Nieves v. University of Puerto Rico

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 92-2214

MARTA NIEVES, IN REPRESENTATION AND ON BEHALF OF
HER MINOR SON ANGEL LUIS HERNANDEZ NIEVES,

Plaintiff, Appellant,

v.

UNIVERSITY OF PUERTO RICO, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]

Before

Selya, Cyr and Boudin,

Circuit Judges.

David Efron with whom Law Offices of David Efron was on brief for

appellant.
Efren T. Irizarry-Colon with whom Elisa M. Figueroa-Baez was on

brief for appellees.

October 18, 1993

CYR, Circuit Judge. Marta Nieves appeals a district
CYR, Circuit Judge.

court order dismissing the medical malpractice action she brought

in behalf of her minor son Angel Luis Hern ndez Nieves against

Angel Gelp , M.D., and Gonz lez Recio, M.D., whom the district

court found immune from suit pursuant to P.R. Laws Ann. tit. 26,

4105. We affirm.

I

BACKGROUND

We recite the facts in the light most favorable to

plaintiff. See Goldman, Antonetti, Ferraiuoli, Axtmayer &

Hertell v. Medfit Int'l, Inc., 982 F.2d 686, 689 (1st Cir. 1993)

(summary judgment). In December 1983, Marta Nieves entered the

Federico Trilla Hospital ("the Hospital"), a privately owned and

operated medical facility in Puerto Rico. Appellee Angel Gelp

and Jose Mel ndez, medical residents under the supervision of the

attending physician, Dr. Ailed Gonz lez Recio, undertook the

delivery of Nieves' son Angel. The three physicians were affili-

ated with the University of Puerto Rico Medical School ("UPR").

Later, Angel was diagnosed with serious physical and mental

impairments, allegedly attributable to asphyxiation during

childbirth.

In December 1990, Nieves, by that time a resident of

Florida, brought this diversity action against, inter alia, UPR,

Drs. Gelp and Gonz lez Recio, and their insurers, alleging

2

professional negligence. See P.R. Laws Ann. tit. 31, 5141-

5142.1 Defendants answered and moved to dismiss the complaint

pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). UPR, noting

its status as an "arm" of the Commonwealth of Puerto Rico,

asserted its Eleventh Amendment immunity from unconsented suit,

see Perez v. Rodriguez Bou, 575 F.2d 21, 25 (1st Cir. 1978), and

its insusceptibility to federal diversity jurisdiction, see Moor

v. County of Alameda, 411 U.S. 693, 717 (1973).

The two appellees, who claimed to be UPR "employees,"

hence physicians employed by the Commonwealth, relied on P.R.

Laws Ann. tit. 26, 4105 (Supp. 1989) as a basis for dismissal:

No health service professional may be includ-
ed as a defendant in a civil suit for damages
due to malpractice caused in performance of
his profession while said health service
professional acts in compliance with his
duties and functions as an employee of the
Commonwealth of Puerto Rico, its dependen-
cies, instrumentalities and municipalities.

Id. Section 4105, a provision of Act No. 74 of 1976, otherwise

known as the Medico-Hospital Professional Liability Insurance Act

(MHPLIA), was enacted to alleviate the severe malpractice insur-

ance crisis facing Puerto Rico. See generally Enr quez P rez v.

Fern ndez, 108 P.R. Dec. 674, 677-80 (1979). The appellee

doctors contend that any patient injured by the professional

negligence of a physician covered by section 4105 has legal

recourse only against the physician's employer, or the Common-

1The original complaint also named Dr. Fern ndez, the
admitting physician, and Dr. Mel ndez, but Nieves dismissed as to
Fern ndez and failed to serve Mel ndez.

3

wealth, which is immune from compensatory damages liability in

excess of $75,000, see P.R. Laws Ann. tit. 32, 3077(a), and, in

any event, not amenable to suit in federal court.2

On January 31, 1992, following eight months of discov-

ery, Nieves filed her opposition to the motion to dismiss.

Nieves contended that section 4105 violated the Equal Protection

Clause and the Due Process Clause of the United States Constitu-

tion and their counterpart clauses in the Puerto Rico Constitu-

tion. Alternatively, Nieves argued that there remained a genuine

issue of material fact with respect to whether Drs. Gelp and

Gonz lez Recio were UPR "employees" entitled to section 4105

immunity, or merely "independent contractors" employed pursuant

to a contract between the Hospital and UPR.

On the same day that Nieves filed her opposition to the

motion to dismiss, the district court dismissed the complaint as

to all defendants.3 Three weeks later, however, the two appel-

lee physicians filed a "reply" to Nieves' opposition, to which

they attached a sworn statement by a UPR dean attesting that Dr.

