Rubert-Torres v. Hospital San Pablo, Inc, et. al.

• Decision Date: 01 November 1999
• Docket Number: CINTRON-RUBER,IN,P,No. 98-2346,RUBERT-TORRE,98-2346
• Citation: 205 F.3d 472
• Parties: (1st Cir. 2000) JOSEFINAREPRESENTATION OF HER MINOR DAUGHTER, KIMAYRAlaintiffs, Appellants, v. HOSPITAL SAN PABLO, INC., ET AL., Defendants, Appellees. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 472

205 F.3d 472 (1st Cir. 2000)

JOSEFINA RUBERT-TORRES, IN REPRESENTATION OF HER MINOR DAUGHTER, KIMAYRA CINTRON-RUBERT, Plaintiffs, Appellants, v. HOSPITAL SAN PABLO, INC., ET AL., Defendants, Appellees.

No. 98-2346

United States Court of Appeals for the First Circuit

Heard November 1, 1999

Decided March 6, 2000

[Copyrighted Material Omitted] Kevin G. Little, with whom David Efron and Law Offices of David Efron were on brief, for appellants.

Federico R. Ducoudray-Acevedo, with whom Law Offices Jimenez & Santoni was on brief, for appellee Hospital San Pablo.

Elisa M. Figueroa-Baez, with whom Law Offices Sigrid Lopez Gonzalez was on brief, for appellee Nestor Rivera-Cotte.

Before Torruella, Chief Judge, Wallace,^* Senior Circuit Judge, and Lynch, Circuit Judge.

WALLACE, Senior Circuit Judge.

Josefina Rubert-Torres appeals from the district court's summary judgment in favor of one defendant and from the judgment entered upon a jury verdict for the other defendant. The district court had jurisdiction pursuant to 28 U.S.C. § 1332, and we have jurisdiction over Rubert-Torres' timely appeal pursuant to 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand for further proceedings.

I.

Rubert-Torres brought this medical malpractice action on behalf of her daughter Kimayra Cintron-Rubert, a 21 year-old woman with cerebral palsy, against Dr. Nestor Rivera-Cotte, the doctor who delivered Kimayra, and Hospital San Pablo (Hospital), where Kimayra was born. Before trial, the district court entered summary judgment for the Hospital. At trial, Rubert-Torres' theory, supported by an obstetrical/gynecological (OB/GYN) expert and a neurological expert, was that physician error during her pregnancy and delivery of Kimayra caused Kimayra's disabilities. Dr. Rivera-Cotte's theory, supported by his own OB/GYN, neurological, and genetics experts, was that Kimayra's disabilities arose genetically. The jury returned a verdict for Dr. Rivera-Cotte.

II.

Rubert-Torres first contends that the district court erred in entering summary judgment sua sponte in favor of the Hospital. This argument is slightly misworded. The district court did not enter summary judgment sua sponte; rather, it converted the Hospital's motion for judgment on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c), into a motion for summary judgment because Rubert-Torres attached an expert witness report to her opposition to the motion to dismiss. We review whether the district court properly converted a Rule 12 motion into a motion for summary judgment for abuse of discretion. See Whiting v. Maiolini, 921 F.2d 5, 6 (1st Cir. 1990). Significantly, Rubert-Torres only makes this procedural argument against the entry of summary judgment; she does not contest the merits of the district court's decision.

We first recite the relevant facts. Rubert-Torres filed the complaint on July 14, 1996; the Hospital answered on October 7, 1996. Discovery started, and two scheduling conferences were held, with all parties represented, on November 26, 1996, and on April 30, 1997. At the second conference, the Hospital requested that Rubert-Torres support her allegations against it with specific facts, which she failed to do. At that point, discovery was apparently well underway: Rubert-Torres had received four expert witness reports and 20 years of medical records, interrogatories had been filed, and depositions taken.

When Rubert-Torres failed to support her allegations against the Hospital with specific facts, the Hospital filed a motion on May 7, 1997, for judgment on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c). Rubert-Torres filed an opposition to the motion on May 14, 1997, including with it an expert witness report derived from discovery. On August 15, 1997, the district court, without previously providing notice, converted the motion for judgment on the pleadings into a motion for summary judgment, relied on the expert report, and entered an order for summary judgment in favor of the Hospital.

Rule 12(c) provides, in part:

If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Fed. R. Civ. P. 12(c). In this regard, the rule is identical to Rule 12(b)(6), see Collier v. City of Chicopee, 158 F.3d 601, 603 (1st Cir. 1998), and relevant Rule 12(b)(6) case law on conversion assists this Rule 12(c) conversion case.

