Morales v. St. Luke's Episcopal Hosp.

• Decision Date: 22 July 2004
• Docket Number: No. CIV.02-2088(DRD).,CIV.02-2088(DRD).
• Citation: 328 F.Supp.2d 192
• Parties: Oscar L. MORALES, et al., Plaintiff, v. ST. LUKE'S EPISCOPAL HOSPITAL, et al., Defendant.
• Court: U.S. District Court — District of Puerto Rico

328 F.Supp.2d 192

Oscar L. MORALES, et al., Plaintiff, v. ST. LUKE'S EPISCOPAL HOSPITAL, et al., Defendant.

No. CIV.02-2088(DRD).

United States District Court, D. Puerto Rico.

July 22, 2004.

Juan R. Rodriguez, Ponce, PR, for Plaintiffs.

Arnaldo Rivera-Seda, Esq., Ponce, PR, Gloria M. De Corral-Hernandez, Esq., San Juan, PR, Anselmo Irizarry-Irizarry, Esq., Ponce, PR, for Defendants.

OPINION AND ORDER

DOMINGUEZ, District Judge.

Pending before the Court is defendants' Motion For Partial Summary Judgment allegedly for failure to timely comply with the Statute of Limitations contemplated in Article 1868(2) of the Puerto Rico Civil Code. (Docket No. 27) After referring this matter to Magistrate Judge Camille Velez-Rive, a Report and Recommendation was issued, recommending this Court to grant the motion for Partial Summary Judgment. (Docket No. 41) The Magistrate Judge correctly indicated that any objections to the Report and Recommendation must be filed with the Clerk of Court within ten (10) days after being served with a copy thereof. See Fed.R.Civ.P. 72(b) and Local Rule 72(d). Plaintiffs did not file a motion challenging the conclusions reached in the Report and Recommendation within the proscribed ten (10) days. "Absent objection by the plaintiffs, [a] district court ha[s] a right to assume that [a party] agree[s] to the magistrate recommendation." Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985), cert. denied. 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Additionally, should the party wish to file a motion for leave to file an opposition at a later date, the party must submit said filing within the proscribed time given to file an opposition. Moreover," [f]ailure to raise objections to the Report and Recommendation waives that party's right to review in the district court and those claims not preserved by such objection are precluded on appeal." Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992). See also Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir.1994)(holding that objection are required when challenging findings actually set out in magistrate's recommendation, as well as magistrate's failure to make additional findings). After carefully examining the Report and Recommendation, the Court hereby find that Felicia LaFavor's and Oscar Morales' causes of action are to be DISMISSED with prejudice.

I. MAGISTRATE REPORT AND RECOMMENDATION

The District Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation. 28 U.S.C. § 636(b)(1)(B)(1993); FED.R.CIV.P. 72(b); Rule 503, Local Rules, District of Puerto Rico. See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). Of course, an adversely affected party may contest the Magistrate's report and recommendation by filing its objections within ten (10) days after being served a copy thereof. See Local Rule 510.2(A); FED.R.CIV.P. 72(b). Moreover, 28 U.S.C. § 636(b)(1), in pertinent part, provides that

Within ten days of being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which the objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the finding or recommendations made by the magistrate.

However, pursuant to Fed.R.Civ.P. 72(b), "[a]bsent objection by the plaintiffs, the district court had a right to assume that plaintiffs agreed to the magistrate's recommendation." Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985).

As no objections to the Report and Recommendations have been filed in this case, this Court need only satisfy itself that there is no plain error on the face of the record in order to accept an unopposed Report and Recommendation. See Douglass v. United Servs. Auto, Ass'n, 79 F.3d 1415, 1419 (5th Cir.1996)(en banc)(extending the deferential "plain error" standard of review to the unobjected to legal conclusions of the magistrate judge); Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir.1982)(en banc)(appeal from district court's acceptance of unobjected findings of magistrate judge reviewed for "plain error"); Nogueras-Cartagena v. United States, 172 F.Supp.2d 296, 305 (D.P.R.2001)("Court reviews [unopposed] Magistrate's Report and Recommendation to ascertain whether or not the Magistrate's recommendation was clearly erroneous")(adopting the Advisory Committee note regarding F ed.R.Civ.P. 72(b)); Garcia v. I.N.S., 733 F.Supp. 1554, 1555 (M.D.Pa.1990)("when no objections are filed, the district court need only review the record for plain error").

