605 F.3d 1 (1st Cir. 2010), 09-1699, Borges ex rel. S.M.B.W. v. Serrano-Isern

Docket Nº:09-1699.
Citation:605 F.3d 1
Opinion Judge:SELYA, Circuit Judge.
Party Name:Artemio BORGES and Kimberly Wetherell, as Parents and Next Friends of S.M.B.W., a Minor, Plaintiffs, Appellants, v. Dr. Alfonso SERRANO-ISERN, et al., Defendants, Appellees.
Attorney:David Efron, with whom Law Offices David Efron, P.C. was on brief, for appellants. Benjamin Morales Del Valle, with whom Morales-Morales Law Offices was on brief, for Serrano-Isern and related appellees. Roberto Ruiz Comas, with whom Bufete Gonz
Judge Panel:Before TORRUELLA, SELYA and LIPEZ, Circuit Judges.
Case Date:May 03, 2010
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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605 F.3d 1 (1st Cir. 2010)

Artemio BORGES and Kimberly Wetherell, as Parents and Next Friends of S.M.B.W., a Minor, Plaintiffs, Appellants,


Dr. Alfonso SERRANO-ISERN, et al., Defendants, Appellees.

No. 09-1699.

United States Court of Appeals, First Circuit.

May 3, 2010

Heard March 4, 2010.

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[Copyrighted Material Omitted]

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David Efron, with whom Law Offices David Efron, P.C. was on brief, for appellants.

Benjamin Morales Del Valle, with whom Morales-Morales Law Offices was on brief, for Serrano-Isern and related appellees.

Roberto Ruiz Comas, with whom Bufete González Villamil was on brief, for Hospital Interamericano de Medicina Avanzada and related appellees.

Before TORRUELLA, SELYA and LIPEZ, Circuit Judges.

SELYA, Circuit Judge.

This appeal grows out of a medical malpractice action brought under diversity jurisdiction. See 28 U.S.C. § 1332(a). The district court jettisoned the action at the summary judgment stage. The plaintiffs appeal. Discerning no error, we affirm.


We rehearse the facts limned in the summary judgment record, taking them in the light most hospitable to the plaintiffs. Alt. Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 26 (1st Cir.2004). We add more detail in our later discussion of the plaintiffs' specific claims. To the extent that we refer to the allegations of the complaint, we caution that mere allegations are not entitled to weight in the summary judgment calculus. Id.

We start with the cast of characters. The plaintiffs are Artemio Borges and Kimberly Wetherell, husband and wife, who sue on behalf of their minor daughter, Stephanie Marie Borges-Wetherell. There are a plethora of defendants but, for present purposes, the only two who matter are Alfonso Serrano-Isern (Dr. Serrano) and Hospital Interamericano de Medicina Avanzada (the Hospital).

Dr. Serrano practices obstetrics and gynecology in Puerto Rico. Wetherell (who, like all the plaintiffs, claims Florida citizenship) became pregnant, and enlisted Dr. Serrano's services. Dr. Serrano treated her from and after February 6, 2003. Wetherell's pregnancy was unremarkable, her prenatal course uneventful, and her prognosis good.

At around 7:33 a.m. on June 2, 2003, Wetherell was admitted to the Hospital for induction of labor. Following Wetherell's admission, Dr. Serrano, together with the Hospital's nurses and other staff, took charge of her care.

Dr. Serrano decided to deliver the baby by Cesarean section (C-section). He says that he made this decision because the baseline fetal heart rate, which he characterized as low but within normal limits, indicated the wisdom of this method of delivery. The plaintiffs do not accept this explanation, suggesting that an emergency C-section was required because of the presence of fetal bradycardia (that is, a sustained, abnormally low fetal heart rate).

Whatever the reason for deciding to deliver the baby by C-section, Wetherell signed a consent form for the procedure at 8:15 a.m. She was taken to an operating room at 10:00 a.m. Anesthesia was administered at 10:18 a.m. She gave birth to Stephanie at 10:22 a.m.

In the course of performing the C-section, Dr. Serrano discovered an occult cord prolapse. The hospital records show that the C-section was well underway when that discovery occurred.

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At birth, Stephanie was an apparently healthy baby. She cried and suckled normally. A cranial sonogram, a neurological consultation, and a pulmonary evaluation revealed no problems.

The Hospital discharged Wetherell on June 5, 2003. It sent Stephanie home six days later.

