United States Court of Appeals
For the First Circuit
No. 07-2657
FLORENTINO RIVERA, CARMEN DE LEÓN RIVERA,
CONJUGAL PARTNERSHIP RIVERA-DE LEÓN,
Plaintiffs, Appellants,
v.
CENTRO MÉDICO DE TURABO, INC., d/b/a HIMA SAN PABLO CAGUAS,
Defendant, Appellee,
DR. MARCIAL WALKER; JANE DOE; CONJUGAL PARTNERSHIP WALKER-DOE;
DR. LYDIA DÍAZ-BORRÁS; JOHN DOE; CONJUGAL PARTNERSHIP DOE-DÍAZ;
COMPANIES A-Z; JOHN RICHARD POE; PETER MOE,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Lipez, and Howard,
Circuit Judges.
Seth A. Erbe, with whom Jose R. Ortiz-Velez, Pedro F. Soler-
Muñiz, David C. Indiano, Ada Sofia Esteves, and Indiano & Williams,
P.S.C. were on brief, for appellants.
Heidi Rodriguez, with whom Giselle Lopez Soler and Pietrantoni
Mendez & Alvarez LLP were on brief, for appellees.
July 31, 2009
LIPEZ, Circuit Judge. This case requires us to determine
the enforceability of a forum selection clause embedded in informed
consent documents presented to a patient before a medical
procedure. The appellants, Florentino Rivera, his wife Carmen de
León Rivera, and their conjugal partnership, filed suit against the
Centro Médico de Turabo, Inc., which does business as HIMA San
Pablo Caguas ("HIMA" or "the hospital"), in the United States
District Court for the District of Puerto Rico, alleging medical
malpractice. HIMA moved to dismiss the complaint, arguing that,
pursuant to a forum selection clause contained in two preoperative
consent forms signed by Rivera, the Commonwealth Court of First
Instance was the exclusive venue for any claims against the
hospital. The district court granted HIMA's motion to dismiss
based on the forum selection clause. For the reasons set forth
below, we affirm.
I.
A. Factual Background
Since this appeal arises from a dismissal pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure, we "assume
the truth of all well-pleaded facts" in the complaint and "indulge
all reasonable inferences that fit the plaintiff's stated theory of
liability." Centro Médico de Turabo, Inc. v. Feliciano de Melecio,
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406 F.3d 1, 5 (1st Cir. 2005) (quotation marks and citation
omitted).1
On November 9, 2005, Rivera, a 65-year-old male, visited
the office of Dr. Marcial Walker to discuss the results of a test
indicating elevated levels of PSA (Prostate Specific Antigen) in
Rivera's blood. Based on the test results, the doctor scheduled
Rivera for a prostate biopsy. The biopsy, performed on December
12, 2005, revealed a prostatic adenocarcinoma – a tumor in Rivera's
prostate. In an appointment after the biopsy, Dr. Walker
recommended the surgical removal of Rivera's prostate. The
procedure was scheduled for February 21, 2006.
Before the surgery, Rivera was examined by Dr. Lydia Díaz
Borrás to determine whether he should receive medical clearance for
the procedure. Dr. Díaz Borrás noted that the patient suffered
from several medical conditions, including hypertension (high blood
pressure) and hyperlipidemia (elevated levels of lipids in the
blood stream), and that he exhibited several risk factors for
cardiac and pulmonary conditions. Nevertheless, she declared him
to be clinically stable for surgery. On February 16, 2006, Rivera
also passed a pre-anaesthesia screening.
The surgery was performed as scheduled on February 21,
2006. However, due to significant blood loss resulting from a
1
As we discuss below, certain procedural irregularities
distinguish this case from the run-of-the-mill 12(b)(6) dismissal.
Those irregularities do not affect this factual summary.
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hemorrhage during surgery, Rivera required several blood
transfusions. The next day, he developed weakness or paralysis on
one side of his body and was diagnosed with a "stroke in
evolution," i.e., the preliminary stages of a stroke.
Rivera was discharged on February 27 to an extended care
facility, where he remained for five weeks of recovery and
rehabilitation. During this time, he received a course of
antibiotics to treat a postoperative infection that he had
developed at the hospital. After his discharge from the
rehabilitation center, Rivera had a follow-up appointment with Dr.
Walker, who recommended a second operation to remedy some of the
negative effects of the initial procedure. Rivera refused.
Rivera alleges that, as a result of his treatment at
HIMA, he is partially disabled and cannot enjoy life as he did
before the surgery. Despite the aid of a leg brace and a cane, he
requires assistance to walk, as well as to perform daily tasks such
as bathing and eating. When the complaint was filed, Rivera
received physical and occupational therapy multiple times a week
and expected the disability to be permanent. The complaint also
alleges that both Rivera and his wife have endured significant
mental anguish as a result of his medical condition.
