professionals. However, Law 150 did

4 Section 3077 waives sovereign immunity in certain
situations, but also establishes liability caps. P.R. Laws Ann.
tit. 32, § 3077 (2011).

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include a retroactivity provision, which stated that the Act:

shall start to govern immediately after its
approval, and shall have retroactive effect
over any cause of action in any legal
proceeding that has been constituted or filed
before any competent court or adjudicative
forum since June 27, 2011 on forward and that
has not been adjudicated or settled, in a
final and binding manner, by a court or
competent forum, or over any fact occurred on
or after June 27, 2011 over which no final and
binding judgment has been issued.

This version of the statute was in place when Kenyon filed the

present suit against HSA and the physicians. The district court

applied this version of Article 41.050 when it granted summary

judgment to the physicians and SIMED.

In August of 2017, after the district court had granted

summary judgment for the physicians and SIMED, the Puerto Rico

legislature again amended Article 41.050. Law No. 99-2017

(amending P.R. Laws Ann. tit. 26, § 4105) ("Law 99"). These

amendments specified that HSA would be subject to the "limits of

liability" included in "Act No. 104 of June 29, 1955." The 2017

amendments, like the 2013 amendments, included a retroactivity

provision explaining that the 2017 version of Article 41.050 would

apply to all cases filed after June 2011 that had not yet been

"adjudicated or settled in a final and binding manner, . . . or

with regard to any fact taking place on or after June 27, 2011,

over which a final and binding judgment has not yet been issued."

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 III. The Statutory Interpretation Question

The focus of Kenyon's appeal is his contention that the

district court improperly read Law 150, by virtue of its

retroactivity provision, to immunize the physicians for conduct

that occurred before the physicians of San Antonio Hospital were

explicitly included in the scope of Article 41.050. The language

of Law 150, Kenyon argues, is ambiguous and therefore should be

read narrowly to allow the suit to proceed to trial.

A. Law 150

Kenyon focuses on Law 150 -- that is, the 2013 amendments

to Article 41.050 -- which is the same version of the statute the

district court applied. We agree that Law 150 applied to the

present case based on the text of its retroactivity provision.5

Because the proper interpretation of the statute is a

5 The district court explained that Law 150 applied in the
case because of the retroactivity provision in the statute, which
specified that it would apply in all cases filed after June 27,
2011, in which there was not yet a final and binding judgment.
When Law 150 was passed (and when the district court ruled),
Kenyon's case against the physicians and SIMED had not yet been
adjudicated in a binding manner. Therefore, the 2013 retroactivity
provision applied, and thus, so did the 2013 version of the law.
In August 2017, after the district court granted summary
judgment to the relevant defendants, the Puerto Rico legislature
again amended Article 41.050. The 2017 version, "Law 99," also
contained a retroactivity provision, explaining that the law would
apply retroactively to all cases filed since June 27, 2011, that
had yet to be adjudicated or settled in a final and binding manner.
By the time Law 99 went into effect, however, a binding and
conclusive judgment had been issued as to the physicians and SIMED.
Thus, we do not apply Law 99 in this case, for the same reasons we
explained in Oquendo-Lorenzo. See Oquendo-Lorenzo v. Hospital San

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question of law decided by the district court at summary judgment,

our review is de novo. Hannon v. City of Newton, 744 F.3d 759,

765 (1st Cir. 2014). In evaluating Kenyon's arguments, we are

mindful of our obligation to faithfully apply the substantive law

of Puerto Rico and take our cues from the Puerto Rico Supreme Court

with respect to the proper method of statutory interpretation.

See Quality Cleaning Products R.C., Inc. v. SCA Tissue N. Am.,

LLC, 794 F.3d 200, 207 (1st Cir. 2015) ("A federal court sitting

in diversity cannot be expected to create new doctrines expanding

state law." (quoting Gill v. Gulfstream Park Racing Ass'n, 399

F.3d 391, 402 (1st Cir. 2005)).

Here, Kenyon argues that the text of the 2013 amendments

to Article 41.050 are ambiguous with respect to the scope of their

retroactivity. The amendments, Kenyon suggests, can be read to

apply only to those hospitals and organizations that were protected

by Article 41.050 before the 2011 amendments were passed.