Gonz lez Recio was an "employee" of the UPR medical school campus

2Insurers are insulated from liability to the same extent
their insured physicians are entitled to 4105 immunity. See

Lind Rodr guez v. Commonwealth of Puerto Rico, 112 P.R. Dec. 67,

68 (1982) ( 4105 immunity not a personal defense, but the
"inexistence of a cause of action," so that "the insurer is not
liable").

3The district court granted Nieves' request for voluntary
dismissal of the complaint against UPR for lack of jurisdiction.
See Fed. R. Civ. P. 41(a)(2). A Rule 12(b)(1) dismissal would

not bar suit against UPR in the Commonwealth courts. See Costel-

lo v. United States, 365 U.S. 265, 285 (1961) (Rule 12(b)(1)

dismissal not disposition on merits).

4

in December 1983, and that Dr. Gelp was a "resident" in the UPR

medical graduate program. On April 7, 1992, Nieves filed a

motion for clarification and reconsideration, expressing concern

that the district court overlooked the arguments presented in the

opposition memorandum she filed the day the court dismissed the

complaint. The district court denied the motion to reconsider.

II

DISCUSSION

A. Constitutionality of Section 4105.

Nieves contends that section 4105 violates the equal

protection and due process clauses of the Puerto Rico Constitu-

tion4 because it (1) discriminates against "poor" people an

inherently "suspect" class under Puerto Rico constitutional law

who have no economic option but to use the low-cost public

health services provided by physicians employed by the Common-

wealth, or (2) divests all patients treated by Commonwealth-

employed physicians of a "fundamental" constitutional right; that

is, the right to recover full compensatory damages for injuries

caused by physician negligence.5 Nieves argues, therefore, that
4Article II, section 7, of the Commonwealth constitution
provides: "The right to life, liberty and enjoyment of property
is recognized as a fundamental right of man. The death penalty
shall not exist. No person shall be deprived of his liberty or
property without due process of law. No person in Puerto Rico
shall be denied equal protection of the laws. . . ." Article
II, section 1, provides: "The dignity of the human being is
inviolable. All men are equal before the law. No discrimination
shall be made on account of race, color, sex, birth, social
origin or condition, or political or religious ideas. Both the
laws and the system of public education shall embody these
principles of essential human equality."

5On appeal, Nieves has abandoned the equal protection and
due process arguments premised on the United States Constitution.

5

her constitutional challenges require us to subject section 4105

to "strict scrutiny." She requests that the district court's

interpretation of Puerto Rico law be set aside, or that these

constitutional questions be certified to the Puerto Rico Supreme

Court. See P.R. Laws Ann. tit. 4, App. I-A, Rule 27(a).6

Under Puerto Rico law, a statutory classification that

"affects fundamental rights of the citizen or is intended against

a suspect classification" is subjected to "strict scrutiny," a

heightened standard under which the Commonwealth must demonstrate

"a compelling state interest which justifies the classification

and that the [classification] necessarily encourages the attain-

ment of that interest." Zachry Int'l of Puerto Rico v. Superior

Court of Puerto Rico, 104 P.R. Dec. 267, 277-78 (1975) (emphasis

added). We have been unable to find a reported Puerto Rico

decision squarely addressing the constitutional questions raised

by Nieves. The cases cited by appellees, and presumably endorsed

by the district court, are distinguishable, either because they

involve statutory classifications which do not implicate the

6Rule 27 of the Supreme Court of Puerto Rico provides, in
pertinent part:

This court may take cognizance of any matter certified
for it by the Supreme Court of the United States, a
Circuit Court of Appeals of the United States, a Dis-
trict Court of the United States, . . . whenever it is
thus requested by any of said courts, if before the
petitioner court there is any judicial matter involving
questions of Puerto Rican law which may determine the
result thereof, and with regard to which, in the opin-
ion of the petitioner court, there are no clear prece-
dents in the case law of this Court.

P.R. Laws. Ann. tit. 4, App. I-A, Rule 27(a).

6

species of "fundamental right" or "suspect class" relied on by

Nieves in the present case, see, e.g., Lind Rodr guez v. Common-

wealth of Puerto Rico, 112 P.R. Dec. 67 (1982); V zquez Negr n v.