B. Procedural History
On February 16, 2007, appellants filed a complaint in
United States District Court for the District of Puerto Rico,
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alleging medical malpractice and breach of the duty of care, and
asserting a right to recover damages under Articles 1802 and 1803
of the Civil Code of Puerto Rico (P.R. Laws Ann. tit. 31, §§ 5141
and 5142).2 The complaint named as defendants the hospital, Drs.
Walker and Díaz Borrás, several "placeholder" defendants
representing unidentified individuals who may have contributed to
Rivera's injuries, and unidentified insurance companies from whom
the hospital had purchased malpractice coverage; the placeholder
defendants were to be identified through discovery.
The complaint alleged that Rivera had not been informed
about many of the less radical alternatives to prostate removal or
about the risks and benefits of each treatment option, and
therefore that he never gave his informed consent to the operation.
Rivera also accused the hospital and the doctors of negligence in
the selection and execution of Rivera's course of treatment,
including the preoperative evaluations, which the complaint
characterized as "substandard." In sum, Rivera claimed that the
defendants were jointly and severally liable both for the treatment
expenses arising from his postoperative complications and for
2
Section 5141 provides generally that "[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." Section
5142 embodies the principle of respondeat superior, and provides,
inter alia, that "[t]he obligation imposed by § 5141 of this title
is demandable, not only for personal acts and omissions, but also
for those of the persons for whom they should be responsible."
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damages sufficient to compensate him (and his wife) for their
physical and mental suffering.
The hospital filed a motion to dismiss based on a forum
selection clause contained in two different consent forms that
Rivera had signed prior to surgery. On February 16, 2006, five
days before the operation, Rivera signed a form entitled "Consent
to Administer Anesthesia and Conscious Sedation." On February 26,
2006, the day of the procedure itself, he signed an additional
"Consent to Surgery" form. Both documents contained the following
identical clause: "In the event that by act or omission I consider
that physical, emotional or economic damages have been caused to
me, I expressly agree to submit to the Jurisdiction of the Court of
First Instance of the Commonwealth of Puerto Rico, for any possible
claim." On both forms, this clause was in boldface type and
surrounded by a box that set it apart from the rest of the text.
Each document further required that Rivera specifically place his
initials next to the forum selection clause and also that he
separately sign under a certification that: "this consent has been
explained to me and to my entire satisfaction and that I understand
the content of this form, that I have read and I have been given a
copy of the same, thus, I accept its terms as patient . . . ."
In its motion to dismiss, HIMA argued that, pursuant to
the forum selection clause, the Commonwealth Court of First
Instance was the exclusive venue for Rivera's claims against the
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hospital. In reply, Rivera argued that the consent forms should
not be considered freely negotiated contracts; that, as a general
matter, forum selection clauses should not be enforced in medical
malpractice cases; and, in the alternative, that at least Rivera's
wife, as a non-signatory, should not be bound by the forum
selection clause in the consent form. The district court granted
the motion to dismiss. Rivera appeals.
II.
In this circuit, we treat a motion to dismiss based on a
forum selection clause as a motion alleging the failure to state a
claim for which relief can be granted under Rule 12(b)(6). Silva
v. Encyclopedia Britannica, Inc., 239 F.3d 385, 387 & n.3 (1st Cir.
2001); compare Lipcon v. Underwriters at Lloyd's, London, 148 F.3d
1285, 1289-90 (11th Cir. 1998) (describing the circuits' varying
approaches to motions to dismiss on the basis of forum selection
clauses and concluding that such motions are most properly brought
under Rule 12(b)(3)). We review the grant of a motion to dismiss
for failure to state a claim de novo. Vernet v. Serrano-Torres,
566 F.3d 254, 258 (1st Cir. 2009). In such cases, the district
court must "accept as true the well-pleaded factual allegations of
the complaint, draw all reasonable inferences therefrom in the
plaintiff's favor, and determine whether the complaint, so read,
limns facts sufficient to justify recovery on any cognizable
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theory." LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508
(1st Cir. 1998).
The fact that a motion to dismiss on the basis of a forum
selection clause is treated as a 12(b)(6) motion has certain
consequences for the materials that a district court may
appropriately consider when ruling on such a motion. "Under Rule
12(b)(6), the district court may properly consider only facts and
documents that are part of or incorporated into the complaint; if
matters outside the pleadings are considered, the motion must be
decided under the more stringent standards applicable to a Rule 56
motion for summary judgment." Trans-Spec Truck Serv., Inc. v.
Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008); see also Fed.
R. Civ. P. 12(d) ("If, on a motion under Rule 12(b)(6) . . .,
matters outside the pleadings are presented to and not excluded by
the court, the motion must be treated as one for summary judgment
under Rule 56."). We have recognized an exception to this rule
"for documents the authenticity of which are not disputed by the
parties; for official public records; for documents central to
plaintiffs' claim; or for documents sufficiently referred to in the
complaint," which courts may properly consider on 12(b)(6) motions.