Alternatively, per Kenyon, they can be read to apply only to

conduct that occurred after June 27, 2011.

Such readings are contradicted by the text of the

retroactivity clause. The retroactivity clause in the 2013

amendments explains that they will apply to:

"any cause of action in any legal proceeding that has been

Antonio, Inc., Nos. 17-1810 & 18-1936, slip op. at 11-15 (1st Cir.
Aug. 25, 2022).

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constituted or filed . . . since June 27, 2011 on forward and that

has not been adjudicated or settled, in a final and binding manner

. . . ." Law 150 (emphasis added). By its terms, the

retroactivity clause does not apply only to conduct that occurred

after June 27, 2011; nor does it draw any distinction between

institutions that were protected by Article 41.050 before 2011 and

after 2011. While the retroactivity clause is unclear as to some

points, it is clear on the relevant issues. Kenyon's claims were

filed after June 27, 2011, so the clause plainly applies.

Because the text of the statute is clear on that point,

our analysis ends there, and we need not look elsewhere. See P.R.

Laws Ann. tit. 31, § 14 ("When a law is clear and free from all

ambiguity, the letter of the same shall not be disregarded, under

the pretext of fulfilling the spirit thereof.").

B. Immunity

Given that Law 150's retroactivity provision plainly

applies to the present case, we are obligated to apply it, as the

district court did below. And, under that law, the physicians are

immune from Kenyon's malpractice claim. Specifically, when the

injury occurred, the physicians were all working as ER doctors.

Thus, under Law 150, they may not be "included as defendants in a

civil action" for "professional malpractice" or "negligence"

because they are "healthcare professional[s]" who were "act[ing]

in the compliance with [their] duties and functions" "in

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the . . . emergency rooms" of the "San Antonio Hospital of

Mayagüez." P.R. Laws Ann. tit. 26, § 4105.6

Consequently, we read the 2013 amendments to Article

41.050 as immunizing the physicians from this suit, and therefore,

as foreclosing the present action.

IV. Constitutional and Puerto Rico Civil Code Issues

Kenyon further contends that retroactive application of

Article 41.050 (1) violates § 3 of the Puerto Rico Civil Code, and

(2) is unconstitutional as applied to this case under the due

process clauses of both the U.S. and Commonwealth of Puerto Rico

Constitutions. As a preliminary matter, we note that Kenyon raised

the argument with respect to the federal Constitution only in

connection with the 2017 amendments, and not in connection with

the 2013 amendments. However, the 2017 amendments did not

6Law 150 immunizes a group of healthcare professionals from
a malpractice claim if they meet certain listed professional
criteria and work at a qualified facility, which includes San
Antonio Hospital. As explained, the physicians fall within that
group of professionals.
Law 150 also contains another section that identifies a
subgroup of healthcare professionals -- "intensive care
professionals and pediatricians of the neonatal intensive care
units; and the obstetrician/gynecologists and surgeons of the San
Antonio Hospital" -- who are subject to certain liability limits
set forth in Section 3077 of Title 32. However, there is no
suggestion in the summary judgment record that any of the
physicians involved in this case were surgeons or
obstetrician/gynecologists or did any work in the neonatal
intensive care unit. Thus, the part of Law 150 that establishes
a liability limit for such healthcare professionals is not relevant
to the present case.

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meaningfully change the text of the retroactivity clause. If the

2017 amendments infringe on Kenyon's right to due process, then it

follows that the 2013 amendments, which we have applied in this

case, would do so as well.

A. Procedural Barriers to Review

We first consider whether we may reach the merits of

Kenyon's due process arguments as to the 2013 amendments.

