Flores-Perez v. Rodriguez-Del Rio
| Decision Date | 25 November 2020 |
| Docket Number | Civil No. 17-2214 (ADC) |
| Parties | LINDA FLORES-PEREZ, et al., Plaintiffs, v. DR. FELIX RODRIGUEZ-DEL RIO, et al., Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Before the Court are co-defendant Dr. Nelson Guilbe's ("Dr. Guilbe") motion for summary judgment, memorandum of law, statement of uncontested material facts, and supporting documents. ECF Nos. 72, 73, 74, 76, 78.1 Plaintiffs filed a response and a statement of additional facts. ECF Nos. 101, 102, 103. Dr. Guilbe replied. ECF No. 120.
For the following reasons, the Court DENIES WITHOUT PREJUDICE co-defendant Dr. Guilbe's motion at ECF No. 72.
Plaintiff Linda Flores-Pérez ("Flores-Pérez") "was submitted to a left-foot surgery on October 3, 2016 but upon waking up at the recovery room complained, amongst other, to anesthesiologist[,] doctor Guilbe[,] that her right shoulder hurt, which required posterior intervention...to correct said complication." ECF No. 72 at 2. On September 18, 2017, Flores-Pérez and her husband, Rafael Borrero-Coris ("Borrero-Coris,"or jointly "plaintiffs"), filed a complaint ("complaint") against Dr. Félix Del Río, his wife fictitiously named "Jane Doe," and the conjugal partnership formed between them and Hospital Metropolitano.Other "[d]efendants with the fictitious names of John Doe and Richard Doe are included to represent persons and/or entities whose name and identities are presently unknown and that are also responsible for the damages alleged in this Complaint, including the Hospital Metropolitano regular staff and operating room staff." ECF No. 1 at 2.
On July 23, 2018, plaintiffs moved for leave to amend the complaint. ECF No. 17. Plaintiffs asserted that "[a]s part of the discovery process, plaintiffs were informed that Dr. [] Guilbe (anesthesiologist) was a potential witness for the case..." ECF No. 17 at 1. They added "[t]oday we were able to confirm that Dr. Guilbe was actually part of the operating room team mentioned in paragraph 3.1 of the complaint." Id at 2. Plaintiffs also asserted not knowing until that date, that Dr. Guilbe was not an employee of Hospital Metropolitano, but rather employed by a corporation named M&G Anesthesia PSC. Id. Accordingly, plaintiffs sought leave to amend the complaint in order to "include" them both as defendants. Id. On July 27, 2018, the Court granted leave to amend the complaint at ECF No. 18.
On July 31, 2018, plaintiffs filed the amended complaint, at ECF No. 19, ("amended complaint") which included Dr. Guilbe and M&G Anesthesia PSC as defendants. Notably, however, plaintiffs left unaltered the paragraph including the defendants with fictitious names described as the "regular staff and operating room staff" as it was originally drafted in the complaint. ECF No. 19 at 3. Dr. Guilbe filed his answer to the amended complaint on November 12, 2018. ECF No. 26. Among other defenses, Dr. Guilbe stated that "[t]he amended complaint is time barred." Id at 13.
On February 14, 2020, Dr. Guilbe filed a motion for summary judgment, a statement of uncontested material facts, and a memorandum of law. ECF Nos. 72, 73, 74, 76, 78. Dr. Guilbe asserts "there is no genuine dispute as to the material fact that [Flores-Pérez] knew his identity and his name since the date of the pre-anesthesia evaluation that was carried out before the date of the surgery, and at the date of the surgery[,]" October 3, 2016. ECF No. 72 at 3 (emphasis added). Specifically, he purports that Flores-Pérez complained to none other than Dr. Guilbe about her arm right after surgery. Despite that fact, the argument goes, plaintiffs joined Dr. Guilbe months after the applicable statute of limitations had elapsed. Id.
Dr. Guilbe further argues that the inclusion of the fictitious named defendants in the original complaint and the amendment to the complaint do not trigger "the relation back of amendments provision included in Fed. R. Civ. 15(c)(1)." ECF No. 72 at 2. In Dr. Guilbe's view, ECF No. 74 at 11. Therefore, Dr. Guilbe argues that "by the time he was joined for the first time as a codefendant thru the filing of the amended complaint, plaintiffs' medical malpractice cause of action was time barred." Id.