Alternative Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267
F.3d 30, 33 (1st Cir. 2001) (quotation marks and citation omitted).
If, however, the supplemental materials submitted to the district
court fall outside this narrow class of documents, and the court
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chooses to consider them using Rule 12(d)'s conversion procedure,
"[a]ll parties must be given a reasonable opportunity to present
all the material that is pertinent to the motion." Fed. R. Civ. P.
12(d).
Here, appellants' original complaint did not mention the
forum selection clause, nor did it include copies of the consent
forms as an exhibit to the complaint. Instead, the consent forms
containing the forum selection clause were first brought to the
district court's attention on the hospital's motion to dismiss the
complaint. In their opposition to the motion, appellants did not
challenge the authenticity of the documents, but instead
introduced allegations that Rivera's consent to the forum selection
clause was obtained by fraud or overreaching. These allegations
were supported by affidavits from Mr. and Mrs. Rivera.
Additionally, appellants argued that the court should treat the
hospital's motion as one for summary judgment and allow appellants
to conduct further discovery regarding the forum selection clause.
The following week, appellants commendably sought leave
to file an amended complaint that would, among other things,
"supplement the allegations [in the complaint] concerning lack of
informed consent" and include the affidavits from Rivera and his
wife, "so that [the] averments may be considered pleadings in the
true sense of the word." It was not until months later, in its
decision granting the motion to dismiss, that the district court
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also "abstain[ed] from deciding" on plaintiffs' pending motion to
amend. Appellants do not now challenge this disposition -- indeed,
it is unclear whether the decision to abstain would even be
appealable as an interlocutory order.
However, in spite of the district court's disposition of
appellants' request to amend their pleadings and an explicit
statement that it would consider only the factual summary in the
plaintiffs' original complaint and the two consent forms
themselves, the court's actions belied its statements. In fact,
the court expressly considered the factual allegations of
overreaching found in appellants' amended complaint and their
opposition to the motion to dismiss. By considering appellants'
factual allegations, the court effectively converted the hospital's
motion to dismiss into a motion for summary judgment. On appeal,
neither side objects to the court's consideration of factual
allegations beyond the complaint or to the fact that the parties
did not receive notice, pursuant to Rule 12(d), that it intended to
do so. Appellants continue to press the same factual allegations
on appeal. Accordingly, while we do not endorse the district
court's treatment of the motion to dismiss (i.e., its sub silentio
conversion into a motion for summary judgment), we accept it for
the purposes of this appeal. We are particularly comfortable doing
so in this instance because, as we discuss below, even accepting
the allegations in the affidavits as true, they would not suffice
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to prove the kind of fraud or overreaching required to render the
forum selection clause unenforceable.3 See, e.g., Silva, 239 F.3d
at 388 ("[W]e are not bound by the label below, and agree that the
case should have been dismissed.") (quotation marks and citation
omitted).
III.
Although this is a suit based on diversity, we need not
reach the unsettled issue of whether "forum selection clauses are
to be treated as substantive or procedural for Erie purposes."
Lambert v. Kysar, 983 F.2d 1110, 1116 & n.10 (1st Cir. 1993). This
is because "there is no conflict between federal common law and
Puerto Rico law regarding the enforceability of forum-selection
clauses." Silva, 239 F.3d at 387 n.1; see also id. (noting that
the Puerto Rico Supreme Court has adopted federal jurisprudence
regarding the general enforceability of forum selection clauses).
We therefore apply federal common law.
3
Relatedly, appellants argue that the district court erred by
failing to allow them to conduct additional discovery on the
circumstances surrounding the inclusion of the forum selection
clause in the consent documents. Even interpreting the district
court's actions as a sua sponte conversion of the 12(b)(6) motion
into a motion for summary judgment, we find that it was not an
abuse of discretion for the district court to conclude that
additional discovery was unnecessary because we find that none of
appellants' allegations, even if substantiated, would render the
forum selection clause unenforceable. Cf. Adorno v. Crowley Towing
and Transp. Co., 443 F.3d 122, 127-8 (1st Cir. 2006) (noting that,
in the Fed. R. Civ. P. 56(f) context, a motion for additional
discovery must establish that the facts sought would influence the
outcome of the motion for summary judgment).
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Under federal law, the threshold question in interpreting
a forum selection clause is whether the clause at issue is
permissive or mandatory. "Permissive forum selection clauses,
often described as 'consent to jurisdiction' clauses, authorize
jurisdiction and venue in a designated forum, but do not prohibit
litigation elsewhere . . . In contrast, mandatory forum selection
clauses contain clear language indicating that jurisdiction and
venue are appropriate exclusively in the designated forum." 14D
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 3803.1 (3d ed. 1998). Rivera argues that
the clause in HIMA's consent forms was permissive; that it was
intended only to affirmatively confer jurisdiction upon the
Commonwealth Court of First Instance, and should not be interpreted
to limit the jurisdiction of federal district courts. We reject
that assertion.4
In Redondo Constr. Corp. v. Banco Exterior de España,
S.A., 11 F.3d 3 (1st Cir. 1993), we considered language providing
that "each [party] hereby expressly submits to jurisdiction of all
Federal and State Courts located in the State of Florida." Id. at
5 (emphasis omitted). We explained that "[a]ffirmatively
conferring Florida jurisdiction by consent does not negatively
exclude any other proper jurisdiction." Id. at 6. Similarly, in
4
HIMA argues that Rivera waived this permissive/mandatory
argument below. We disagree.