Federal Rule of Civil Procedure 5.1 requires a "party

that files a pleading, written motion, or other paper drawing into

question the constitutionality of a federal or state statute" to

"file a notice of constitutional question" with the court and serve

that notice to the attorney general of the state. The physicians

and HSA point out that Kenyon never filed a Rule 5.1 notice or

served the applicable notice on the Attorney General of Puerto

Rico when he filed his opposition to summary judgment contending

that the 2013 amendments were invalid under the Commonwealth

Constitution.7 Kenyon did file and serve such a notice on the

Attorney General upon challenging the 2017 amendments under the

U.S. and Commonwealth Constitutions, although HSA contends that

7 We note that it is not clear that Kenyon was required to
file a notice under Rule 5.1 as to his challenges based on the
Commonwealth Constitution. See Gibson v. Am. Cyanamid Co., 760
F.3d 600, 608 n.4 (7th Cir. 2014) ("Because [plaintiff] challenges
[a statute] under Wisconsin's Constitution, not the federal
constitution, there is no need to certify the challenge to the
Wisconsin Attorney General under 28 U.S.C. § 2403(b) or Federal
Rule of Appellate Procedure 44(b).").

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that notice was untimely.8

The issue is thus whether it is appropriate for us to

analyze the constitutionality of retroactive application of

Article 41.050 under the 2013 amendments, where Rule 5.1 notice

was provided as to the 2017 amendments (even if it was untimely,

as HSA contends), but not the 2013 amendments. Rule 5.1 makes

clear that any alleged "failure to serve the notice . . . does not

forfeit a constitutional claim or defense that is otherwise timely

asserted." Fed. R. Civ. P. 5.1; see also Puffer's Hardware, Inc.

v. Donovan, 742 F.2d 12, 18 (1st Cir. 1984). Where the attorney

general has not received a notice that was required under Rule

5.1, "the appellate court has discretion to respond in different

ways, depending on the nature of the arguments and the progress of

the litigation." Oklahoma ex. rel Edmondson v. Pope, 516 F.3d

1214, 1216 (10th Cir. 2008) (remanding to the district court

because Rule 5.1 notice had not been provided, but canvassing other

cases that had provided notice to the attorney general of the

8 Kenyon filed that Rule 5.1 notice with the district court
on September 7, 2017. In that notice, he explained that he was
challenging whether "Law 99 [o]f August 13, 2017[,] violates the
Due Process Clauses of the Fourteenth Amendment of the United
States Constitution[] and Article II, § 7 of the Puerto Rico
Constitution" and noted that "a copy of th[e] notice" was being
served on the "Attorney General of Puerto Rico." Rule 5.1(c)
provides that the attorney general "may intervene within 60 days
after the notice is filed" or within a longer time period under
circumstances not relevant here. The Attorney General did not
intervene within 60 days.

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pending appeal instead). Here, as noted, the issues are the same

as to the constitutionality of the retroactivity clause whether

considering the 2013 or 2017 amendments, because the 2017

amendments did not meaningfully change the retroactivity clause.

Thus, we conclude that there is no need to provide any further

notice to the Attorney General.

More concerning for our purposes is HSA's contention

that Kenyon waived his argument that the retroactivity clause of

Article 41.050 violated the federal Constitution because he failed

to properly raise it before the district court. Though Kenyon

argued that the 2013 amendments were invalid under the Commonwealth

Constitution in his opposition to summary judgment, he did not

present the federal constitutional question at the summary

judgment stage. Instead, Kenyon first challenged the 2017

amendments under the federal Constitution in his opposition to

HSA's motion to take judicial notice of the 2017 amendments, which

was filed in response to Kenyon's request for reconsideration.

However, the federal constitutional claim was certainly available

to Kenyon at the summary judgment stage and should have been

presented at that juncture. We therefore agree that Kenyon's

federal constitutional arguments are waived, and we need not

determine their merits.

Nevertheless, Kenyon preserved his contentions as to the

Due Process Clause of the Commonwealth Constitution. And the

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Puerto Rico cases that the parties cite suggest that the Puerto

Rico Supreme Court determines issues under that clause by reference

to federal standards. See Torres v. Castillo, 11 P.R. Offic.

Trans. 1001, 1012-13 (1981); Alicea v. Cordova, 17 P.R. Offic.

