De Leon Lopez v. Corporacion Insular de Seguros

• Decision Date: 07 March 1991
• Docket Number: No. 90-1897,90-1897
• Parties: Pablo DE LEON LOPEZ, Plaintiff, Appellee, v. CORPORACION INSULAR de SEGUROS, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 116

931 F.2d 116

Pablo DE LEON LOPEZ, Plaintiff, Appellee, v. CORPORACION INSULAR de SEGUROS, Defendant, Appellant.

No. 90-1897.

United States Court of Appeals First Circuit.

Heard March 7, 1991.

Decided April 19, 1991.

Antonio M. Bird, Jr., with whom Bird, Bird & Hestres, San Juan, P.R., was on brief, for defendant-appellant.

Harold D. Vicente, with whom Vicente & Cuebas, Santurce, P.R., was on brief, for plaintiff-appellee.

Before BREYER, Chief Judge, SELYA, Circuit Judge, and BOYLE ^*, District Judge.

SELYA, Circuit Judge.

Scholarly sources relate that the first English usage of the word "twin" as an adjective meaning "born at the same birth" appeared in Shakespeare's Comedy of Errors (1590). See, e.g., XVIII Oxford English Dictionary 753 (2d ed. 1989); Barnhart Dictionary of Etymology 1178 (1988). The litigation pending before us, seeking damages for emotional distress suffered as a result of a hospital's negligence in confusing one of the plaintiff's identical twin granddaughters with another twin baby born at around the same time, is a poignant reminder of the origins of the term.

I. BACKGROUND

The topsy-turvy tale of the traded twins began, in a biological sense, with the marriage of Juan Ramon De Leon Flores, son of plaintiff-appellee Pablo De Leon Lopez (De Leon), to Dulce M. Hernandez Ramos (Dulce). The marriage proved fruitful; on September 3, 1985, Dulce gave birth to identical twin daughters at University Hospital (the Hospital), an adjunct of the Puerto Rico Medical Center. The novice parents named their newborn twins Mari Tairi and Tairi Mari. The next day, Rosaura Hernandez Morales (Mrs. Hernandez), also a maternity patient, gave birth to fraternal twin daughters.

Dulce, while in the Hospital, presumably became familiar with her newborns during breast-feedings and by spending other time with them. She went home on September 5. The following day, she and her husband returned to retrieve their progeny. When the two girls were given to her, Dulce noticed that they did not seem identical in appearance. She asked the nurse why the babies did not "look alike." The nurse explained that infants change from one day to the next, and assured the anxious mother that the babies were indeed her twin daughters. The nurse also remarked disparagingly that Dulce must be a "primeriza," that is, a first-time mother. Their concerns assuaged, the parents took the babies home.

Over the next year and a half, the plaintiff, who lived on St. Croix, would visit the children roughly twice a month. He became particularly attached to Tairi (who was nicknamed "La Canita" because she, unlike her sister, was blond). On April 10, 1987, fate intervened. Dulce's sister, Gloria, was at a physician's office with one of her other nieces (neither Mari nor Tairi). The niece said that she saw her cousin across the room. Gloria glanced over and saw a young girl identical in appearance to one of the De Leon twins. Gloria then approached the child's mother, Mrs. Hernandez, and told her of the coincidence. When she found out that Mrs. Hernandez had given birth to twins at the same hospital as Dulce, and in the same time frame, Gloria's suspicions blossomed.

We skip over painful details not relevant to the issues on appeal. When the two sets of twins were brought together, it became crystal clear that two of the babies had been switched. Subsequent testing determined that the identical twins belonged to Dulce and the fraternal twins, including La Canita, belonged to Mrs. Hernandez. After much agonizing, the families decided to restore each set of twins to its genetic parents. The realignment was finalized in the fall of 1987.

On April 29, 1988, De Leon filed this diversity action in the United States District Court for the District of Puerto Rico, seeking damages for his emotional distress. ¹ Initially, he sued three parties, but soon dropped two of the original defendants, training his sights on Corporacion Insular de Seguros (CIS), the Hospital's malpractice insurer. CIS was named as a defendant pursuant to Puerto Rico's direct action statute, P.R.Laws Ann. tit. 26, Secs. 2001-2004 (1976). In turn, CIS filed a third-party complaint against Universal Insurance Company (Universal), ² claiming that, if the Hospital were liable for the baby-switching, primary coverage lay under the Hospital's general liability insurance policy rather than under its medical malpractice insurance policy. The plaintiff amended his complaint to include Universal as a direct defendant.

