Cabán v. R Seafood, Civil No. 14–1507(GAG).

• Decision Date: 11 September 2015
• Docket Number: Civil No. 14–1507(GAG).
• Citation: 132 F.Supp.3d 274
• Parties: Luis GONZÁLEZ CABÁN, et al., Plaintiffs, v. JR SEAFOOD, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

132 F.Supp.3d 274

Luis GONZÁLEZ CABÁN, et al., Plaintiffs,

v.JR SEAFOOD, et al., Defendants.

Civil No. 14–1507(GAG).

United States District Court, D. Puerto Rico.

Signed Sept. 11, 2015.

Emelina M. Agrait–Barreto, Jaime F. Agrait–Llado, Agrait Llado Law Office, San Juan, PR, for Plaintiffs.

Wilfredo A. Geigel, Eugenio W.A. Geigel–Simounet, Law Offices of Wilfredo A. Geigel, Christiansted, St. Croix, VI, Eduardo J. Cobian–Roig, Cobian & Cobian, P.S.C, San Juan, PR, Nestor Daniel Galarza–Diaz, Metro Pavia Health System, Inc., Legal Department, Carolina, PR, for Defendants.

OPINION, ORDER AND CERTIFICATION TO THE PUERTO RICO SUPREME COURT

GUSTAVO A. GELPÍ

, District Judge.

Luis González Cabán ("González") filed this lawsuit alleging that after consuming a toxic shrimp at Restaurante El Nuevo Amanecer, in Coamo, Puerto Rico on February 19, 2004, he suffered paralytic shellfish poisoning

that permanently deteriorated his health to the point of incomplete quadriplegia, which bound him to a wheelchair.¹ (Docket No. 86–1.)

On June 24, 2014, González and other family members,² all residents of the State of Florida, (collectively "Plaintiffs") filed a complaint invoking this court's diversity jurisdiction under to 28 U.S.C. § 1332

, against JR Seafood Inc., Integrand Insurance Company, Packers Provisions of Puerto Rico Inc. ("Packers"), Ramón Gutiérrez, Evaristo Rivera Berrios d/b/a Restaurante El Nuevo Amanecer ("Restaurante el Nuevo Amanecer"), and Cooperativa de Seguros Múltiples (collectively "Defendants") seeking damages suffered as a result of González's intoxication.³ (Docket No. 86–1.) Pending before this court is Packers' Motion to Dismiss Plaintiffs' First Amended complaint pursuant to FED.R.CIV.P.R. 12(b)(6)

. (Docket No. 60.) Defendants Integrand Assurance, Evaristo Rivera–Berrios and Cooperativa de Seguros Multiples later joined Packers' Motion to Dismiss. (See Docket Nos. 94 & 99.) Defendants essentially argue that: (1) Plaintiffs' complaint fails to sufficiently allege the application of the strict liability doctrine to the instant case; and (2) Plaintiffs failed to establish that Defendants, as part of the supply chain of the allegedly contaminated shrimp, had a duty to perform tests to detect the presence of saxitoxin. Id.

After careful review of the parties' allegations and applicable law, the court finds that this case relies solely on an unsettled issue of Puerto Rico law, as to which this court cannot reasonably predict how the Puerto Rico Supreme Court would rule. Because there is no clear precedent to guide this court's ruling, the undersigned holds that the prudent course of action is to ABSTAIN from ruling on Defendants' Motion to Dismiss at Docket No. 60 and CERTIFY the issue of law to the Puerto Rico Supreme Court.

I. Factual and Procedural Background

For purposes of this Opinion and Order, the court recites Plaintiffs' alleged facts that are most relevant to the present issue.

JR Seafood was, at all times pertinent, an importer, seller, distributor and/or packager of seafood, including shrimp. (Docket No. 86–1 at 2 ¶ 2.) Although JR Seafood is no longer in operation, it is included in this complaint as a nominal defendant while Plaintiffs claim their insurance company, Integrand Assurance, is liable for their damages. Id. Packers was, at all times pertinent, an importer, seller, distributor and/or packager of seafood, including shrimp. Id. ¶ 3. Ramon Gutierrez, d/b/a/ GB Trading was also, at all times pertinent, an importer, seller, distributor and/or packager of seafood, including shrimp. Id. ¶ 4. Restaurante el Nuevo Amanecer, at all times pertinent, owned and operated a restaurant in Coamo, Puerto Rico. Id. ¶ 5. Cooperativa de Seguros Multiples is the insurer of Restaurante El Nuevo Amanecer. Id.

In or about August 2004, JR Seafood imported a shipment of shrimp to Puerto Rico. (Id. at 3 ¶ 1.) The shrimp was originally caught in Calcutta, India. Id. JR Seafood, in turn, sold some of the shrimp to Packers, who then sold the shrimp to GB Trading. Id. On December 21, 2004, GB Trading sold the shrimp product to Restaurante El Nuevo Amenecer. Id. at 3 ¶ 1.