Trans. 811, 831-32 (1986); Defendini Collazo v. E.L.A., Cotto, 134

P.R. Dec. 28 (1993). In addition, Kenyon appears to contend that

our due process analysis should be essentially the same under the

U.S. and Commonwealth Constitutions, without noting specific

differences. Therefore, as part of our analysis of his preserved

claim, it is necessary to review caselaw interpreting the federal

Due Process Clause. We emphasize, however, that we do so not to

determine the merits of his claim under the U.S. Constitution --

which, again, he has waived -- but only because such standards are

relevant to his contentions under the equivalent clause of the

Commonwealth Constitution.9

Kenyon also argues that the retroactivity provision is void
9

under Article III § 17 of the Puerto Rico Constitution, which
mandates that "[e]very bill, except general appropriations bills,
shall be confined to one subject, which shall be clearly expressed
in its title, and any part of an act whose subject has not been
expressed in the title shall be void." P.R. Const. Art. III, § 17.
The retroactivity clause, Kenyon argues, is void because it is not
expressly referenced in the title. This argument is refuted by
the plain text of the statute: Law 150 was passed "[t]o amend the
first and third paragraph of article 41.050 . . . and to establish
the application of this Act retroactively." Law 150.
Moreover, the title of the 2013 amendments need not
specifically mention retroactive application in order to be valid
under Puerto Rico law. See Cervecería Corona v. Minimum Wage Bd.
of P.R., 98 P.R. Dec. 801, 1970 P.R. Sup. LEXIS 210 (1970) ("In
the case of an amendatory act the prevailing doctrine does not

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 B. Commonwealth Due Process Claim

The United States and Commonwealth Constitutions both

guarantee, in relevant part, that an individual will not be

deprived of liberty or property without due process of law. P.R.

Const. Art. II, § 7; U.S. Const. amend. V, XIV. The federal Due

Process Clause has both "substantive and procedural components."

Pagan v. Calderon, 448 F.3d 16, 32 (1st Cir. 2006). Kenyon appears

to contend that retroactive application of Article 41.050 violates

his right to substantive due process, which the Commonwealth's Due

Process Clause also guarantees. See Defendini Collazo, 134 P.R.

Dec. 28.10

The federal Constitution's guarantee of substantive due

require that the title express the specific changes sought by
virtue of the proposed amendment, provided the subject is not
remote from or extraneous to that of the original act.").
10At times, Kenyon seems to contend that he was also deprived
of procedural due process under the Commonwealth Constitution.
Procedural due process requires the state to provide "fair
procedure[s]" before depriving an individual of protected liberty
or property interests. Amsden v. Moran, 904 F.2d 748, 753 (1st
Cir. 1990) (quoting Zinermon v. Burch, 494 U.S. 113, 126 (1990)).
However, Kenyon does not specify the procedures he was deprived of
nor the procedures that should have been followed. Therefore, any
procedural due process claim is likely waived for lack of
development. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990).
Moreover, and in any event, his contentions are based on the
same principles whether construed as a claim for procedural or
substantive due process -- he contends that he is entitled to such
due process because he has a vested property right in his cause of
action, and because he has a fundamental right to access the
courts. Therefore, the nature of his claim is not dispositive.

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process protects individuals against state action that

transgresses "basic and fundamental principle[s]." Amsden v.

Moran, 904 F.2d 748, 754 (1st Cir. 1990); see also Pagan, 448 F.3d

at 32. Thus, generally speaking, under the federal Due Process

Clause, a state action will be reviewed for strict scrutiny only

where it interferes with a fundamental right; otherwise, it is

reviewed under the more lenient rational basis standard. Medeiros

v. Vincent, 431 F.3d 25, 32 (1st Cir. 2005), abrogated on other

grounds, Bond v. United States, 564 U.S. 211 (2011). The Supreme

Court of Puerto Rico takes a similar approach in reviewing

substantive due process claims under the Commonwealth

Constitution. For example, that court has stated that something

more than the rational basis test will apply if a facially valid

law "[is] detrimental to and violate[s] the fundamental rights of

the individual." See Torres, 11 P.R. Offic. Trans. at 1012-13.