Department of Health of Puerto Rico, 109 P.R. Dec. 19 (1979),7

or because they treat with arguments exclusively based on the

United States Constitution, not the Commonwealth constitution,

see, e.g., Rodr guez Diaz v. Sierra Mart nez, 717 F. Supp. 27, 32

(D. P.R. 1989) (presuming that Lind and V zquez also determined

7The district court cited these two decisions in its dis-
missal order. V zquez Negr n reversed a summary judgment for a

defendant-physician, finding that he was not covered by the pre-

1978 version of 4105, which excluded from its protection
physicians who worked only part-time for the Commonwealth.
V zquez Negr n, 109 P.R. Dec. at 23. On appeal, plaintiff

proposed an alternative basis for reversal, arguing that 4105
violated his right to equal protection. Because the court found
4105 inapplicable, however, it expressly refused to reach (or
even to describe) plaintiff's constitutional argument. Id. at

25. On the other hand, the court reached, and rejected, a
distinct equal protection challenge raised by the defendant-

physician, who contended that the pre-1978 version of 4105

discriminated between physicians who worked exclusively for the
Commonwealth and those who worked part-time. Id. at 25-26.

Because part-time physicians are not a "suspect" class, and
immunity from suit is not a "fundamental" constitutional right,
see Alicea v. C rdova Iturregui, 117 P.R. Dec 676, 691 (1986)

(noting that neither Lind nor V zquez dealt with any fundamental

right of physicians), the court upheld the statute on a tradi-
tional "rational basis" analysis. V zquez Negr n, 109 P.R. Dec.

at 25-26. ("[I]t is evident that those physicians whose income
is limited to the salary derived from the State deserve greater
protection.").
In Lind Rodr guez, the court affirmed summary judgment for a

defendant-physician employed part-time by the Commonwealth, based
on a 1978 amendment to 4105 which eliminated its "exclusivity"
limitation. Lind Rodr guez, 112 P.R. Dec. at 68. Despite

plaintiffs' failure to preserve their equal protection claim in
the trial court, the Puerto Rico Supreme Court considered and
rejected the argument on its merits, adding that "[plaintiffs] do
not persuade us to change our decision in V zquez Negr n." Id.

at 68-69. This cryptic language in Lind Rodr guez provides no

guidance, however, as the court did not describe the equal
protection claim it was rejecting.

7

4105's validity under the United States Constitution, undertak-

ing its own independent inquiry of federal case law, and citing

Schweiker v. Wilson, 450 U.S. 221 (1981)); supra note 5.

Absent controlling state-law precedent, a federal court

sitting in diversity has the discretion to certify a state-law

question to the state's highest court. See Lehman Bros. v.

Schein, 416 U.S. 386, 391 (1974). Before this discretionary

decision is even considered, however, we must first undertake our

own prediction of state law for we may conclude that "the course

[the] state court[] would take is reasonably clear." Porter v.

Nutter, 913 F.2d 37, 41 n.4 (1st Cir. 1990); cf. Salve Regina

College v. Russell, 499 U.S. 225, , 111 S. Ct. 1217, , 113

L. Ed. 2d 190, 203 (1991) (court of appeals erred by deferring to

district court interpretation of local state law).

1. Suspect Class Based on "Social Condition".

The equal protection clause of the Puerto Rico Consti-

tution, eclectically patterned on such works as the American

Declaration of the Rights and Duties of Man and the Universal

Declaration of the Rights of Man, is more liberally phrased than

its federal counterpart. See Pruneyard Shopping Ctr. v. Robins,

447 U.S. 74, 81 (1980) (state constitution may afford more, but

not less, protection than Federal Constitution). Specifically,

Article II, section 1, of the Commonwealth constitution bans

discrimination based on "social origin or condition." See supra

note 4. The Puerto Rico Supreme Court has held that any statuto-

ry classification that discriminates on the basis of a "human

8

dignity" standard enumerated in Article II, section 1, is inher-

ently "suspect." See, e.g., L on Rosario v. Torres, 109 P.R.

Dec. 804, 813-14 (1980). Thus, although its precise contours

remain undefined, "poverty" is considered a suspect classifica-

tion under the Commonwealth constitution, triggering "strict

scrutiny" analysis unobtainable under the Equal Protection Clause

of the United States Constitution. Compare, e.g., Molina v.

Urban Renewal and Hous. Corp., 114 P.R. Dec. 295, 312 (1983)

(summarizing history of Puerto Rico's constitutional convention,

noting that "there can be no doubt that the drafters of our

Constitution thought it was basic that there be no discrimination

against any person by reason of the person's poverty . . . and

any classification based on this should be regarded with suspi-

cion and be strictly scrutinized") (Irizarry, J., concurring),

with, e.g., Harris v. McRae, 448 U.S. 297, 323 (1980) ("[P]ov-

erty, standing alone, is not a suspect classification.").

Notwithstanding the unique history, culture and legal

traditions of Puerto Rico, and the absence of a federal lodestar

for a constitutional classification based on poverty, see San

Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973)

(noting that, unlike race or gender, "the class of disadvantaged

'poor' cannot be identified or defined in customary equal protec-

tion terms"), we are confident that Nieves would not prevail on

her claim under existing Commonwealth law. The claim falters on

evidentiary grounds in that the summary judgment record is

plainly deficient to enable a determination that the immunity

9

scheme established by section 4105 operates to discriminate on

the basis of a suspect classification.

