Rodriguez-Suris v. Montesinos

• Citation: 935 F. Supp. 71
• Decision Date: 19 August 1996
• Docket Number: Civil No. 93-2236 (DRD),93-2237 to 93-2239.
• Parties: Edna RODRÍGUEZ-SURÍS, et al., Plaintiffs, v. Bertha MONTESINOS, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

935 F. Supp. 71

Edna RODRÍGUEZ-SURÍS, et al., Plaintiffs, v. Bertha MONTESINOS, et al., Defendants.

Civil Nos. 93-2236 (DRD), 93-2237 to 93-2239.

United States District Court, D. Puerto Rico.

August 19, 1996.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Luz I. Gonzalez-Turull, San Juan, PR, Kevin G. Little, David Efron Law Offices, Rio Piedras, PR, Raymond P. Burgos-Santiago, Pinto-Lugo & Rivera, Old San Juan, PR, for Edna Rodríguez-Surís, Rafael Padilla-Rojas.

Kevin G. Little, David Efron Law Offices, Rio Piedras, PR, for all plaintiffs.

Luz I. Gonzalez-Turull, San Juan, PR, Kevin G. Little, David Efron Law Offices, Rio Piedras, PR, Juan R. Zalduondo-Viera, Hato Rey, PR, Harold D. Vicente-Gonzalez, Vicente & Cuevas, Fernandez Juncos Sta, Santurce, PR, for Vanessa Fernández, Juan R. Fernández, Conjugal Partnership Fernández-Fernández, María R. Gonzalez De Cortes, Rafael Cortes-Dapena, Conjugal Partnership Cortes-González, Annette P. Pedreira, Walter M. Pedreira, Conjugal Partnership Pedreira-Pedreira.

Luis R. Rivera-Rodriguez, Hato Rey, PR, for Bertha Montesinos.

OPINION AND ORDER

DOMINGUEZ, District Judge.

In this diversity tort action, co-defendant Collagen Corporation¹ ("Collagen") filed a motion for summary judgment (Docket # 55) in which Collagen argues that: 1) plaintiffs' claims against Collagen are preempted by the Medical Device Amendments to the Food, Drug and Cosmetics Act of 1976 ("MDA"), 21 U.S.C. § 360k; 2) plaintiffs' damages were caused by an unforeseeable misuse of Collagen's product by co-defendant Bertha Montesinos² ("Montesinos") for which Collagen cannot be held liable; and 3) plaintiffs' complaints are time-barred by the statute of limitations. Plaintiffs filed an opposition (Docket #62) to Collagen's motion, to which Collagen replied (Docket # 67).

Collagen had previously filed a motion for summary judgment (Docket # 11) on June 28, 1994, petitioning the Court to decide the identical preemption argument as presented in this motion. The Court denied the motion on August 9, 1994 (Docket #20).³ Because the one-year limitation term expired prior to the time plaintiffs filed the instant action, the Court now grants Collagen's motion for summary judgment denying plaintiffs' claims as time-barred. Further, because the claims against Montesinos appear to be equally vulnerable to the statute of limitations defense, the Court hereby grants plaintiffs twenty (20) days, which term will expire on September 10, 1996, to show cause why the Court should not grant summary judgment in favor of Montesinos on the grounds that all of the plaintiffs' claims against her are also time-barred.

I — BACKGROUND

Collagen manufactures and distributes products made from a purified form of bovine (cow) collagen developed in the early seventies by a group of biochemists and physicians at Stanford University. Collagen is a natural protein found throughout the body which provides support for skin, muscle, tendons and bone tissues. Fibers of collagen are woven together like threads in a fabric to form a framework into which new cells may grow. Due to the similarities between the collagen in cows and that found in human skin, bovine collagen has been used in various medical applications such as sutures and heart valves. Two of Collagen's bovine collagen products, Zyderm and Zyplast, are injected under the skin to correct or improve soft tissue deficiencies that may have arisen in the human body. Zyderm and Zyplast are regulated under the MDA, pursuant to which Congress granted the Food and Drug Administration ("FDA") regulatory authority over medical devices.⁴ 21 U.S.C. § 360c-l. By its terms, the MDA applies solely to medical devices, not to drugs, cosmetics, or foods. Id. Zyderm, Zyderm Implant II, and Zyplast are classified as class III medical devices by the FDA. 21 U.S.C. § 360c(a)(1)(C). These devices require FDA approval and may only be sold to and used by trained and approved physicians. 21 U.S.C. § 360c-j. By June 1985, Collagen had received FDA approval to market Zyderm, Zyderm Implant II, and Zyplast. During 1991 and 1992, the FDA conducted another review of Collagen's premarket approval application ("PMA") to assess the adequacy of the safety and effectiveness of the information therein, as well as the appropriateness of the FDA approval decision. 21 U.S.C. § 360c(a)(1). After a thorough review, the FDA concluded that its initial approval of the Zyderm PMA was appropriate.