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Oscar L. Morales and Felicia LaFavor filed their complaint on July 17th, 2002 which was subsequently amended on December 10th, 2003 pursuant to 28 U.S.C. § 1332(a)(1), (c), and (d) and Article 1802 of the Puerto Rico's Civil Code. 31 P.R. Laws. Ann. § 5141. The plaintiffs bring three causes of action: (1) Injuries inflicted on the minor represented by plaintiff resulting from the actions by the defendants, (2) emotional distress on behalf of plaintiffs from injuries to their minor child, (3) emotional distress on behalf of minor's sister from injuries from her brother. The defendants are Saint Luke's Episcopal Hospital (herein referred to as `Hospital') and Dr. Jose Luis Ortiz Gonzalez. The complaint was also directed at Sindicato de Aseguradores De Impericia Medica, American International Insurance Company, John Doe and Richard Doe. The American International Insurance Company was voluntarily dismissed with prejudice from the case by all parties involved due to lack of privity with Saint Luke's Episcopal Hospital. (Docket No. 16) The facts are as follows: On June 21, 1999, plaintiffs' child was born prematurely by emergency cesarean section at defendant Hospital. The defendant Hospital discharged this child on July 18, 1999 without providing eye tests or giving referrals to an ophthalmologist. The defendant Hospital and it's employee, Dr. Jose Luis Ortiz Gonzalez, informed the plaintiffs that their child was in perfect health and was permitted to travel overseas to Costa Rica with the plaintiffs. (Docket Nos. 1, 26) In August of that year, a doctor in Costa Rica evaluated their child and diagnosed the child as having an advanced degree of ROP¹ and subsequently recommended to the plaintiff to see a retina specialist. The plaintiffs then traveled to Virginia in the United States and had emergency eye surgery performed on their child a month later. The child nevertheless lost his vision in one eye and had partial blindness in the other. The plaintiffs alleged negligence on the part of the defendant Hospital and sued for pain and suffering as a result of the incurred injury.

The defendants Hospital, et al, filed a motion for Partial Summary Judgment stating that the applicable statute of limitations barred the plaintiffs as parents from stating their claim of action. This motion was filed on February 20, 2004. (Docket No. 28) A belated response in opposition to this motion was filed on May 9, 2004 after the time allotted by Rule 56 of the Federal Rules of Civil Procedure has expired. (Docket Nos. 39, 40) The Court duly ruled that the opposition for summary judgment was considered waived. (Docket No. 36)

This matter was referred to Magistrate Judge Camille L. Velez-Rive for a Report and Recommendation and was filed on May 10, 2004. (Docket No. 41) The Magistrate Judge recommended that this Court grant the motion for Partial Summary Judgment. Since no objections will be considered, this court will grant the motion for Summary Judgment on satisfaction that the report on its face contains no plain error.

III. MOTION FOR SUMMARY JUDGMENT

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Pursuant to the language of the rule, the moving party bears the two-fold burden of showing that there is "no genuine issue as to any material facts," and that he is "entitled to judgment as a matter of law." Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir.1997). After the moving party has satisfied this burden, the onus shifts to the resisting party to show that there still exists "a trial worthy issue as to some material fact." Cortes-Irizarry v. Corporacion Insular, 111 F.3d 184, 187 (1st Cir.1997). A fact will deemed "material" if it potentially could affect the outcome of the suit. Id. Moreover, there will only be a "genuine" or "trial worthy" issue as to such a "material fact," "if a reasonable fact-finder, examining the evidence and drawing all reasonable inferences helpful to the party resisting summary judgment, could resolve the dispute in that party's favor." Id.

At all times during the consideration of a motion for summary judgment, the Court must examine the entire record "in the light most flattering to the non-movant and indulge all reasonable inferences in the party's favor." Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). There is "no room for credibility determinations, no room for the measured weighing of conflicting evidence such as the trial process entails, [and] no room for the judge to superimpose his own ideas of probability and likelihood..." Greenburg v. Puerto Rico Maritime Shipping Auth., 835 F.2d 932, 936 (1st Cir.1987). In fact, "[o]nly if the record, viewed in [this] manner and without regard to credibility determinations, reveals no genuine issue as to any material fact may the court enter...