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Autoridad de Energía Eléctrica de Puerto Rico v. Ericsson, Inc.,
201 F.3d 15 (1st Cir. 2000), the clause at issue stated: "This
contract will be governed and interpreted pursuant to the Laws of
the Commonwealth of Puerto Rico and the parties agree to submit to
the jurisdiction of the courts of the Commonwealth of Puerto Rico."
Id. at 18 (emphasis added). Citing Redondo, we again concluded
that the contractual language was merely an affirmative conferral
of jurisdiction upon the Commonwealth courts, particularly in light
of the fact that Ericsson, which was not the originator of the
provision, was incorporated and had its principal place of business
outside of Puerto Rico. Id. Accordingly, it made sense that the
drafter of the contract and eventual plaintiff, the Power Authority
of Puerto Rico, would require Ericsson to consent to the
jurisdiction of the Puerto Rico courts in the event of any dispute,
thereby obviating the need for any personal jurisdiction analysis.
Id. at 19.
Certainly, the forum selection clause in HIMA's consent
form shares the "agree to submit" language with the two cases
invoked by appellants. However, "words are not viewed in isolation
within a contract." McAdams v. Mass. Mut. Life Ins. Co., 391 F.3d
287, 298 (1st Cir. 2004); see also Smart v. Gillette Co. Long-Term
Disability Plan, 70 F.3d 173, 179 (1st Cir. 1995) (stating that
"[a]ccepted canons of construction forbid the balkanization of
contracts for interpretive purposes" (citing Fashion House, Inc. v.
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K mart Corp., 892 F.2d 1076, 1084 (1st Cir. 1989))). Moreover,
there is no "general rule for forum-selection clauses[;]" rather,
we "base[] our conclusion on the specific language of the contract
at issue."5 Silva, 239 F.3d at 388. Here, unlike in Redondo or
Ericsson, the "expressly agree to submit" language is preceded and
informed by a qualifying phrase: "In the event that by act or
omission I consider that physical, emotional or economic damages
have been caused to me, I expressly agree to submit . . . ."
(emphasis added). That is, the consent form required Rivera to
assert any causes of action that he may have against the hospital
in the Commonwealth courts. In contrast, by assenting to the
clauses in Redondo and Ericsson, both of which lacked a similar
introductory phrase, the signatories consented to the exercise of
jurisdiction over themselves as defendants in order to avoid the
personal jurisdiction analysis that would otherwise be required for
out-of-state defendants. This difference in context is
determinative, and we therefore conclude that the forum selection
clause is mandatory.
5
For the same reason, we reject appellant's argument that the
absence of "typical mandatory terms" such as "shall," "exclusive,"
"only," or "must" requires a contrary result. See, e.g., Summit
Packaging Sys., Inc. v. Kenyon & Kenyon, 273 F.3d 9, 13 (1st Cir.
2001) (holding that term in contract providing that parties "will
submit" their dispute to a specified forum implied the exclusion of
all other forums).
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IV.
"Contractual provisions undertaking to provide where a
suit may be brought in disputes arising out of the agreement are
not uncommon." 14D Federal Practice & Procedure § 3803.1. It is
well established that forum selection clauses "are prima facie
valid and should be enforced unless enforcement is shown by the
resisting party to be 'unreasonable' under the circumstances." M/S
Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972); see also
Silva, 239 F.3d at 386. More specifically, a forum selection
clause should be enforced unless the resisting party can show "that
enforcement would be unreasonable and unjust, or that the clause
was invalid for such reasons as fraud or overreaching . . . [or
that] enforcement would contravene a strong public policy of the
forum in which suit is brought, whether declared by statute or by
judicial decision." M/S Bremen, 407 U.S. at 15. We therefore
inquire whether appellants have overcome this strong presumption of
enforceability, considering each of their arguments in turn.
A. Nature of Consent Form/Nature of Action
Appellants claim that forum selection clauses, which are
contractual in nature, cannot be included in medical consent forms
which are designed to comply with physicians' obligations under
Puerto Rico law to obtain informed consent to medical procedures.
They argue that the forum selection clause, thus placed in an
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informed consent form, is unreasonable and contrary to public
policy for that reason alone and therefore should not be enforced.
