Rodriguez-Suris v. Montesinos

Decision Date05 June 1997
Docket NumberRODRIGUEZ-SURIS,No. 96-2149,96-2149
Citation123 F.3d 10
PartiesProd.Liab.Rep. (CCH) P 15,038 Edna, et al., Plaintiffs-Appellants, v. Bertha MONTESINOS, et al., Defendants-Appellees. . Heard
CourtU.S. Court of Appeals — First Circuit

Kevin G. Little, for Plaintiffs-Appellants.

Joe W. Redden, Jr., with whom Curt Webb, Linda K. McCloud, Beck, Redden & Secrest, Edna Hernandez and Reichard & Escalera were on brief for Defendants-Appellees.

Before SELYA, Circuit Judge, CYR, Senior Circuit Judge, and KEETON, * District Judge.

KEETON, District Judge.

In this diversity action, plaintiffs-appellants sued defendants-appellees for injuries sustained after receiving facial collagen injections from defendant Bertha Montesinos. Plaintiffs filed their complaint nearly four years after receiving the injurious injections. The district court granted summary judgment in favor of both defendants (Montesinos and Collagen Corporation), holding that all of plaintiffs' claims were barred by the one-year Puerto Rico statute of limitation applicable to tort actions. 935 F.Supp. 71 (D.P.R.1996). We reverse and remand with directions, as explained.

I. Issues Presented

The principal legal issues in dispute in this case concern limitation of tort actions under the law of Puerto Rico. More precisely, the dispute centers on the meaning of statutory provisions and opinions of courts of Puerto Rico interpreting them, particularly with respect to levels of awareness of injury, source of injury, causal connection, and legal responsibility.

To what extent is the running of the statutory time limit of one year for the filing of tort actions for damages affected by lack of awareness of injury, a connection between injury and the personal services or other conduct of a person, and legal responsibility for the injury?

To what extent is the running of the statutory time limit of one year affected by lack of awareness of a connection between injury and a product of a manufacturer or other supplier of the product?

To what extent is the running of the limitation period affected by the representations of the person who caused the injury, or of third persons, regarding the nature and source of a plaintiff's injury?

Answers to these questions must be determined as matters of law. Accordingly, this court reviews the district court's rulings on these issues de novo.

The matters of law we are deciding, of course, are matters of the law of Puerto Rico. Both in the district court and in this court on appeal, the determination of these questions of law does not involve any discretion to fashion rules of law. Instead, our objective is solely to determine what is the law as indicated by authoritative sources. Primary among these "authoritative sources" are the plainly expressed holdings of the highest court of Puerto Rico. See, e.g., Daigle v. Maine Med. Ctr., Inc., 14 F.3d 684, 689 (1st Cir.1994) (noting that in applying state law, a federal court is "absolutely bound by a current interpretation of that law formulated by the state's highest tribunal"). Where a jurisdiction's highest court has not spoken on a precise issue of law, we look to "analogous state court decisions, persuasive adjudications by courts of sister states, learned treatises, and public policy considerations identified in state decisional law" in order to make an "informed prophecy" of how the state court would rule on the precise issue. Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148, 1151 (1st Cir.1996).

II. Puerto Rico Law Regarding the Statute of Limitation
A. An Overview

The Puerto Rico statute of limitation for tort actions provides for a one-year limitation period that begins to run from "the time the aggrieved person has knowledge of the injury." P.R. Laws Ann. tit. 31, § 5298 (1994). Plaintiff bears the burden of proving when the "damage" became known. Rivera Encarnacion v. Estado Libre Asociado De Puerto Rico, 113 P.R. Dec. 383, 385, 13 P.R. Offic. Trans. 498, 501 (1982).

What is it that one must know in order to have "knowledge of the injury?" The Supreme Court of Puerto Rico has stated that a plaintiff will be deemed to have "knowledge" of the injury, for purposes of the statute of limitation, when she has "notice of the injury, plus notice of the person who caused it." Colon Prieto v. Geigel, 115 P.R. Dec. 232, ----, 15 P.R. Offic. Trans. 313, 330 (1984) [citations hereafter to P.R. Offic. Trans.]. See also Fragoso v. Lopez, 991 F.2d 878, 886 (1st Cir.1993); Santiago Hodge v. Parke Davis & Co., 909 F.2d 628, 632 (1st Cir.1990); Barretto Peat v. Luis Ayala Colon Sucrs., 896 F.2d 656, 658 (1st Cir.1990); Hodge v. Parke Davis & Co., 833 F.2d 6, 7 (1st Cir.1987).