And the court has also made clear that "the Legislature has ample

authority to set economic regulations that promote the general

welfare," and has reviewed such regulations under the rational

basis test. Defendini Collazo, 134 P.R. Dec. 28 (noting that a

statute would not violate substantive due process under the

Commonwealth's Constitution "provided it has a real and

substantial relation to the State interest pursued and is not

unreasonable, arbitrary or capricious" (citing Nebbia v. New York,

291 U.S. 502, 525 (1934))).

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 Here, Kenyon contends that retroactive application of

Article 41.050 to immunize the physicians from suit for conduct

that took place before the statute was passed, and before June 27,

2011, deprived him of a vested property right in his cause of

action and of his fundamental right to access the courts, which

violated his right to due process under the Commonwealth

Constitution. Nevertheless, he has not pointed to any cases under

federal or Puerto Rico law establishing that he was deprived of

such a vested or fundamental right.

In the federal context, there is caselaw indicating that

retroactive laws that overturn vested property rights are subject

to "special scrutiny." See Adams Nursing Home of Williamstown,

Inc. v. Matthews, 548 F.2d 1077, 1080 (1st Cir. 1977) (canvassing

cases finding retrospective acts invalid because they overturned

"vested property rights" and noting that "laws that unsettle

settled rights can be harsh, and [] deserve [] special scrutiny"

(emphasis added)); Canisius College v. United States, 799 F.2d 18,

25 (2d Cir. 1986) (noting that where such laws overturn "vested

rights" they are likely to be arbitrary and irrational). But in

Hammond v. United States, we upheld a federal statute under the

federal Due Process Clause notwithstanding that it retroactively

foreclosed an ongoing tort action based on "common-law and state

statutory causes of action" in state court because we reasoned

that "rights in tort do not vest until there is a final,

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unreviewable judgment." 786 F.2d 8, 11-12 (1st Cir. 1986)

(emphasis added). We explained that when rights have "'vested' in

real property, a contract, or in a fixed sum, they [are] said to

stand independent of the statute that create[s] them and [can]not

be abridged by [a] subsequent statute," and contrasted the

plaintiff's cause of action because it was not part of a final,

unreviewable judgment. Id. at 11, 12. Like the plaintiff in

Hammond, here, Kenyon did not have a final, unreviewable judgment

when the district court retroactively applied Law 150 to Kenyon's

suit.

Kenyon also contends that retroactive application of Law

150 deprives him of his fundamental right of access to the courts,

and must therefore meet strict scrutiny. But we rejected that

contention in Hammond, reasoning that retroactive application of

a statute to foreclose an ongoing tort action did not involve

"someone burdening or blocking [a] plaintiff's right of access to

the courts to seek enforcement of the law." Id. at 13. We further

clarified that "[t]here is no fundamental right to particular

state-law tort claims." Id.

Thus, under the federal Due Process Clause -- which the

Puerto Rico cases cited by the parties suggest is similar to the

Commonwealth's Due Process Clause, and which Kenyon contends is

"much" the "same" as that clause -- retroactive application of a

statute to foreclose an ongoing tort action in the absence of a

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final, unreviewable judgment does not implicate a vested property

right or a fundamental right.

Although the parties have not identified any Puerto Rico

Supreme Court cases analyzing under the Commonwealth's Due Process

Clause the specific issue raised by this case, the cases of that

court that they cite suggest that Commonwealth and federal

standards on these issues are consistent. Specifically, in

Defendini, the Puerto Rico Supreme Court found that a law that

establishes a ceiling on the Commonwealth's damages in actions for

negligence does not violate the Commonwealth's Due Process Clause.

134 P.R. Dec. 28. The retroactive application of that law was not

at issue, and the point at which a cause of action "vests" was not

discussed. See id. But the court nevertheless reasoned that the

right to bring an action for damages was a "proprietary right,"

and thus, the "only" question was whether "the limits [imposed by

the law] [were] clearly arbitrary." Id.

The court also clarified that Puerto Rico had "not

recognized a fundamental right to bring a civil action," and

expressly rejected a contention, which Kenyon also makes here,

that Alicea and Torres hold otherwise. Defendini Collazo, 134

P.R. Dec. 28 (emphasis added) (noting that Alicea's

"pronouncements" that "the right to commence a civil action is a

fundamental right" that will have to withstand "strict judicial

scrutiny" did "not constitute the opinion of the Court" (quoting

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Alicea, 17 P.R. Offic. Trans. at 826)); Defendini Collazo, 134

P.R. Dec. 28 ("Torres does not recognize the existence of a

fundamental right to file a civil suit."); see also In re San Juan

Dupont Plaza Hotel Fire Litig., 687 F. Supp. 716, 733–34 (D.P.R.