This argument is too broad. Appellants cite no legal
authority so holding. The placement of the forum selection clause
in a consent form is just one of the factors to be considered in
assessing a claim that enforcement of the clause is unreasonable
under the circumstances. Absent a finding of procedural or
substantive unconscionability, courts have repeatedly enforced
forum selection clauses and arbitration agreements found in consent
forms and similar documents. See, e.g., Wilcox v. Lexington Eye
Inst., No. 53871-3-I, 2005 WL 1964481, at *8 (Wash. Ct. App. Aug.
15, 2005) (enforcing forum selection clause in surgical consent
form); Covenant Health Rehab. of Picayune, L.P. v. Brown, 949 So.
2d 732, 741 (Miss. 2007) (enforcing those provisions of arbitration
agreement contained in nursing home admissions form that were not
found to be unconscionable); see also Wilkerson ex rel. Estate of
Wilkerson v. Nelson, 395 F. Supp. 2d 281, 284 (M.D.N.C. 2005)
(enforcing arbitration clause contained in "a form typically
furnished to and completed by patients while in the waiting room"
that also included statement of financial responsibility and
insurance authorization).
Relatedly, appellants argue that it would be
inappropriate to hold Rivera to the forum selection clause because
their lawsuit was a tort action and not a breach of contract
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action. They state that the district court's reliance on contract
cases like Silva6 is unjustified because "the present case is a
tort case, which carries with it entirely different public policy
considerations - a patient's life, health and well being." That
argument is also unpersuasive. The applicability of a forum
selection clause does not depend on the nature of the underlying
action. One of the classic Supreme Court cases concerning forum
selection clauses, Carnival Cruise Lines, Inc. v. Shute, 499 U.S.
585 (1991), enforced a non-negotiated forum selection provision
contained in the passengers' cruise tickets in a personal injury
action. Courts have routinely followed that example.
Moreover, it is the language of the forum selection
clause itself that determines which claims fall within its scope.
Here, the provision plainly requires that a suit sounding in tort
must be brought according to its terms: "In the event that by act
or omission I consider that physical, emotional or economic damages
have been caused to me, I expressly agree to submit to the
Jurisdiction of the Court of First Instance of the Commonwealth of
Puerto Rico, for any possible claim." Indeed, this language
specifically contemplates its applicability to a malpractice claim.
Accordingly, the nature of the instant action does not preclude
enforcement of the forum selection clause.
6
In Silva, we held that a forum selection clause contained in
an employment contract between a corporation and an independent
contractor was mandatory, valid, and enforceable. 239 F.3d at 386.
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B. The Forum Selection Clause as a Contract of Adhesion
Appellants claim that if it is proper for the consent
forms to include contractual terms, then the forum selection clause
is a contract of adhesion,7 "to be construed against [its] drafter,
and [is] therefore invalid." The mere fact that a contract is one
of adhesion does not render it per se unenforceable, as appellants'
argument would suggest. "[A]dhesion does not imply nullity of a
contract." Nieves v. Intercontinental Life Ins. Co. of P.R., 964
F.2d 60, 63 (1st Cir. 1992) (citation omitted). "If the wording of
the contract is explicit and its language is clear, its terms and
conditions are binding on the parties." Id. (collecting Puerto
Rico cases); see also Bull HN Info. Sys., Inc. v. Hutson, 229 F.3d
321, 331 (1st Cir. 2000) ("[O]f course, even a contract of adhesion
is enforced unless unconscionable or unfair."). Here, because the
import of the forum selection provision is clear, "we do not have
to address whether the . . . doctrine of contra preferentum
applies." Pelletier v. Yellow Transp., Inc., 549 F.3d 578, 582
(1st Cir. 2008); see also Fireman's Fund Ins. Co. v. M.V. DSR Atl.,
131 F.3d 1336, 1339 (9th Cir. 1997) ("As we find no ambiguity in
the forum clause, whether or not [the contract] is a contract of
7
A contract of adhesion is a contract "offered by the
authoring party on a take it or leave it basis rather than being
negotiated between the parties." Northwestern Nat'l Ins. Co. v.
Donovan, 916 F.2d 372, 377 (7th Cir. 1990) (applying federal common
law) (citing Todd S. Rakoff, Contracts of Adhesion: An Essay in
Reconstruction, 96 Harv L. Rev. 1174, 1242-43 (1983)).
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adhesion is of no relevance to the result we reach in this
matter.").
C. Fraud and Overreaching
Appellants argue that "the clause was invalid for such
reasons as fraud or overreaching." M/S Bremen, 407 U.S. at 15. In
support of this claim, they cite the affidavits submitted to the
district court by Rivera and his wife, which were essentially
identical. Florentino Rivera's affidavit stated, in relevant part:
5. It was not explained to me by
anyone at HIMA that by signing the . . .
documents I was renouncing to file a case
before the Federal District Court for the
District of Puerto Rico. Said document does
not state that I am renouncing to file a case
before the Federal District Court for the
District of Puerto Rico. When signing these
forms I thought I was merely authorizing the
anaesthesia and the operation.