Nieves does not contend that section 4105 discriminates

either on its face or as applied against "poor" patients.

Nor is it self-evident that patients utilizing public health

services in Puerto Rico a facially neutral statutory classifi-

cation are all, or even primarily, "poor." In addition, since

section 4105 merely provides a "defense" which may be invoked by

private civil litigants, i.e., public health service doctors,

against any patient allegedly injured as a result of medical

malpractice by a public health service physician, Nieves cannot

demonstrate that the Commonwealth has applied the statute select-

ively against only that subset of public health service patients

who are "poor." Rather, Nieves' only colorable argument is that

section 4105 has the actual effect of discriminating against

"poor" people because a disproportionate share of public health

services in Puerto Rico is administered to the "poor." Given

this position, we think that Nieves' proposed showing would not

establish unlawful discrimination under existing Puerto Rico

judicial authority.

As a preliminary matter, we note that Nieves' claim of

disparate impact rests on a fragile foundation. The data are

presented in the form of a lawyer's assertions,8 rather than in

8Nieves' opposition memorandum, signed by her attorney David
Efron, Esquire, recites the following data:

Puerto Rico's per capita income is $18,705.00 according
to the Planning Board's 1988 Report to the Governor.

10

the form required by Rule 56(e),9 and are much less compelling

and probative than Nieves' counsel claims.10 Nonetheless, we

In that same year, the Medical Assistance Program of
the Puerto Rico Health Department reported that out of
667,753 patients who attended public health facilities
on the island, 387,091 had annual income of less than
$12,501; 57,750 of less than $3,300, 45 less than
$5,800. Only 891 persons had annual income of $12,800
or more. Some 75% of the patients at public institu-
tions are indigent.

9Nieves conceded that the district court correctly treated
defendants' motion to dismiss as a motion for summary judgment.
See Fed. R. Civ. P. 12(b)-(c). Thus, as the nonmoving party,

Nieves was required to "set forth specific facts showing that
there was a genuine issue for trial." Fed. R. Civ. P. 56(e).
Quoting data out of context, Nieves did not attach either the
full or excerpted reports she cited as the source of those data.
See, e.g., Garside v. Osco Drug, Inc., 895 F.2d 46, 49-50 (1st

Cir. 1987). Factual assertions by counsel in motion papers,
memoranda, briefs, or other such "self-serving" documents, are
generally insufficient to establish the existence of a genuine
issue of material fact at summary judgment. See, e.g., Fragoso

v. Lopez, 991 F.2d 878, 887 (1st Cir. 1993); Transurface Carri-

ers, Inc. v. Ford Motor Co., 738 F.2d 42, 46 (1st Cir. 1984); see

generally 10A Charles A. Wright, Arthur R. Miller & Mary K. Kane,

Federal Practice & Procedure 2723, at 63-65 (1983 & Supp.

1993); cf. also Fed. R. Evid. 201(d) (judicial notice of adjudi-

cative facts is required only where proponent supplies court with
necessary information).

10For example, the opposition memorandum states that only
891 out of 667,753 persons treated at public health facilities in
1988 had annual incomes in excess of $12,800, and that Puerto
Rico's "per capita income" that year was $18,705. It does not
specify, however, whether the $18,705 figure is the median or the
average annual income, nor explain the basis for selecting
$12,800 as the "poverty" cut-off figure, nor indicate the per-
centage of the total population of Puerto Rico that falls below
the suggested "poverty" cut-off.
Moreover, the data presented in the memorandum are inconsis-
tent. Although the memorandum asserts that 75% of public health
patients were "indigent," the other figures cited, if taken to be
poverty "lines," would yield indigency rates of either 66%
(444,886 patients of 667,753 below $12,501), or more than 98%
(666,862 out of 667,753 below $12,800). Both the 66% and the 98%
indigency rates assume that the ambiguous figure of 387,091 does
not really include all patients with incomes "less than $12,501,"
as Nieves describes, but only those with incomes falling between

11

assume, for present purposes only, that many of the users of

Puerto Rico public health services are likely to be poorer than

the average population. Still, we are not persuaded that the

Puerto Rico courts would find that such a showing was a disposi-

tive basis from which to declare section 4105 unconstitutional.