1988) ("In Puerto Rico, the right to sue, or rather the right of

access to the courts, though a recognized property right, is not

a fundamental right.") (internal quotations and citations

omitted).11

Kenyon analogizes his situation to that of the

plaintiffs in Alicea. There, the Puerto Rico Supreme Court held

that a strict, two-year statute of limitations for actions for

medical malpractice, including those involving latent injuries,

was unconstitutional under the Commonwealth's Due Process Clause

because the provision at issue could "have the effect of requiring

the plaintiffs to comply with the impossible: to sue before they

11Our opinion in Nieves v. University of Puerto Rico is also
instructive. 7 F.3d 270 (1st Cir. 1993). There, we rejected any
interpretation of Alicea as establishing a fundamental right to
commence a civil action. Nieves, 7 F.3d at 277.
Nieves's claim was that "strict scrutiny" was required
because of the deprivation of a "fundamental right," "without
regard to whether the challenged statutory classification targets
a suspect class." Id. Although Nieves's claim -- that "the right
to recover full compensatory damages," was fundamental -- was more
similar to the claim asserted in Defendini than the asserted right
here, we broadly rejected the notion that there was a fundamental
right to maintain a civil suit for full compensatory damages under
the Commonwealth Constitution. Nieves, 7 F.3d at 273-74, 277
(emphasis in original) (internal quotations omitted).

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know about their cause of action." Alicea, 17 P.R. Offic. Trans.

at 833.12 The statute of limitations in Alicea did not simply

dictate the timeline by which a plaintiff may sue but "operate[d]

immediately to eliminate the existing remedy or within a term so

short that the aggrieved party ha[d] no reasonable opportunity to

exercise the action." Id. at 832. Here, by contrast, Kenyon had

a reasonable opportunity to sue before June 27, 2011, because

C.A.K.'s treatment took place between August 14, 2010, and November

2, 2010; therefore, Alicea is inapposite to the facts of this case.

Thus, in summary, Kenyon has not pointed to any case

under Puerto Rico law establishing that a fundamental right or

vested property right is implicated here. Instead, the relevant

Puerto Rico and federal law, to which the Puerto Rico Supreme Court

has looked for guidance in interpreting the Commonwealth's Due

Process Clause, suggest that no such rights are implicated.13

Accordingly, retroactive application of the law to Kenyon's case

is subject only to rational basis review, and will be upheld unless

it is "wholly arbitrary and irrational in purpose and effect."

Hammond, 786 F.2d at 13; see also Defendini Collazo, 134 P.R. Dec.

12As noted, several parts of the opinion of the court did not
command a majority, but its holding as to that particular issue
did. See id. at 835.
13We note as well that we rely on the cases provided by the
parties. They are responsible for updating the court on any legal
developments that transpire after we hear an appeal, and they have
not brought any intervening law to our attention.

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28.

The statute here is neither arbitrary nor irrational.

Both the Puerto Rico Supreme Court and the United States Supreme

Court have acknowledged that a state has a rational interest in

protecting the public coffers and ensuring that hospitals are able

to continue serving vulnerable populations. See, e.g., Defendini

Collazo, 134 P.R. Dec. 28 (concluding that there is a legitimate

interest in protecting the Commonwealth's coffers). Kenyon has

not shown that the retroactive grant of immunity is so unrelated

to the legislature's goal of protecting the healthcare system and

ensuring continued access to medical care as to be arbitrary and

irrational. See Law 278, Statement of Purpose (discussing the

purpose of the grant of immunity).

Accordingly, for all of those reasons, we conclude that

Article 41.050 does not violate the Due Process Clause of the

Commonwealth Constitution.

