Santiago Hodge v. Parke Davis & Co.

• Decision Date: 08 June 1988
• Docket Number: 87-1461,Nos. 86-2135,s. 86-2135
• Citation: 909 F.2d 628
• Court: U.S. Court of Appeals — First Circuit
• Parties: Mercedes SANTIAGO HODGE, et al., Plaintiffs, Appellees, v. PARKE DAVIS & COMPANY, et al., Defendants, Appellants. . Heard

Page 628

909 F.2d 628

Mercedes SANTIAGO HODGE, et al., Plaintiffs, Appellees, v. PARKE DAVIS & COMPANY, et al., Defendants, Appellants.

Nos. 86-2135, 87-1461.

United States Court of Appeals First Circuit.

Heard June 8, 1988.

Decided July 26, 1990.

Donald R. Ware, with whom Steven W. Phillips, Andrew Z. Schwartz, Foley, Hoag & Eliot, Charles P. Adams, and Brown, Newsom & Cordova, were on brief, for defendants, appellants.

Alvaro R. Calderon, Jr., with whom Jose L. Rodriguez-Mangual and Jose Julian Alvarez-Gonzalez, were on brief, for plaintiffs, appellees.

Before Bownes, Circuit Judge, Coffin, Senior Circuit Judge, and Torruella, Circuit Judge.

TORRUELLA, Circuit Judge.

This is an appeal from a judgment entered by the United States District Court for the District of Puerto Rico. Appellants Parke Davis Co. ("Parke Davis"), and two corporate officers of their subsidiary, Partab ("Labs"), claim that the district court erred in its application of Puerto Rico law and its denial of various motions. For the reasons stated below we affirm.

The facts of this case center around claims charging appellants with negligence in failing to provide a safe work place after appellees, employees or ex-employees, of Parke Davis' contraceptive pill production, suffered from estrogen contamination. These facts are reproduced in more detail in Santiago Hodge v. Parke Davis & Co., 859 F.2d 1026 (1st Cir.1988).

Appellants raise five issues: (1) whether the parent corporation is a "statutory employer" under Puerto Rico law and therefore immune from liability, (2) whether the officers of the employer corporation are immune from liability under Puerto Rico law, (3) whether the court erred in failing to conduct a thorough poll of the jury to verify the unanimity of the verdict, (4) whether the claims were barred by the applicable statute of limitations and (5) whether the claim of one of the plaintiffs should have been dismissed for failure to exhaust available administrative remedies.

DISCUSSION

I. IMMUNITY

A. Statutory Employer

Two questions were certified to the Supreme Court of Puerto Rico regarding the application of the statutory employer immunity to Parke Davis. The text of these questions and a detailed description of the Parke Davis and Labs relationship are contained in said certification. Santiago Hodge v. Parke Davis & Co, 859 F.2d 1026. Thereafter, in response to our query, on April 27, 1990, the Supreme Court of Puerto Rico issued an opinion, the official English translation of which is attached as an exhibit to this opinion.

Essentially, the Supreme Court of Puerto Rico certified that the "statutory employer" doctrine does not apply in a context where a parent corporation owns all the stock of its subsidiary, but each entity has its own legal identity, and the only agreements between them are to provide license and technical assistance. The court indicated that "for a parent company to be considered statutory employer of its subsidiary's employees, there must exist a piecework, project or service contract between both corporations compelling the parent company to pay the premiums to the State Insurance Fund in the event the subsidiary fails to do so." The Court found that the contractual relationship between the companies did not render Parke Davis a "statutory employer."

The district court found that, although Parke Davis had assumed responsibility for employee safety, it never assumed responsibility for paying insurance premiums to the State Insurance Fund ("SIF"). As such, the district court's denial of Parke Davis' claim of immunity is consistent with the Puerto Rico Supreme Court's determination. Therefore, we will not alter the result reached by the district court in that respect.

B. Corporate Officer's Immunity

Appellants also argue that corporate officers Charles H. Kupsky and Kenneth W. Larsen, each of whom served as president of Labs, were immune from corporate tort liability. Appellants allege that the workers' compensation immunity extends to an insured employer's corporate officers if they are sued for breach of the employer's nondelegable duty of providing its employees with a safe work-place.

After the jury found that Kupsky and Larsen were personally responsible for, or directly involved with providing employees a safe work environment and that they were negligent in performing this duty, the district court entered judgment against these officers. We agree that the district court applied the proper analysis to determine the corporate officers' liability.

In Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902 (1st Cir.1980), we clearly stated that a determination of the liability of corporate officers is a "function of tort law and has nothing to do with employer immunity under workmen's compensation." Id. at 907. Thus, the issue to be determined is whether the individuals in question were personally involved or responsible for the injuries. See also Santiago v. Becton Dickinson, 571 F.Supp. 904 (D.P.R.1983). Because reasonable minds could differ on the extent of the officers participation or negligence, this question is one that should be left to the trier of fact. Cf. Springer v. Seaman, 821 F.2d 871, 876 (1st Cir.1987) ("if reasonable persons might differ, the legal cause issue is determined by the factfinder.") (quoting Leboeuf v. Ramsey, 503 F.Supp. 747, 758 (D.Mass.1980), rev'd on other grounds, Costa v. Markey, 677 F.2d 158 (1st Cir.1982)).

In reviewing the denial of a judgment notwithstanding the verdict, this court will examine whether there is a reasonable basis in the record to support the jury's verdict. Borras v. Sea Land Service, 586 F.2d 881, 885 (1st Cir.1978). The transcripts show that these officers were personally involved in making safety matter decisions. Upon review of the record, there is sufficient evidence to support a finding that Kupsky and Larsen were personally involved, hence we agree with the district court's conclusion.

II. JURY POLLING

Appellants next argue that this court should reverse the district court and order a new trial based upon the district court's refusal to conduct a thorough poll of the jury. Prior to the return of the verdict, the court received a note from one of the jurors stating she was not in agreement with the "question" of damages and that she was answering the question only for purposes of the record. That note also was signed by the foreperson, who added that she and the other jurors did not share the opinion of the first juror. From a reading of these ambiguous notes it is possible to conclude that at the time they were written, there was lack of unanimity among the jurors. The verdict, however, was reached two hours after these notes were written.

The district court then proceeded to poll the jury. During these proceedings the district court ordered the verdict to be read aloud and instructed the jury to pay:

close attention to the verdicts as they're going to be published and read aloud in open court. And following publication of the verdict, the jury will be polled. That is each juror will be asked individually whether the verdict as published constitute [sic] his or her, as the case may be, individual verdict.

Thereafter, each and every one of the jurors was individually queried as to their concurrence with the verdict. All expressed their agreement. Appellants challenge the adequacy of this procedure.

To support their contention appellants cite various criminal cases ¹ in which trial courts have been reversed for their actions in polling jurors. United States v. Luciano, 734 F.2d 68, 70 (1st Cir.1984); Sincox v. United States, 571 F.2d 876 (5th Cir.1978). All of these are inapposite to the present circumstances. These are cases in which a juror expressed a lingering doubt during or after the polling, notwithstanding which, the judge persisted in treating the juror's answer as to the polling as unqualified, and hastened to announce a unanimous vote. In Luciano, the court concluded that the judge's error was that he dominated "the juror and counsel fully as much as if he raced to record a verdict, effectually foreclosing any opportunity to poll jurors." United States v. Luciano, 734 F.2d at 70. We disagree with appellants' contention that these cases have any relevance to the record made in the situation at bar.

In the instant case the district court was first confronted with the possibility that the verdict was not unanimous before the verdict was entered and therefore before the polling. Two hours of deliberation took place thereafter, between the receipt of the note and the verdict. Then, during the actual polling there was no representation of lingering doubts or equivocation in the result expressed by any of the jurors. Lastly, the record reveals that in polling the jury the district court, clearly followed Audette v. Isaksen Fishing Corp., 789 F.2d 956, 958-59 (1st Cir.1986), and ascertained that the verdict reached by the jurors was untainted and unanimous.

In Audette, this court stated that the purpose of a jury poll was to make certain that the jury had reached a unanimous and uncoerced verdict, i.e., to eliminate any uncertainty as to unanimity of the verdict. Id. at 70. In that case we also suggested our preference for individual polling and held that the trial court has "substantial discretion" to decide how to poll the jury. Audette v. Isaksen Fishing Corp., 789 F.2d at 959-60 (quoting United States v. Mangieri, 694 F.2d 1270, 1282 (D.C.Cir.1982). We find that, the district court's individual polling was within the scope of its discretion.

III. TIME BARRED CLAIMS

Appellants allege that appellees were aware of their injuries and the cause of those injuries several years prior to filing suit; thus the applicable statute of limitations barred their claims. They contend that as a matter of law the statute of limitations was triggered the moment that plaintiffs had the idea that their injuries were work...