In addition to raw statistical data of disproportionate

impact, we think the Commonwealth courts would require evidence

(e.g., historical patterns of discrimination against the targeted

class, or pre-enactment legislative history) that the Puerto Rico

legislature enacted section 4105 with an invidious discriminatory

purpose or intent against the "poor" as a class. Cf., e.g.,

Personnel Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 278-80

(1979) (upholding gender-neutral state statute that gave civil

service employment preference to "veterans," even though pre-

ferred class was proven to be 98% male, absent proof that Legis-

lature enacted it "because of," rather than "in spite of" its

adverse effects on women); Washington v. Davis, 426 U.S. 229, 239

(1976) (upholding testing for police officer applicants, despite

statistical evidence that test had disproportionate adverse

impact on black applicants, absent other evidence of "racially

discriminatory purpose" of legislative enactment). Nieves

proffered no such evidence of discriminatory purpose. In fact,

section 4105's legislative history suggests that the Legislature

$3300 and $12,501. If Nieves' other cited figures (57,750
patients and 45 patients) merely represent further breakdowns of
this overall figure of 387,091 patients, the indigency rate

actually falls to 58%.

12

was animated by far more beneficent motives concern that

inflationary malpractice insurance premiums would dry up the

supply of physicians willing to practice in public health servic-

es, depriving many Puerto Rican families of quality health care.

See generally Enr quez P rez, 108 P.R. Dec. at 677-80.

Given this shortfall, we simply lack a reliable

evidentiary base from which to appraise whether section 4105 dis-

criminates against the alleged suspect classification under

Commonwealth law.11

2. Fundamental Right to Civil Suit for Damages.

Nieves' alternate constitutional claim bypasses the

problematic "poverty" classification discussed above. Nieves

contends that "strict scrutiny" analysis is required because the

Puerto Rico Constitution guarantees the "fundamental" right to

maintain a civil suit for full compensatory damages, see Torres

v. Castillo Alicea, 111 P. R. Dec. 792, 801-802 (1981), without

regard to whether the challenged statutory classification targets

a suspect class. She argues that section 4105 unconstitutionally

deprives a non-suspect class all patients who use Puerto Rico

public health services of this fundamental right without

11The Puerto Rico Supreme Court would reject any certifica-
tion of this factually undeveloped issue. See Pan Am. Computer

Corp. v. Data Gen. Corp., 112 P.R. Dec. 780, 788 (1982) (Rule 27

certification is warranted only if, inter alia, "the case makes

an account of all the facts relevant to said questions showing
clearly the nature of the controversy giving rise to the ques-
tions").

13

positing a compelling governmental interest in its classification

scheme. But cf., e.g., Christensen v. Ward, 916 F.2d 1462, 1472

(10th Cir.) (pursuit of state-law tort action not fundamental

right guaranteed by Federal Constitution), cert. denied, 498 U.S.

999 (1990); Edelstein v. Wilentz, 812 F.2d 128, 131 (3d Cir.

1987) (same).

In Alicea v. C rdova Iturregui, 117 P.R. Dec. 676

(1986), the Puerto Rico Supreme Court struck down P.R. Laws Ann.

tit. 26, 4109(1), a MHPLIA companion provision to section 4105,

which established a maximum two-year statute of limitations for

all medical malpractice claims, without regard to whether the

injury was discoverable within the two-year limitations period.

The court noted that section 4109 created different (albeit non-

suspect) classifications for patients who sustained patent

injuries and patients with latent injuries. Id. at 688. The

court reaffirmed its earlier statement in Torres "that the right

to commence a civil action is a fundamental right," and went on

to conclude that "any legislative classification affecting such

right will have to withstand the strict judicial scrutiny analy-

sis." Id. at 690 (citing Torres, 111 P. R. Dec. at 801-02)

(emphasis added). In Alicea, the court held that the Common-

wealth lacked a sufficiently "compelling state interest" to

justify even this non-suspect classification, and that the

purported goals of the MHPLIA assuring the general avail-

ability of medical malpractice insurance and avoiding the in-

creasing medical costs and declining quality of care associated

14

with exorbitant malpractice insurance premiums would not do.

Id. at 693.

The Alicea court's depiction of Torres has engendered a

splintered precedent that ultimately undermines Nieves' argument.

Only two justices joined the opinion of the court in Alicea

without reservation. Three justices filed separate concurrences;

one justice lodged a vigorous dissent.12 In her concurring

opinion, Justice Naveira de Rod n concluded that the right to

bring a civil suit for damages was at best a "property" right,

and though section 4109(1) was violative of procedural due

process, she opined that Torres did not recognize a "fundamental"

constitutional right of access to the civil courts. Alicea, 117

P.R. Dec at 699-70 n.1 (Naveira de Rod n, J., concurring).13

Moreover, the dissent warned that such a reading of Torres would

expose all Puerto Rico civil statutes of limitations to strict

scrutiny. Id. at 710 (Rebollo L pez, J., dissenting). Thus, five

of the seven justices on the Court did not endorse Nieves' inter-

pretation of Torres. See In re San Juan Dupont Plaza Hotel Fire

Litig., 687 F. Supp. 716, 733-34 (D. P.R. 1988) (citing Alicea as

support for interpreting Torres as recognizing a "property"

right, not a "fundamental" right, to bring civil suit for damag-

12Justice Denton did not participate in the Alicea decision,

and Justice Pons Nu ez concurred without a separate opinion.