On October 26, 2006, the plaintiffs sued for medical malpractice. The complaint alleges that Stephanie has experienced serious physical and neurological deficits, global developmental delay, and low muscle tone-conditions that allegedly require, and will in the future require, continuous physical, occupational, and speech therapies. The complaint attributes these maladies to injuries sustained at birth, specifically, intrapartum anoxia secondary to umbilical cord prolapse and delay in calling for and performing the C-section.

The plaintiffs claimed that Dr. Serrano was liable for his own negligence and that the Hospital was liable both vicariously (for Dr. Serrano's carelessness) and by virtue of its independent negligence. Both the doctor and the Hospital denied these claims.

A period of pretrial discovery began, during which both sides retained experts. Following the completion of discovery, Dr. Serrano moved for summary judgment, arguing that he had provided treatment that fully comported with the applicable standard of care and that the plaintiffs had failed to show that any negligence on his part had caused harm to Stephanie. Two days later, the Hospital likewise moved for summary judgment, arguing that the plaintiffs had failed to show a basis for any liability (vicarious or direct) on its part.

The district court granted both motions. See Wetherell v. Hosp. Interamericano de Medicina Avanzada, Inc. ( Wetherell II ), 609 F.Supp.2d 186, 193 (D.P.R.2009) (granting the Hospital's motion); Wetherell v. Hosp. Interamericano de Medicina Avanzada, Inc. ( Wetherell I ), No. 06-2079, 2009 WL 921157, at *7 (D.P.R. Mar. 31, 2009) (granting Dr. Serrano's motion). In its thoughtful opinion allowing Dr. Serrano's motion, the court held that the plaintiffs had failed to show either that Dr. Serrano had transgressed his duty of care or that a causal nexus existed between Dr. Serrano's conduct and Stephanie's alleged injuries. Wetherell I, 2009 WL 921157, at *7. In a separate opinion, the court held that the plaintiffs had failed to show that the Hospital could be found either independently negligent or vicariously liable. Wetherell II, 609 F.Supp.2d at 192-93. This timely appeal ensued.


On appeal, the plaintiffs challenge the district court's entry of summary judgment in favor of both the Hospital and Dr. Serrano. We first delineate the summary judgment standard; then clarify a procedural point; and, finally, examine sequentially the two challenged rulings.

A. The Summary Judgment Standard.

We review orders granting summary judgment de novo, considering the facts of record and all reasonable inferences therefrom in the light most favorable to the nonmoving party. See Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 183-84 (1st Cir.1999). Summary judgment is appropriate if there is no genuine issue as to any material fact and the undisputed facts show that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c)(2).

The vocabulary of summary judgment is well-defined. An issue is " genuine" if the evidence of record permits a rational factfinder to resolve it in favor of either party. See

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Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). A fact is " material" if its existence or nonexistence has the potential to change the outcome of the suit. See Martínez v. Colón, 54 F.3d 980, 984 (1st Cir.1995).

The moving party bears the initial burden of informing the trial court of the basis for his motion and identifying the portions of the pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any, that demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has accomplished this feat, the burden shifts to the nonmoving party, who must, with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor. Id. at 324, 106 S.Ct. 2548; DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997). As a general rule, that requires the production of evidence that is " significant[ly] probative." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the nonmovant fails to make this showing, then summary judgment is appropriate. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

B. The Deeming Order.

The local rules of the United States District Court for the District of Puerto Rico require that parties make certain filings in connection with motions for summary judgment. The movant must support his motion with " a separate, short, and concise statement of material facts, set forth in numbered paragraphs, as to which the moving party contends there is no genuine issue of material fact to be tried." D.P.R.R. 56(b). " Each fact asserted in the statement shall be supported by a record citation...." Id.

If the target of the motion chooses to oppose it, she must file with her opposition a " separate, short, and concise" counter-statement. D.P.R.R. 56(c). " Th[is] opposing statement shall admit, deny or qualify the facts [supporting the motion for summary judgment] by reference to each numbered paragraph of the moving party's statement of material facts and unless a fact is admitted, shall support each denial or qualification by a record citation...." Id.

These statements-both the movant's and the nonmovant's-must satisfy specific commands:

Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted. An assertion of fact set forth in a statement of material facts shall be followed by a citation to the specific page or paragraph of identified record material supporting the assertion. The court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment. The court shall have no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of facts.

D.P.R.R. 56(e).

When Dr. Serrano and the Hospital filed their respective summary judgment motions,...

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