C. The Puerto Rico Civil Code

Kenyon also urges us to conclude that retroactive

application of Article 41.050 conflicts with section 3 of the

Puerto Rico Civil Code, which provides that "[l]aws shall not have

retroactive effect unless they expressly so decree. In no case

shall the retroactive effect of a law operate to the prejudice of

rights acquired under previous legislative action." P.R. Laws

Ann. tit. 31, § 3. We reject this argument.

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 In support of this theory, Kenyon cites only one case:

Vélez Reboyras v. Srio. de Justicia, 15 P.R. Offic. Trans.

700 (1984). But this case explains that there is in fact no

"absolute" "principle" of "non-retroactivity." Id. at 712; see

also Domínguez Castro v. E.L.A., 178 P.R. Dec. 1 (2010). Instead,

it stresses that the Puerto Rico Supreme Court will look to "'the

substantiality of the public interest promoted by the statute and

the dimension of the impairment caused by its retroactive

application' and that '[t]he greater the social evil sought to be

remedied by the statute, the greater the public interest involved,

and, therefore, the more justification for its retroactive

application.'" Vélez Reboyras, 15 P.R. Offic. Trans. at 712

(quoting Warner Lambert Co. v. Tribunal Superior, 101 P.R. Dec.

378 (1973)).

Kenyon, in turn, argues that "[n]o public interest . . .

could . . . be earnestly advocated, with respect to granting this

benefit retroactively." But as we discussed above, there is a

rational interest in protecting the public coffers, which in turn

enables the continued operation of hospitals. See Defendini

Collazo, 134 P.R. Dec. 28.

Vélez Reboyras does suggest that there is a backstop to

flexible application of the non-retroactivity principle:

retroactivity cannot extinguish acquired (i.e., vested) rights.

15 P.R. Offic. Trans. at 712; Torres v. Winship, 1940 P.R. Sup.

- 27 -
LEXIS 415 (1940).

But Kenyon gives us no argument at all as to why his

cause of action would be considered acquired or vested for the

purposes of section 3 of the Puerto Rico Civil Code. Instead,

Puerto Rico caselaw suggests that retroactive application of

Article 41.050 would not interfere with an acquired right. As the

Puerto Rico Supreme Court has explained, "the theory of acquired

rights prohibits the retroactive application of a law when

this affects legal relationships existing before the validity of

the new law, which were born on the basis of the previous

legislation." Pérez López et al. v. CFSE, 194 P.R. Dec. 314, 2015

TSPR 165 (2015) (emphasis added). Acquired rights obtain when

"the affected parties rested on the rule of law," and the

"rights . . . entered the patrimony of the subjects involved."

Consejo Titulares v. Williams Hosp., 168 P.R. Dec. 101, 108–09,

2006 TSPR 94 (2006). An example of such an acquired right could

be a pension that has become due. Torres, 56 P.R. Dec. at 700.

Conversely, mere expectations do not create an acquired

right, and an "acquired right cannot be the set of powers that the

previous law allowed citizens to exercise." Consejo Titulares,

168 P.R. Dec. at 108–09. Thus, "not every legal situation that

arises under a previous law represents a proprietary interest that

gives way to the recognition of an acquired right." Pérez López,

194 P.R. Dec. at 324. And "not every proprietary right or interest

- 28 -
is in turn an acquired right" for the purposes of analyzing

compliance with section 3 of the Civil Code. Domínguez Castro,

178 P.R. Dec. at 68.

This caselaw, as well as the law discussed in previous

sections, suggests that retroactive application of Article 41.050

does not infringe on any acquired or vested right. Kenyon's cause

of action in tort was not a legal relationship "born on the basis

of the previous legislation," Pérez López, 194 P.R. Dec. at 324,

nor did he "rest[] on" the prior law in any discernable way.

Consejo Titulares, 168 P.R. Dec. at 108–09. The previous statutory

domain might have created an expectation that he could bring a

tort action, but not all expectations create a vested right. See

Torres, 56 P.R. Dec. at 700 (pension obligations that are not yet

due do not create an acquired right); see, e.g., Hammond, 786 F.2d

at 11 (tort cause of action not vested right until there is a

final, unreviewable judgment). And again, Kenyon has not pointed

us to caselaw suggesting otherwise.