13The concurrence aptly notes that, unlike states such as
Texas and Arizona that presumably recognize such a fundamental
constitutional right, see Kenyon v. Hammer, 688 P.2d 961 (Ariz.

1984); Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984), Puerto Rico

has no separate or explicit "open access to courts" provision in
its constitution.

15

es); see also Gregg v. Georgia, 428 U.S. 153, 169 n. 15 (1976)

(noting that, when no rationale commands the respect of a majori-

ty of the court, "the holding of the Court may be viewed as that

position taken by those Members who concurred in the judgments on

the narrowest grounds") (emphasis added).

Moreover, our own analysis of the Torres decision

confirms that the reservations expressed by the concurring and

dissenting justices in Alicea conflict with the broader inter-

pretation of Torres proposed by Nieves. Torres struck down a

statute which capped tort damages in malpractice actions against

the Commonwealth, but permitted plaintiffs who won higher jury

awards to petition the Legislature for special exemption from the

caps. See Torres, 111 P. R. Dec. at 795. Although Torres cites

language suggesting that the challenged statute fatally impeded a

"fundamental" right to bring a civil action, the court struck

down the statute without mentioning the need to demonstrate a

"compelling state interest," thereby raising grave doubt whether

"strict scrutiny" analysis was engaged. Arguably, at least,

Torres invalidated the legislative exemption scheme simply as an

undue encroachment on the judicial branch, "in contravention to

the principle of separation of powers." Id. at 803; cf. V lez

Ruiz v. Commonwealth of Puerto Rico, 111 P.R. Dec. 747, 762

(1981) (striking down MHPLIA's compulsory arbitration provision

as undue interference in judicial function). Thus, Nieves'

proposed reading of Torres, the mooring for her constitutional

claim, derives from language which may well be mere dicta.

16

Since a majority of the Puerto Rico Supreme Court has

not interpreted (indeed, has declined, as in Alicea, to inter-

pret) Torres as Nieves urges, it would be unfitting for us to

chart the future course of Commonwealth law or to enlist the

Puerto Rico Supreme Court in her pathfinding effort. See Venezia

v. Miller Brewing Co., 626 F.2d 188, 192 n.5 (1st Cir. 1980)

(court should be wary of certification where requesting party

merely seeks to persuade state court to extend current state

law). State-law claimants who bypass an available state forum

generally are not entitled to adventurous state-law interpreta-

tions from the federal forum,14 nor have we been receptive to

their requests for certification newly asserted on appeal.15

14See Putnam Resources v. Pateman, 958 F.2d 448, 470 n.25

(1st Cir. 1992); Carlton v. Worcester Ins. Co., 923 F.2d 1, 3

(1st Cir. 1991); Ryan v. Royal Ins. Co., 916 F.2d 731, 744 (1st

Cir. 1990); Taylor v. Aetna Casualty and Sur. Co., 867 F.2d 705,

706 (1st Cir. 1989); see also Tidler, 851 F.2d at 425.

15See Fischer v. Bar Harbor Banking & Trust Co., 857 F.2d 4,

8 (1st Cir. 1988), cert. denied, 489 U.S. 1018 (1989); Cantwell

v. University of Massachusetts, 551 F.2d 879, 888 (1st Cir.

1977); see also Seaboard Sur. Co. v. Garrison, Webb & Stanaland,

P.A., 823 F.2d 434, 438 (11th Cir. 1987); Colonial Park Country

Club v. Joan of Arc, 746 F.2d 1425, 1429 (10th Cir. 1984); Smith

v. FCX, Inc., 744 F.2d 1378, 1379 (4th Cir. 1984), cert. denied,

471 U.S. 1103 (1985).
Nieves first requested certification on appeal; thus her
entitlement is "considerably weaken[ed]." Boston Car Co., Inc.

v. Acura Auto. Div., Am. Honda Motor Co., 971 F.2d 811, 817 n.3

(1st Cir. 1992); see also Croteau v. Olin Corp., 884 F.2d 45, 46

(1st Cir. 1989); Fischer, 857 F.2d at 8; Tidler, 851 F.2d at 426;

Perkins v. Clark Equip. Co., 823 F.2d 207, 210 (8th Cir. 1987)

("The practice of requesting certification after an adverse
judgment has been entered should be discouraged."). Absent a
timely request to the district court, the requesting party must
advance some "compelling" reason for certification on appeal.
Id. Although on occasion we have ordered certification sua

sponte, we find here no countervailing reasons for allowing

certification in these circumstances.