6. I do not know the difference
between the Courts of the Commonwealth of
Puerto Rico and the United States District
Court for the District of Puerto Rico.
7. I was not informed, at any time
prior to the signing of these forms that I was
waiving his [sic] right to a trial by jury, as
I thought that the Courts of the Commonwealth
of Puerto Rico have juries in all cases, as is
my common knowledge of the Courts in the
United States.
8. I was not advised that I could
consult this waiver of my rights with an
attorney, nor did I understand that I needed
to do so, because in my mind I was not waiving
any rights, I was simply consenting to the
operation and the anaesthesia.
9. Should an opportunity been [sic]
afforded for me to seek legal advice on the
matter, I would not have signed either of the
forms and would have either demanded that the
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waiver language be removed or gone elsewhere
for the operation.
10. I did not negotiate in any way,
form or manner what is written in those
documents, I was just demanded from the
hospital personnel to sign in order to have
the operation.
1. Fraud
A contract is voidable (and thus unenforceable) if "a
party's manifestation of assent is induced by either a fraudulent
or material misrepresentation by the other party upon which the
recipient is justified in relying." Restatement (Second) of
Contracts, § 164 (1979) (cited in Nash v. Trustees of Boston Univ.,
946 F.2d 960, 967 (1st Cir. 1991)). Rivera's averments do not
describe fraud. They say only that (1) no one verbally explained
the forum selection clause to appellants or told them that they
could consult an attorney; (2) appellants did not attempt to
negotiate the clause in any way, but, "should an opportunity [have]
been afforded" to seek legal counsel, appellants would have either
asked that the clause be removed or sought treatment elsewhere; and
(3) appellants ultimately misunderstood the forms and their
implications. In essence, the affidavit describes the absence of
an explanation about the significance of the forum selection
clause.
This omission, in the circumstances here, cannot serve as
a basis for a misrepresentation claim:
The assertion 'I didn't know what was in the
contract that I signed' is made by litigants
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frequently but almost never successfully.
Absent fraud, a person is deemed to know the
contents of a contract that he or she signs
. . . . Thus whether plaintiffs actually knew
of the arbitration clause in their contracts
is irrelevant; that knowledge is imputed as a
matter of law.
Parler v. KFC Corp., 529 F. Supp. 2d 1009, 1014 (D. Minn. 2008)
That logic applies here as well.
2. Overreaching
"[A]lthough there is some ambiguity as to the precise
boundaries of what constitutes 'overreaching,' a nebulous concept
at best," Haynsworth v. The Corporation, 121 F.3d 956, 965 (5th
Cir. 1997), we understand "overreaching" to refer to one party's
unfair exploitation of its overwhelming bargaining power or
influence over the other party. See, e.g., Silva, 239 F.3d at 389
(inquiring whether one party inappropriately used its bargaining
power to coerce or exploit another); Ginter ex rel. Ballard v.
Belcher, Prendergast, & Laporte, 536 F.3d 439, 449 n.2 (5th Cir.
2008) (Dennis, J., dissenting) (evidencing similar understanding of
overreaching); Outek Carribean Distrib., Inc. v. Echo, Inc., 206 F.
Supp. 2d 263, 267 (D.P.R. 2002) (same). But the mere fact of this
inequality is not enough to render an agreement unenforceable.
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 32 (1991)
(making this observation in context of agreement to arbitrate);
Outek Carribean, 206 F. Supp. 2d at 267. The reference in M/S
Bremen to "undue influence," and "overweening bargaining power,"
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407 U.S. at 12 (emphasis added), is instructive. There must be
some evidence that the party has exploited this bargaining power in
a way that the courts will not tolerate. Outek Carribean, 206 F.
Supp. 2d at 267.
Similarly, contrary to appellants' suggestion,
"overreaching must be based on something more than the mere fact
that the clause was a 'boilerplate' provision printed on the back
of a form contract. As noted in our discussion of the contract of
adhesion claim, it is not the law that one must bargain for each
and every written term of a contract." Lambert, 983 F.2d at 1120
(internal quotation marks and citation omitted). For this reason,
"the fact that a contract was in boilerplate form will not, by
itself, render it unfair or invalid." Outek Carribean, 206 F.
Supp. 2d at 267; see also Carnival Cruise Lines, 499 U.S. at 593
(mere fact that term in contract was not negotiated does not make
it unenforceable); Diaz-Rosado v. Auto-Wax Co., Inc., No. Civ. 04-
2296, 2005 WL 2138794, at *3 (D.P.R. 2005). Put another way,
although appellants emphasize "the relative disparity in the
bargaining positions of the parties . . . , the presumption in
favor of enforcing a forum selection clause applies even if the
clause was not the product of negotiation." 2215 Fifth St.
Assocs., LP v. U-Haul Intern., Inc., 148 F. Supp. 2d 50, 56 (D.D.C.