"Notice of the injury," as explained in a later case, is established by proof of:

some outward or physical signs through which the aggrieved party may become aware and realize that he [or she] has suffered an injurious aftereffect, which when known becomes a damage even if at the time its full scope and extent cannot be weighed. These circumstances need not be known in order to argue that the damage has become known, because its scope, extent and weight may be established later on during the prosecution of the remedial action.

Delgado Rodriguez v. Nazario De Ferrer Y Otros, 121 P.R. Dec. 347, ---- (Official English Translation) (P.R. May 16, 1988) (quoting H. Brau del Toro, Los Danos y Perjuicios Extracontractuales en Puerto Rico 639-40, Pub. J.T.S., Inc. (2d ed.1986)) (internal quotation marks omitted). Once a plaintiff is on "notice of the injury," the plaintiff may "not wait for his [or her] injury to reach its final degree of development and postpone the running of the period of limitation according to his [or her] subjective appraisal and judgment." Ortiz v. Municipio De Orocovis, 113 P.R. Dec. 484, 487, 13 P.R. Offic. Trans. 619, 622 (1982).

In some circumstances, awareness of the existence of an injury, on its own, will not be enough to trigger the running of the limitation period. See, e.g., Galarza v. Zagury, 739 F.2d 20, 24 (1st Cir.1984) (stating that "knowledge of the author of the harm means more than an awareness of some ill effects resulting from an operation by a particular doctor"). If a plaintiff is not aware of some level of reasonable likelihood of legal liability on the part of the person or entity that caused the injury, the statute of limitation will be tolled. In other words, a plaintiff must also have "knowledge of the author of the injury," a concept articulated at length in the Supreme Court of Puerto Rico's decision in Colon Prieto.

In Colon Prieto, the plaintiff experienced pain and insensitivity in his tongue following dental surgery in November 1971. 15 P.R. Offic. Trans. at 317. Geigel, the dental surgeon, told plaintiff that he had bitten himself on the tongue and that the symptoms would subside in a short while. Id. For over a year, Coln Prieto continued to see Geigel, who told him that the pain would go away. Id. But the symptoms did not subside. In November 1972, plaintiff consulted with another physician, and learned for the first time that the pain was the result of Geigel's having cut a nerve during the initial operation.

Coln Prieto brought suit against Geigel on September 10, 1973, more than one year after the original operation. Geigel asserted the statute of limitation as a defense. The Supreme Court of Puerto Rico rejected Geigel's defense, holding that, because Coln Prieto did not acquire knowledge of the nature of his injury and Geigel's role in the injury until the November 1972 consultation with the other doctor, plaintiff was not barred under the Puerto Rico statute of limitation.

Distinguishing Coln Prieto's case from the more traditional tort case in which a plaintiff is aware from the moment of the tortious act of the injury and its cause (for example, where a defendant's act causes something to fall on a plaintiff immediately), the Supreme Court of Puerto Rico observed that the statutory phrase " 'from the time the aggrieved person had knowledge thereof ' ... rejects a literal and narrow reading." Id. at 327. The court noted that the legal reasoning behind a plaintiff's loss of rights under a statute of limitation is that the plaintiff is deemed to have abandoned those rights. Id. (quoting A. Borrell Macia, Responsabilidades Derivadas de Culpa Extracontractual Civil, 66, Barcelona, Ed. Bosch (2d ed.1958)). In order for this legal reasoning to apply, therefore, "such abandonment [on the part of the plaintiff] should really exist." Id.

B. Three Analytically Separable Questions

We conclude that within the larger structure regarding the law of Puerto Rico on limitation of tort actions are three analytically separable subsidiary issues. These issues concern the circumstances in which a plaintiff can be said to have, or to lack, the requisite level of awareness for statute of limitation purposes.

First, the concept of "true knowledge" applies where a plaintiff is actually aware of all the necessary facts and the existence of a likelihood of a legal cause of action. Second, concepts of "notice" and "deemed knowledge" apply. Under these concepts a plaintiff's subjective awareness is measured against the level of awareness that the plaintiff, having been put on notice as to certain facts and having exercised reasonable care regarding a potential claim, should have acquired. Third, the law of Puerto Rico recognizes an exception to applicability of the concepts of notice and deemed knowledge for circumstances in which a plaintiff's failure to make a timely filing of a claim is reasonably based upon the assurances of the person who caused the injury.

From a structural perspective, two of these questions (about true knowledge and deemed knowledge) concern alternative ways in which a defendant may establish that a claim is barred because it is filed too late. If the...

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