17

While Nieves did not raise the section 4105 "defense," of course,

it was a clearly foreseeable response to her federal complaint

against appellees.

B. Definition of "Employee" in Section 4105.

Finally, Nieves contends that a genuine issue of

material fact remained with respect to whether Drs. Gelp and

Gonz lez Recio were independent contractors working for UPR

pursuant to a contract with the Hospital, a privately-owned

medical facility. See Flores Rom n v. Ramos, 90 J.T.S. 132, at

8243-44 (1990) (holding that physicians who were merely indepen-

dent contractors of Commonwealth, and not its "employees," were

not entitled to section 4105 immunity). To determine whether a

physician claiming section 4105 immunity is an "independent

contractor," or merely a Commonwealth "employee," the court must

consider the totality of the circumstances, focusing principally

on the level of control contractually reserved to the governmen-

tal entity over the physician's provision of patient services.

See Flores Rom n, 90 J.T.S. 132, at 8244. Relevant indicia of

"independent contractor" status may include, inter alia, evidence

that the physician

(1) earned compensation on a per-patient
basis, rather than a flat salary;

(2) received no fringe benefits of a type
given to the principal's employees (-

e.g., vacation or sick leave, pension

benefits, tax withholding);

(3) personally owned, invested in, or paid
for the medical equipment and supplies

18

used to treat patients, or the facili-
ties which formed the situs of that
treatment, or personally hired and su-
pervised her own administrative or sub-
sidiary medical personnel;

(4) held and paid for her own medical mal-
practice insurance policy; or

(5) exercised final judgment as to the ap-
propriate medical treatment to render to
patients.

Id.; see also Rivera v. Hospital Universitario, 762 F. Supp. 15,

17 (D. P.R. 1991).

On appeal, Nieves and the appellees bandy various

statements relating to the physicians' status, without much

regard to whether these "facts" were ever substantiated in the

summary judgment record as required by Rule 56. In their answer

and motion to dismiss, Drs. Gelp and Gonz lez Recio claimed that

they were "state employed physicians" entitled to section 4105

immunity. Later, they introduced a sworn statement by John M.

Rom n Rodr guez, Dean of UPR's Medical Science Campus and custo-

dian of its personnel records, attesting that Dr. Gonz lez Recio

was an "employee" of the UPR medical school in December 1983, and

that Dr. Gelp , while not an "employee" of UPR, was enrolled as a

"resident" in training in UPR's medical graduate program.16

16We assume for present purposes that appellees had the
burden of proof with respect to their status as Commonwealth
"employees." See P.R. Laws Ann. tit. 32, 1971; but see supra

note 2. We note, however, that Nieves might have raised a
distinct issue of statutory interpretation in the district court
and on appeal; namely, whether the affiant's mere assertion that
Gelp was a UPR medical "resident" or trainee was probative, as a
matter of law, of his status as a UPR "employee" under section
4105. Generally speaking, of course, not all UPR students would
necessarily be deemed school "employees" merely by virtue of

19

Nieves conceded at oral argument that the motion to

dismiss was properly converted to a motion for summary judgment

pursuant to Fed. R. Civ. P. 12(b)-(c). As the nonmoving party,

Nieves was required to set forth specific facts demonstrating a

trialworthy issue as to whether these defendant physicians were

independent contractors. See Fed. R. Civ. P. 56(e). In support

of her "independent contractor" theory, Nieves contends that (1)

prior to December 1983, pursuant to contract, UPR placed its

faculty and medical graduate students (residents and interns) at

the Hospital for training purposes, the Hospital paid UPR for

their services, and UPR paid the physicians a salary out of the

contract proceeds; (2) Dr. Gonz lez Recio, Dr. Gelp 's super-

visor, headed the Hospital's OB-GYN department, and received no

direct supervision in the performance of her Hospital duties from

any UPR official; (3) UPR carried malpractice insurance coverage

on both physicians at its own expense, allegedly a superfluous

expenditure if the physicians were "employees" entitled to

section 4105 immunity; and (4) the medical equipment and facili-

ties the defendant physicians used to treat patients were neither

provided nor owned by UPR. Nieves faces two difficulties on

appeal.

their student status. But as framed on appeal, Nieves' argument
does not contest Gelp 's status as a UPR "employee" on this
ground. Therefore, we merely consider whether there was a
genuine factual dispute as to Gelp 's status as an "independent
contractor" of UPR. See Vanhaaren v. State Farm Mut. Auto. Ins.