2001) (quotation marks and citation omitted). Indeed, the district
court of Puerto Rico has enforced a forum selection clause printed
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in English on a cruise ticket where the passenger spoke only
Spanish because "[t]he examination of the circumstances surrounding
the passengers' purchase and retention of the contract, does not
depend upon actual knowledge of the terms in the contract of
passage, but focuses instead on the opportunity for such
knowledge." De La Mota Estrella v. Royal Caribbean Cruise Lines,
Inc., 2006 WL 2601657, at *3 (D.P.R. 2006) (quotation marks and
citation omitted).
There are certainly suggestions of overreaching here.
Rivera's relationship with the hospital grew out of a grave medical
condition. He was likely more focused on that medical condition
than the significance of the documents that he was asked to sign.
He was not thinking about possible lawsuits. This reality in cases
like this one undoubtedly prompted the Puerto Rico Office of the
Patient Advocate, subsequent to the filing of this lawsuit, to
promulgate a regulation prohibiting the practice of including a
forum selection clause in an informed consent document. See Part
IV. D.2, infra.
Nevertheless, despite this regulatory initiative, the
federal common law of overreaching as it presently stands convinces
us that this is not a case where the presumption in favor of
enforcing a forum selection clause is overcome. The language of
the clause was clear. The clause was in bold print and marked off
from the rest of the one-page form by a special box. It was not
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"buried in fine print" or otherwise obscured. The clause required
the patient to signal his assent by placing his initials next to
it. See Wilkerson, 395 F. Supp. 2d at 287 (rejecting plaintiff's
argument that arbitration clause must be separately negotiated and
finding "no claim of ambiguity" where "[p]laintiff signed the form
on the separate signature line before the arbitration clause").
Furthermore, Rivera signaled his assent to the forum
selection clause on two separate occasions, the first of which was
five days before his surgical procedure. During the five days
between his signing of the "Consent to Administer Anesthesia and
Conscious Sedation" form and the "Consent to Surgery" form on the
day of his operation, Rivera had the opportunity to consult an
attorney regarding the forum selection clause, and to consider his
assent to it outside the pressures of a hospital setting. He also
had the option of going to another hospital. Under all of these
circumstances, we reject appellants' argument that the forum
selection clause is unenforceable because the Hospital procured
Rivera's consent by unfairly exploiting its bargaining advantage.
See, e.g., Wilcox, 2005 WL 1964481, at *2-3 (rejecting plaintiff's
argument that forum selection clause should not be enforced due to
"undue influence," and "overweening bargaining power," where she
had the opportunity to read the consent form in advance of her
surgery and again on the day of the procedure, the clause was
-24-
clearly written, and plaintiff's signature appeared directly
underneath the forum selection provision).
D. Public Policy
1. The General Argument
In their opening brief, appellants make the general
argument that to enforce a forum selection clause like the one at
issue here would "go[] against the social order that as a civilized
society, we are obligated to try to maintain." Elaborating on this
contention, they state that in the context of hospital consent
forms, "the application of a rule that a party has a duty to read
the provisions of a form before he signs it and hence is bound by
all provisions therein raises significant public policy concerns."
We disagree. It simply cannot be the case that, absent fraud,
coercion, or overreaching -- which we have determined were absent
from this scenario -- it would violate public policy to hold an
individual to a clearly stated forum selection clause in a one-page
document.
The fact that this document was signed in a health care
context is not, in and of itself, determinative. "It
is . . . significant to note that no court has ever reached the
broad conclusion that public policy precludes the use of private
arbitration agreements in the area of medical services."
Buraczynski v. Eyring, 919 S.W.2d 314, 318 (Tenn. 1996) (citations
omitted). The clause at issue here merely provides an alternative
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judicial forum for appellants' complaint, rather than an entirely
different adjudicative process. It would be a strange outcome
indeed if we found that it violated public policy to require two
parties to litigate their claims in the Commonwealth courts when
their interactions took place exclusively in Puerto Rico and their
relationship was governed by the tort law of the Commonwealth.
2. Regulation 7504
On May 12, 2008, after initial briefing in this case had
been completed, the Office of the Patient's Advocate of Puerto Rico
(OPA) passed Regulation No. 7504, entitled "Regulation for the
Implementation of the Provisions of Public Law Number 194, enacted
August 25, 2000, as amended, 'Puerto Rico Patients' Bill of Rights
and Responsibilities.'"8 Among other things, this regulation
prohibits a health care provider from including in informed consent
documents any "[a]spects about any decision regarding the
possibility of any act of malpractice by a provider" or "legal
clauses foreign to the sphere or field of medicine or
health . . . such as, but not limited to, forum selection clauses."
Article 13, Section 8C of Regulation 7504 of May 12, 2008. The
Regulation specifically provides, as a rationale for this
prohibition, the notion that decisions regarding potential
malpractice suits made by patients while signing informed consent
8
Public Law No. 194 of August 25, 2000, P.R. Laws Ann. tit.