Between the months of July and November of 1989, plaintiffs,⁵ separately and independently, went to Montesinos' apartment located at 1367 Wilson St., Santurce, Puerto Rico, where Montesinos administered the collagen injections, which are the subject of this action. Montesinos is not a licensed physician and represented herself as a cosmetologist. The only material Montesinos admits injecting into the plaintiffs is Zyderm which she obtained from a licensed physician in Miami, Doctor Mario Aguado, without Collagen's knowledge or authorization.⁶ (Docket #62 Exh. 3 p. 21, Montesinos' deposition). After receiving their respective injections, each of the plaintiffs developed hard nodules, reddish in color, at the sites of the injections. Montesinos told the plaintiffs that the irritation and nodules were temporary and would eventually disappear. On the contrary, the nodules persisted and remained hard. Consequently, this action was filed against Montesinos and Collagen on September 1, 1993, almost four (4) years after plaintiffs' received their injuring injection.

II — ANALYSIS

A. THE SUMMARY JUDGMENT STANDARD

Both plaintiffs and defendants in their motions refer to documents (i.e., depositions, medical reports, letters, etc.) outside the pleadings. Because the Court shall consider these supplementary materials, the summary judgment standard is the appropriate standard. See Garita Hotel Ltd. v. Ponce Federal Bank, 958 F.2d 15, 19 (1st Cir.1992).⁷

A district court may grant summary judgment when the requisite documents that possess evidentiary force "show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). See McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995), (citing Coyne v. Taber Partners I, 53 F.3d 454, 457-58 (1st Cir.1995)). The intricacies and general standards of Rule 56 have been documented by the First Circuit Court of Appeals in a "cascade of cases."⁸ "Once a properly documented motion has engaged the gears of Rule 56, the party to whom the motion is directed can shut down the machinery only by showing that a trial worthy issue exists." McCarthy, 56 F.3d at 315 (citing National Amusements, 43 F.3d at 735). "In applying these criteria, we recognize that `genuineness and materiality are not infinitely elastic euphemisms that may be stretched to fit whatever pererrations catch a litigant's fancy.'" See Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 253 (1996) (citing Blackie v. Maine, 75 F.3d 716, 721 (1st Cir. 1996)).

A material fact is one that might affect the outcome of the suit under the governing law. "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Medina-Muñoz, 896 F.2d at 8 (emphasis in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). See also Woods v. Friction Materials, Inc., 30 F.3d 255, 259 (1st Cir.1994). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. Hence, in applying these criteria, the Court is to consider that "not every genuine factual conflict necessitates a trial. It is only when a disputed fact has the potential to change the outcome of the suit under the governing law, if found favorably to the nonmovant, that the materiality hurdle is cleared." Martínez v. Colón, 54 F.3d 980, 984 (1st Cir.1995) (citing United States v. Plat 20, Lot 17, 960 F.2d at 204). At this juncture, we need not say more than summary judgment will proceed if the record, even when taken in the aspect most favorable to the nonmoving party, fails to yield a trialworthy issue as to some material fact.⁹Coyne, 53 F.3d at 457.

Consistent with the summary judgment standard, "we canvass the material facts in a light that flatters, but does not impermissibly distort," the nonmoving party's claims, and indulge all inferences in favor of that party.¹⁰ Because in the instant case there are no genuine issues of material fact, what remains to be decided are questions of law.¹¹ Summary Judgment is therefore appropriate.

B. THE STATUTE OF LIMITATIONS STANDARD

In this diversity tort action the statute of limitations is substantive law, therefore Puerto Rico law controls. See Erie v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938); Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); Coyne, supra at 457; and Daigle v. Maine Medical Center, 14 F.3d 684, 689 (1st Cir.1994). Puerto Rico's Civil Code provides that actions for obligations arising from fault or negligence prescribe one year from the moment aggrieved person has knowledge of the injury; that is to say, the statute of limitations provides a one-year term for a tort action. P.R.Laws Ann. tit. 31, § 5298 (1990). The term is interrupted by an extrajudicial claim, acknowledgment of the debt, or filing of a complaint. P.R.Laws Ann. tit. 31, § 5303 (1990). See also Silva-Wiscovich v. Weber Dental Mfg. Co., 119 P.R. Dec. 550 (1987); Díaz de Diana v. A.J.A.S. Ins. Co., 110 P.R. Dec. 471, 474 (1980).

The general rule is that the one-year "term does not start to run from the occurrence of the negligent act or damage, but from the moment the damage is known." Barretto Peat, Inc. v. Luis...