On March 16, 2020, plaintiffs filed their response to Dr. Guilbe's motion for summary judgment, a statement of uncontested facts, and a statement of additional facts. ECF Nos. 102, 102, 103, 110. While admitting that Dr. Guilbe was in fact Flores-Pérez' anesthesiologist during the surgery, plaintiffs claim they never "heard the name Dr. Guilbe" before December 15, 2017, when co-defendant Hospital Metropolitano tendered its answer to written discovery and initial disclosures. ECF No. 103 at 1. Before confirming Dr. Guilbe's "identity" on July 23, 2018, to plaintiff "he was just the 'coffee colored skin' anesthesiologist." Id at 6. Therefore, according to plaintiffs, July 23, 2018 "is the date where the one-year clock starts." Id. Even if the Court deemed December 15, 2017-date when Flores-Pérez allegedly hears Dr. Guilbe's name for the first time-as the date that triggers the statute of limitations in this case, the amended complaint was filed within the one-year statute of limitation. Id at 6.
Finally, as to the issue of the "relating back amendment", plaintiffs only purports that the Id at 7.
Dr. Guilbe docketed his reply on May 5, 2020. ECF No. 120. In it, Dr. Guilbe underscores that plaintiffs' response focuses on their alleged unawareness of the anesthesiologist's "name," "which turns out to be irrelevant in analyzing [plaintiffs'] plea to trigger back the filing of [their] amended complaint to the date of the filing of the original complaint." ECF No. 120 at 2. The relevant inquiry, Dr. Guilbe contends, "rests upon whether Flores[-Pérez] knew the identity of [Dr.] Guilbe, which she did, since she knew before and after the surgery that he was an 'anesthesiologist' and described him as a coffee colored skin individual." Id at 3. Because plaintiffs cannot claim that "but for a mistake in identity plaintiff would have named the substituting defendant in the original pleading," Dr. Guilbe sustains plaintiffs failed to meet Fed. R. Civ. P. 15(c)(1). Corey Lanuza v. Medic Emergency Specialties, Inc., 229 F.Supp.2d 92, 102 (D.P.R. 2002) (citing Leonard v. Parry, 219 F.3d 25 (1st Cir. 2000)).
Dr. Guilbe also challenges plaintiffs' response statement at ECF No. 101 claiming that most of the statements constitute an "improper qualification," which do not belong in a Fed. R. Civ. P. 56 response statement. ECF No. 120 at 5; 6-13. Finally, Dr. Guilbe requests plaintiffs' verified statement (ECF Nos. 101-1 at 25, 102-1 at 25, 103-1 at 25) be stricken from the record as a sham affidavit. ECF No. 120 at 16.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A 'genuine' issue is one that could be resolved in favor of either party, and a 'material fact' is one that has the potential of affecting the outcome of the case." Calero-Cerezo v. United States Dept. of Justice, 355 F.3d 6, 19 (1st Cir. 2004); Murray v. Warren Pumps, LLC, 821 F.3d 77, 83 (1st Cir. 2016) (citations omitted); see Fed. R. Civ. P. 56(a). Although the Court states the facts in the light most favorable to the party against whom summary judgment is entered, the Court is still required "to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed." Adria Int'l Grp., Inc. v. Ferre Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001) (citation omitted).
In order to defeat a properly supported motion for summary judgment, the non-moving party must set forth facts showing that there is a genuine dispute for trial. Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir. 2011). "When a non-moving party fails to file a timely opposition to an adversary's motion for summary judgment, the court may consider the summary judgment motion unopposed, and take as uncontested all evidence presented with that motion." Pérez-Cordero v. Wal-Mart Puerto Rico, 440 F.3d 531, 533-34 (1st Cir. 2006) (citing NEPSK, Inc. v. Houlton, 283 F.3d 1, 7-8 (1st Cir. 2002)). The Court must still scrutinize the summary judgment motion under the terms of the Federal Rules of Civil Procedure but, "[i]n most cases, a party's failure to oppose summary judgment is fatal to its case." Id. at 534.
L. Civ. R. 56(c) states, in pertinent part, "[a] party opposing a motion for summary judgment shall submit with its opposition a separate, short, and concise statement of material facts." Id. As discussed herein, plaintiffs' opposing statements are replete with supplemental information in clear violation of applicable rules. See Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 57 (1st Cir. 2011) ().
Moreover, L. Civ. R. 56(e) provides that "[f]acts 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. . . The [C]ourt shall have no independent duty to search or consider any part of the record not specifically referenced by the parties' separate...
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