On February 19, 2005, González went to Restaurante El Nuevo Amenecer in Coamo, Puerto Rico and ordered a plate containing shrimp product. Id. at 3 ¶ 2. As he was eating the shrimp, González began to feel a burning and stinging sensation in his mouth and stomach. Id. Minutes later, his health commenced to deteriorate. Id. He began to suffer the following symptoms: diarrhea, vomiting, hypotension, hypokalemia, dizziness, syncope, sensory and motor disturbance, quadraparalysis, acute inflammatory demyelination

(myelitis ) of the spine, renal failure, acute tubular necrosis, thrombocytopenia, acute gastroenteritis, anemia, leucytosis, acidosis, azotemia and diffuse skin rash over his abdomen and arm. (Docket No. 86–1 at 2–3, ¶ 2.)

González was taken to the hospital where he remained in critical condition for various days. Id. at 3, ¶ 3. After he was stabilized, he began a long recovery process that included painful and difficult therapeutic treatment. (Docket No. 86–1 at 3, ¶ 3.) González was unable to completely recuperate his health. Id. He was diagnosed with incomplete quadriplegia

and remains permanently bound to a wheelchair. Id. He only regained limited mobility in his arms and hands. Id. González has no bladder control, no sphincter control and has lost all sexual desire and capacity. Id. After being treated in hospitals in Puerto Rico as well as in the United States mainland, medical experts determined González's conditions were caused by Paralytic Shellfish Poisoning from the shrimp he ate at Restaurante el Nuevo Amanecer on February 19, 2004. (Id. at 3, ¶ 4.) The poisoning allegedly occurred from consuming a shrimp that contained saxitoxin, a natural toxin that encapsulated in the shrimp's "viscera" (the intestine). Id.

Plaintiffs contend that the allegedly contaminated shrimp was a defective product and that Defendants, as sellers, distributors and/or packagers of the defective product, and their respective insurance companies, are liable under the product liability principles of Puerto Rico tort law. (Docket No. 86–1.) Specifically, Plaintiffs invoke the strict liability doctrine under the principles of failure to warn about the product's defect and implied warranty. Id. Plaintiffs further allege that Defendants are joint and severally liable for providing an unsafe food product in violation of specific public policy that aims to protect the consumer from damages that arise when a product that is placed in the market is unfit for human consumption. Id.

It is important to note that, after Defendants moved to dismiss Plaintiffs' amended complaint, Plaintiffs responded in opposition to said motion and also requested leave to amend their complaint once again. (Docket No. 86.) Per leave of court, Plaintiffs amended their complaint and included additional, more specific details and allegations as to Plaintiffs' strict liability claim. Id. Also, Plaintiffs included a cause of action under Puerto Rico's general tort statute, Article 1802 of the Puerto Rico Civil Code ("Article 1802"), P.R. LAWS ANN. tit. 31, § 5142

, arguing that Defendants were negligent for failing to take "all necessary precautions to detect, discard or clean the [contaminated] shrimp," and other local law claims.⁴ (Docket No. 861.)

Currently pending before this court is Defendants' Motion to Dismiss Plaintiffs' First Amended complaint pursuant to FED. R. CIV. P.R. 12(b)(6)

. (Docket No. 60.) Defendants argue that: (1) Plaintiffs' complaint fails to sufficiently allege the application of the strict liability doctrine to the instant case; and (2) Plaintiffs failed to establish that Defendants, as part of the supply chain of the allegedly contaminated shrimp, had a duty to perform tests to detect the presence of saxitoxin. Id. Plaintiffs opposed Defendants' Motion to Dismiss. (Docket No. 86.) Per leave of court, Packers replied Plaintiffs' opposition. (Docket No. 91.) Plaintiffs then filed a sur-reply. (Docket No. 97.)

Under Rule 15(c) of the Federal Rules of Civil Procedure

, pleading amendments relate back to the original pleading when the claim(s) it asserts arise from the same conduct, transaction or occurrence. FED. R. CIV. P.R. 15(c). "A pleading that has been amended under Rule 15(a) supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is modified. Once an amended pleading is interposed, the original pleading no longer performs any function in the case." Wright and Miller, Federal Practice & Procedure 6 § 1476 Effect of an Amended Pleading (3d ed.2015). As such, although Defendants' Motion to Dismiss addressed Plaintiffs' strict liability allegations at Docket No. 32, the court examines the pending motion as addressed to Plaintiffs' amended strict liability allegations at Docket No. 86–1.⁵

II. Discussion

Defendants' main contention is that that the common-law strict liability doctrine, incorporated by the Puerto Rico Supreme Court in Castro v. Payco, 75 P.R. Dec. 59 (1953) (certified translation at Docket No. 80–1), and Mendoza v. Cervecería Corona, 97 D.P.R. 499 (1969)

(certified translation at Docket No. 80–3) is limited to manufacturing defects of fabricated products, and thus, it does not apply to the facts of this case since the shrimp's alleged defect was not a result of manufacturing. (Docket No. 60 at 6–7.) In support of their argument, Defendants outline the history of the strict liability doctrine in Puerto Rico to further stress that because the allegedly poisonous shrimp is not a manufactured or fabricated product, it does not constitute a defective product, pursuant to Puerto Rico Supreme Court precedent.

To address this argument, the court turns to the current state of the law in Puerto Rico. Article 1802 makes persons responsible for the damage caused by their negligence. Tit. § 5141. Under this principle, the Puerto Rico...