Co., 989 F.2d 1, 5 (1st Cir. 1993) (party to diversity action

waives state-law interpretation not raised in district court at
summary judgment); see also Hansen v. Continental Ins. Co., 940

F.2d 971, 983 n.9 (5th Cir. 1991) (same).

20

First, assuming these "facts" to be probative on the

issue of "independent contractor" status (e.g., minimal UPR

supervision of Dr. Gonz lez Recio), the only "proof" presented by

Nieves consisted of the undocumented and unsubstantiated asser-

tions contained in her opposition memorandum of January 31, 1992.

Although Nieves argues that "the facts . . . depend on the super-

vision and control over [the doctors'] functions pursuant to

contract," and even though she deposed both physicians and con-

ducted discovery for eight months prior to dismissal, she never

submitted the pertinent contract provisions, the malpractice

insurance policies, or an affidavit in support of the factual

assertions set forth in her opposition memorandum.17 Factual

assertions by counsel in motion papers, memoranda, or briefs are

generally not sufficient to generate a trialworthy issue. See

Fragoso v. Lopez, 991 F.2d 878, 887 (1st Cir. 1993); see also In

re Morris Paint and Varnish Co., 773 F.2d 130, 134 (7th Cir.

1985); S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde

& Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1982).

Second, even though a party may not generate a trial-

worthy dispute at summary judgment merely by presenting unsub-

stantiated allegations in its memoranda or briefs, a party may

nonetheless concede facts adverse to its position on summary

17We appreciate that Nieves may have been caught off guard
by appellees' reply memorandum, filed three weeks after the
court's dismissal order. Nevertheless, if Nieves lacked suffi-
cient time to present her evidence in admissible form, she could
have moved for a continuance pursuant to Fed. R. Civ. P. 12(c)
and 56(f).

21

judgment. See 10A Charles A. Wright, Arthur R. Miller & Mary K.

Kane, Federal Practice & Procedure 2723, at 63-65 (1983 & Supp.

1993) (adverse facts are the functional equivalent of "admissions

on file" explicitly cognizable under Rule 56). Nieves makes

several important concessions relevant to the appropriate "inde-

pendent contractor" analysis prescribed by Flores Rom n. The

mere existence of a residency contract between UPR and the

Hospital, together with UPR's payment of the physicians'

salaries, indicates that UPR exercised ultimate "control" over

the conditions under which the doctors were to provide medical

services at the Hospital. Further, UPR's provision and payment

of medical malpractice insurance coverage for these physicians

suggested, unless competently rebutted, an employer-employee

relationship between UPR and these physicians under the UPR-

Hospital contract. Cf. Flores Rom n, 90 J.T.S. 132, at 8244

(because physicians' contract with state agency gave them abso-

lute control over medical treatment, contract also required the

doctors to pay for, and maintain in force at all times, their own

malpractice insurance policies, and to reimburse government

entity for all legal expenses arising from the doctors' negligent

acts).18 Finally, Nieves misapprehends the fundamental message

of Flores Rom n, by arguing that the Hospital's ownership of the

18Nieves argues that UPR would not need to insure the physi-
cians if they were "employees," hence absolutely immune from
liability under section 4105. Of course, this is not necessarily
true, since UPR, as an "arm" of the Commonwealth, could still be
liable for the negligence of its immune employees up to the
statutory limits prescribed by P.R. Laws Ann. tit. 32, 3077(a).
See supra pp. 3-4.

22

medical equipment and facilities establishes that the doctors

were independent contractors. The proper focus is not whether

the putative principal (viz., UPR) owns or controls the equipment

and facilities, but whether the performing party (viz., the

physician) uses his own "tools" to perform the required services.

Nieves readily concedes that these physicians did not own the

medical equipment used to treat their patients, nor did they hire

or supervise their own support personnel, nor contribute to

Hospital operating expenses. Moreover, individual physicians did

not contract with the Hospital to obtain privileges or accommoda-

tions. Cf. Flores Rom n, 90 J.T.S. 132, at 8244 (noting that the

contract provided that the contract doctors would hire their own

support personnel, and treat patients with their own equipment,

at their own facilities).

We conclude that the summary judgment record contained

no competent evidence, and accordingly did not raise a colorable

factual dispute, from which the district court could have made a

determination that either physician was an "independent contrac-

tor" of UPR. Appellees therefore were entitled to judgment as a

matter of law.19

Affirmed.

19On appeal, Nieves argues for the first time that Dr. Gelp
produced no evidence that he was a "health care professional"
within the meaning of the MHPLIA. We decline to address this
belated claim as it was never raised in the district court. See

Miller v. United States Postal Serv., 985 F.2d 9, 12 (1st Cir.

1993).

23