Trial began on February 26, 1990. The plaintiff's case consisted mainly of testimony by family members regarding the trauma of the discovery and their consequent suffering. To establish liability, the plaintiff relied on a res ipsa loquitur theory. In their respective defense cases, the insurers concentrated on adducing evidence anent the coverage issue. Indeed, Universal's counsel, in his opening statement, conceded that the Hospital was negligent. And while CIS did not make so explicit an admission, it did not elicit any proof tending to exculpate its insured. When all parties rested, the district judge ruled as a matter of law that the baby-switching, if negligently occasioned, fell within the Hospital's medical malpractice coverage. Accordingly, he dismissed Universal from the case. (On appeal, neither CIS nor the plaintiff contests this ruling.)

De Leon then moved for a directed verdict on negligence, arguing that CIS had presented no evidence regarding the Hospital's freedom from fault, thus leaving the jury no choice but to accept the res ipsa inference. The court indicated that it was inclined to agree. To CIS's attorney, however, the glass looked half empty rather than half full. He responded to the court's rumination by moving for a directed verdict in CIS's favor "because nothing has been established." The court granted plaintiff's motion and denied CIS's motion. The jury, given the case on the remaining issues, returned a verdict for $800,000 in compensatory damages.

A flurry of activity followed. The plaintiff moved for attorneys' fees and prejudgment interest pursuant to Rules 44.1(d) and 44.3(b) of the Puerto Rico Rules of Civil Procedure. CIS moved, in the alternative, for judgment n.o.v., a new trial, or a remittitur. While these motions were pending, CIS launched a new offensive. It moved to dismiss the complaint on jurisdictional grounds, arguing that it could not be sued in federal court because it was entitled to eleventh amendment immunity.

On June 12, 1990, the district court filed an opinion which tied up all the loose ends. De Leon Lopez v. Corporacion Insular de Seguros, 742 F.Supp. 44 (D.P.R.1990). CIS's various motions were denied, conditional upon the plaintiff, within twenty days, disclaiming all damages in excess of $110,000. Id. at 48-49. Should the plaintiff not agree to the remittitur, a new trial limited to the question of damages would be held. Id. at 49. On the other side of the ledger, the court granted the plaintiff attorneys' fees and prejudgment interest on the reduced damage award. Id. at 48.

A considerable amount of procedural skirmishing then took place. Ultimately, the judge ruled that De Leon had seasonably accepted the remittitur and entered judgment accordingly. ³ This appeal ensued.

II. THE ELEVENTH AMENDMENT

CIS's primary issue on appeal invokes its professed immunity under the eleventh amendment to the federal Constitution. ⁴ We begin this portion of our analysis by acknowledging certain verities. The eleventh amendment, despite the absence of any express reference, pertains to Puerto Rico in the same manner, and to the same extent, as if Puerto Rico were a State. See Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 697 (1st Cir.1983). The amendment renders a State "immune from suits brought in federal courts by her own citizens as well as by citizens of another State," Employees of Dept. of Public Health & Welfare v. Department of Public Health & Welfare, 411 U.S. 279, 280, 93 S.Ct. 1614, 1616, 36 L.Ed.2d 251 (1973), unless the State expressly waives the immunity, see, e.g., Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662 (1974), or Congress abrogates it, see, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976). Furthermore, the salience of the provision overrides ordinary notions of procedural default; an eleventh amendment defense may be raised for the first time even on appeal to the Supreme Court. See Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 466-67, 65 S.Ct. 347, 351-52, 89 L.Ed. 389 (1945).

While these truths are held to be self-evident and certain, questions nevertheless remain. Often, the pivotal issue in eleventh amendment cases involves whether a particular person or entity is to be considered "the State." Where state agencies and institutions are concerned, the applicability of the amendment "depends upon whether the entity 'is to be treated as an arm [or alter ego] of the State partaking of the State's Eleventh Amendment immunity, or is instead to be treated as a municipal corporation or other political subdivision to which the Eleventh Amendment does not extend.' " Ainsworth Aristocrat Int'l Pty. Ltd. v. Tourism Co. of Puerto Rico, 818 F.2d 1034, 1036 (1st Cir.1987), quoting Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977). In addition to state agencies and institutions, however, eleventh amendment immunity may also attach to suits against state officials "when the state is the real, substantial party in interest." Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984) (citation omitted). Thus, where a suit nominally against a state official would actually operate against the State, eleventh amendment immunity applies. See id.

In this instance, CIS would have us believe that the eleventh...