24, §§ 3041-3058.
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documents "may be erroneous in the face of a moment of
vulnerability of the patient, given the health condition of the
patient and dependence on the institution or provider at that given
moment." In their Reply Brief, appellants attempt to use this
regulation to argue that Puerto Rico public policy forbids HIMA's
actions in this case.
This argument cuts both ways. As HIMA points out in its
sur-reply brief, the default position under Article 3 of the Puerto
Rico Code is that laws "shall not have a retroactive effect unless
they expressly so decree." P.R. Laws Ann. tit. 31, § 3. Neither
Regulation 7504 nor its authorizing statute, the Patients' Bill of
Rights, purports to apply retroactively; to the contrary, Article
26 of Regulation 7504 expressly provides for its immediate, but not
retroactive, application. This fact not only forbids appellants
from explicitly relying on Regulation 7504 to render the forum
selection clause illegal, but it further calls into question their
assertion that the public policy of Puerto Rico at the time Rivera
signed the forum selection clause prohibited its inclusion in a
consent form. Certainly, whatever its legal status or binding
effect,9 the Regulation is persuasive evidence of Puerto Rico's
9
HIMA also argues at length in its sur-reply brief that
Regulation 7504 is null and void because it was not properly
adopted in compliance with the requirements of the Puerto Rico
Uniform Administrative Procedures Act, and because OPA did not have
the legal authority to issue such a regulation. HIMA has submitted
an extensive supplemental appendix containing, inter alia, court
documents, briefs, and case law supporting this contention.
-27-
public policy today. Given that the regulation is neither
retroactive nor written in terms indicating an intent to codify
some pre-existing public policy judgment, it does not help
appellants here.
E. Waiver of Right to Jury
Finally, we reject appellants' argument that the forum
selection clause is unenforceable because an individual's waiver of
his right to trial by jury must be unequivocal. As the Supreme
Court held in Minneapolis & St. Louis R.R. Co. v. Bombolis, 241
U.S. 211, 217 (1916), the Seventh Amendment does not apply to civil
proceedings in state court. For this reason, medical malpractice
cases in the Commonwealth Courts of First Instance may be tried
without a jury without offending the Fourteenth Amendment.10 For
this reason, courts have routinely enforced forum selection clauses
consenting to venue in jurisdictions where civil cases are not
tried to juries. See, e.g., Stephen J. Ware, Arbitration Clauses,
Jury-Waiver Clauses and Other Contractual Waivers of Constitutional
Rights, 67 Law & Contemp. Probs. 167, 189-93 & n. 147 (2004)
(collecting cases).
Because we conclude that Regulation 7504 does not apply to this
case, we need not consider its validity.
10
"It bears noting that adoption of [plaintiffs'] Seventh
Amendment argument would render contrary to public policy almost
any forum selection clause providing for resolution in a foreign
forum, as very few countries provide for jury trials in civil
cases." Holland America Line, Inc. v. Wartsila N. Amer., Inc., 485
F.3d 450, 457 n.4 (9th Cir. 2007).
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V.
The Puerto Rico Supreme Court has "repeatedly recognized"
that "individuals who suffer distress because a relative or loved
one is tortiously injured have a cause of action under Article 1802
against the tortfeasor." Mendez-Matos v. Municip. of Guaynabo, 557
F. 3d 36, 57 (1st Cir. 2009) (quotation marks omitted). To succeed
on such a claim, a plaintiff must demonstrate that she has suffered
emotional harm caused by the tortious conduct of the defendant
towards the plaintiff's loved one. Id. "The cause of action is
derivative and depends on the viability of the underlying claim of
the relative or loved one." Id. This is the nature of the claim
asserted by Carmen de León Rivera; the complaint alleged that she
has suffered "by virtue of Mr. Rivera's conditions."
We have stated that "claims involving the same operative
facts" as a claim for breach of contract that is subject to a forum
selection clause should also be litigated in the forum chosen by
the parties. Lambert, 983 F.2d at 1121-22; see also Banco Popular
de Puerto Rico v. Airborne Group PLC, 882 F. Supp. 1213, 1216-17
(D.P.R. 1995) (same). This is the only sensible outcome when the
related cause of action is not only related to, but dependent upon,
the subject cause of action. See, e.g., Perez v. Carnival Cruise
Lines, 993 F. Supp. 39, 42 n.5 (D.P.R. 1998) (dismissing
plaintiff's claims against defendant's insurance companies because
they were derivative of the cause of action subject to the forum
-29-
selection clause). To hold otherwise would be to ignore the
fundamental principle of judicial economy.
VI.
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.
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Rivera v. Centro Medico De Turabo, Inc.
Court: Court of Appeals for the First Circuit
Date filed: 2009-07-31
Citations: 575 F.3d 10
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