Conversion of a motion for judgment on the pleadings into one for summary judgment should only occur after the parties have been offered a "reasonable opportunity" to present pertinent summary judgment materials. Fed. R. Civ. P. 12(c). Whether the parties had an "opportunity to respond necessarily turns on the way in which the particular case under consideration has unfolded." See Whiting, 921 F.2d at 6. Thus, we have disfavored conversion when (1) the motion comes quickly after the complaint was filed, (2) discovery is in its infancy and the nonmovant is limited in obtaining and submitting evidence to counter the motion, or (3) the nonmovant does not have reasonable notice that a conversion might occur. See id. at 7.

In this case, however, these considerations are not present. The Rule 12(c) motion came 10 months after the complaint -- and subsequent to the Hospital's request that Rubert-Torres support her allegations. There had been substantial discovery. Finally, Rubert-Torres was on constructive notice that conversion could occur. Explicit notice is not required. See Collier, 158 F.3d at 603; C.B. Trucking, Inc. v. Waste Management, Inc., 137 F.3d 41, 43 (1st Cir. 1998). Rubert-Torres had constructive notice because she presented the district court with additional materials in her opposition memorandum. As we recently held, "a party receives constructive notice that the court has been afforded the option of conversion . . . when . . . the non-movant appends . . . materials [outside the pleadings] to [an] opposition and urges the court's consideration of them." Collier, 158 F.3d at 603. When a plaintiff incorporates materials outside the pleadings into an opposition to a Rule 12(c) motion, the plaintiff "implicitly invite[s] conversion -- and a party who invites conversion scarcely can be heard to complain when the trial court accepts the invitation." Id.; see also Maruho Co., Ltd. v. Miles, Inc., 13 F.3d 6, 8 (1st Cir. 1993) (holding conversion proper when plaintiff presented information outside the pleadings to the district court in opposition to a motion to dismiss).

Rubert-Torres argues that she did not invite the district court to convert the Rule 12(c) motion into a summary judgment motion because the attaching of the expert report was for the limited purpose of indicating "that further details regarding her claim against Hospital San Pablo had been provided in discovery." Her assertion is a stretch. In her response to the Hospital's Rule 12(c) motion, Rubert-Torres stated that the contentions in the motion were "more properly framed as a motion for a more definite statement under Federal Rule of Civil Procedure 12(e)," and that to "the extent that Hospital San Pablo's motion is in effect a 12(e) motion, it has been mooted by the provided report of plaintiff's obstetrical expert, Dr. Bernard Nathanson." However, Rubert-Torres not only relied upon Dr. Nathanson's report for the limited purpose of refuting the Hospital's motion, to the extent that it was a 12(e) motion, she also used it to argue the merits of the Rule 12(c) motion, stating: "The departures from the applicable standard of care identified by Dr. Nathanson show that Hospital San Pablo failed to comply with its legal duties under Puerto Rico law." This statement directly responded to the Hospital's contention that, pursuant to applicable law, it was not liable for Kimayra's condition, and implicitly invited the district court to consider the expert report for Rule 12(c) purposes.

It is true, as Rubert-Torres argues, that not every attachment to a Rule 12(c) motion or opposition thereto requires conversion into a motion for summary judgment. See Beddall v. State Street Bank and Trust Co., 137 F.3d 12, 17 (1st Cir. 1998); Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). However, in this situation, Rubert-Torres invited the district court to consider Dr. Nathanson's report in its ruling on the merits of the Rule 12(c) motion, and thus invited the court to convert the Rule 12(c) motion into one for summary judgment. See Collier, 158 F.3d at 603; Fed. R. Civ. P. 12(c). The district court did not abuse its discretion when it accepted that invitation.

III.

Rubert-Torres also raises numerous arguments in favor of a new trial against Dr. Rivera-Cotte. We address two of those arguments -- that Kimayra was improperly excluded from the courthouse, and that she should have been allowed to appear for a physical demonstration during questioning of an expert witness.

A.

Kimayra was present on the first day of trial and was briefly introduced to the pool of potential jurors before jury selection. Her attorney explained to the potential jurors that "she will not be with us in the trial for obvious reasons for a lot of the trial, but she is entitled to be here." He also explained that she would not be present during jury selection because she "was getting a little restless" at the time and they did not want her "to disrupt the proceedings."

Shortly thereafter, the district court banned Kimayra from the courtroom during opening statements. The record reflects that her attorneys did not request and the district court did not offer, a reason for the decision. Then, apparently off the record in chambers, the district court banned Kimayra not only from the...