Consequently, the decisions of the Puerto Rico Supreme

Court indicate that retroactive application of Article 41.050

would not conflict with section 3 of the Puerto Rico Civil Code.

Therefore, Kenyon's argument on this issue fails.

V. Motion to Reconsider

Finally, while this appeal was pending, Kenyon sought

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reconsideration14 in the district court in light of a district

court's decision in Oquendo-Lorenzo, 256 F. Supp. 3d 103.

Specifically, Kenyon gestured to the district court in Oquendo-

Lorenzo's holding as to HSA's liability and physician liability,

arguing this decision represented an "intervening change in the

law."

In Oquendo-Lorenzo, the district court addressed a

surgeon specializing in obstetrics-gynecology (Dr. Quiles), who

had admitting privileges at San Antonio Hospital. Oquendo-

Lorenzo, 256 F. Supp. 3d at 117. The district court explained

that applying Article 41.050 to Dr. Quiles was difficult, as he

was both a "health professional . . . [who performed] his

profession . . . in the neonatal and pediatric intensive care

units" at San Antonio Hospital (and therefore was entitled to

immunity from suit per the statute) and a "gynecologist obstetric[]

and surgeon[]" of the hospital (and therefore was entitled only to

a limit of liability per Section 3077). Id. at 118 (quoting P.R.

Laws Ann. tit. 26, § 4105). The district court acknowledged that

this created interpretative difficulties, and ultimately concluded

that Dr. Quiles was subject to suit within the limits established

by Section 3077. Id. at 122. The district court in Oquendo-

Lorenzo also ruled that HSA was not entitled to the liability caps

14The district court construed this as a Rule 60(b) motion.
Fed. R. Civ. P. 60. Kenyon does not contest this characterization.

- 30 -
in Section 3077, P.R. Laws Ann. tit. 32, § 3077. Id. at 117.

Though Kenyon's motion to reconsider was filed after the

notice of appeal, the district court had jurisdiction to consider

it. See Puerto Rico v. SS Zoe Colocotroni, 601 F.3d 39, 41 (1st

Cir. 1979). Our review of the district court's denial of

reconsideration is for abuse of discretion. Daniels v. Agin, 736

F.3d 70, 86 (1st Cir. 2013) ("We review the denial of a Rule 60(b)

motion for abuse of discretion, which amounts to 'de novo review

of strictly legal determinations and deference to the extent that

the denial turns on factual or judgmental determinations.'"

(quoting Capability Grp., Inc. v. Am. Exp. Travel Related Servs.

Co., 658 F.3d 75, 79 (1st Cir. 2011))). As a general rule, "a

motion for reconsideration is . . . normally not a promising

vehicle for revisiting a party's case and rearguing theories

previously advanced and rejected." Palmer v. Champion Mortg., 465

F.3d 24, 30 (1st Cir. 2006). We conclude that the district court

did not abuse its discretion in denying Kenyon's motion for

reconsideration premised on an "intervening change in the law."

The district court correctly concluded that Oquendo-

Lorenzo was not an "intervening change in the law." As the

district court noted, and Kenyon acknowledges, the Oquendo-Lorenzo

district court decision carried only "persuasive," not

precedential, weight. Thus, there was no intervening change in

the law. Given this was the only argument Kenyon raised to support

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his motion for reconsideration, the district court was entitled to

reject this motion.

Even putting that to one side, the district court holding

in Oquendo-Lorenzo is not on point to the facts in this case.

Unlike the physicians here, the physician-defendant in Oquendo-

Lorenzo was a surgeon who specialized in obstetrics-gynecology.

Consequently, the district court's conclusion that the defendant-

physician was not entitled to immunity in Oquendo-Lorenzo was based

on a portion of the text of Article 41.050 that is not implicated

here. Thus, the district court in Oquendo-Lorenzo's ruling as to

Dr. Quiles did not call into question the district court's decision

as to the physicians sued by Kenyon.

Consequently, we will affirm the district court's denial

of the motion for reconsideration.

VI. Conclusion

For the foregoing reasons, we affirm the district

court's judgment and order denying the motion to reconsider.

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