
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2214                   MARTA NIEVES, IN REPRESENTATION AND ON BEHALF OF                      HER MINOR SON ANGEL LUIS HERNANDEZ NIEVES,                                Plaintiff, Appellant,                                          v.                          UNIVERSITY OF PUERTO RICO, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________             David Efron with whom Law Offices of David Efron was on brief for             ___________           __________________________        appellant.             Efren T. Irizarry-Colon with whom  Elisa M. Figueroa-Baez was  on             _______________________            ______________________        brief for appellees.                                 ____________________                                   October 18, 1993                                 ____________________                    CYR, Circuit  Judge.   Marta Nieves appeals  a district                    CYR, Circuit  Judge.                         ______________          court order dismissing the medical malpractice action she brought          in  behalf of her minor  son Angel Luis  Hern ndez Nieves against          Angel  Gelp , M.D., and  Gonz lez Recio, M.D.,  whom the district          court found immune from suit pursuant to P.R. Laws  Ann. tit. 26,            4105.  We affirm.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                    We  recite the  facts in  the light  most favorable  to          plaintiff.    See  Goldman,  Antonetti,  Ferraiuoli,  Axtmayer  &                        ___  ______________________________________________          Hertell v. Medfit Int'l,  Inc., 982 F.2d 686, 689 (1st Cir. 1993)          _______    ___________________          (summary judgment).  In December  1983, Marta Nieves entered  the          Federico Trilla Hospital ("the  Hospital"), a privately owned and          operated medical facility in  Puerto Rico.  Appellee  Angel Gelp           and Jose Mel ndez, medical residents under the supervision of the          attending physician,  Dr.  Ailed Gonz lez  Recio,  undertook  the          delivery of Nieves' son Angel.  The three physicians were affili-          ated with the  University of Puerto Rico  Medical School ("UPR").          Later,  Angel  was diagnosed  with  serious  physical and  mental          impairments,  allegedly  attributable   to  asphyxiation   during          childbirth.                    In December  1990, Nieves, by  that time a  resident of          Florida, brought this diversity  action against, inter alia, UPR,                                                           _____ ____          Drs.  Gelp   and Gonz lez  Recio,  and  their insurers,  alleging                                          2          professional  negligence.  See P.R.  Laws Ann. tit.  31,    5141-                                     ___          5142.1   Defendants answered and  moved to dismiss  the complaint          pursuant to Fed. R. Civ.  P. 12(b)(1) and 12(b)(6).  UPR,  noting          its  status as  an  "arm" of  the  Commonwealth of  Puerto  Rico,          asserted its  Eleventh Amendment immunity  from unconsented suit,          see Perez v. Rodriguez Bou, 575  F.2d 21, 25 (1st Cir. 1978), and          ___ _____    _____________          its insusceptibility  to federal diversity jurisdiction, see Moor                                                                   ___ ____          v. County of Alameda, 411 U.S. 693, 717 (1973).             _________________                    The two  appellees, who claimed to  be UPR "employees,"          hence  physicians employed  by the  Commonwealth, relied  on P.R.          Laws Ann. tit. 26,   4105 (Supp. 1989) as a basis for dismissal:                    No health service professional may be includ-                    ed as a defendant in a civil suit for damages                    due to malpractice  caused in performance  of                    his  profession  while  said  health  service                    professional  acts  in  compliance  with  his                    duties  and functions as  an employee  of the                    Commonwealth  of  Puerto Rico,  its dependen-                    cies, instrumentalities and municipalities.          Id.  Section  4105, a provision of Act No.  74 of 1976, otherwise          ___          known as the Medico-Hospital Professional Liability Insurance Act          (MHPLIA), was enacted to  alleviate the severe malpractice insur-          ance  crisis facing Puerto Rico.  See generally Enr quez P rez v.                                            ___ _________ ______________          Fern ndez,  108  P.R.  Dec. 674,  677-80  (1979).   The  appellee          _________          doctors  contend that  any  patient injured  by the  professional          negligence  of a  physician  covered by  section  4105 has  legal          recourse only  against the  physician's employer, or  the Common-                                        ____________________               1The  original  complaint  also  named  Dr.  Fern ndez,  the          admitting physician, and Dr. Mel ndez, but Nieves dismissed as to          Fern ndez and failed to serve Mel ndez.                                          3          wealth, which  is immune  from compensatory damages  liability in          excess of $75,000, see P.R. Laws Ann. tit. 32,   3077(a), and, in                             ___          any event, not amenable to suit in federal court.2                    On January 31, 1992, following eight months  of discov-          ery,  Nieves  filed  her  opposition to  the  motion  to dismiss.          Nieves contended that section  4105 violated the Equal Protection          Clause  and the Due Process Clause of the United States Constitu-          tion and their  counterpart clauses in the Puerto  Rico Constitu-          tion.  Alternatively, Nieves argued that there remained a genuine          issue of material  fact with  respect to whether  Drs. Gelp   and          Gonz lez  Recio were  UPR  "employees" entitled  to section  4105          immunity, or  merely "independent contractors"  employed pursuant          to a contract between the Hospital and UPR.                    On the same day that Nieves filed her opposition to the          motion to  dismiss, the district court dismissed the complaint as          to all defendants.3   Three weeks later, however, the  two appel-          lee  physicians filed a  "reply" to Nieves'  opposition, to which          they attached  a sworn statement by a UPR dean attesting that Dr.          Gonz lez Recio was an "employee" of the UPR medical school campus                                        ____________________               2Insurers are  insulated from  liability to the  same extent          their  insured physicians  are entitled  to   4105  immunity. See                                                                        ___          Lind  Rodr guez v. Commonwealth of Puerto Rico, 112 P.R. Dec. 67,          _______________    ___________________________          68 (1982)  (  4105  immunity  not a  personal  defense,  but  the          "inexistence  of a cause of action,"  so that "the insurer is not          liable").               3The district court  granted Nieves'  request for  voluntary          dismissal of the complaint against  UPR for lack of jurisdiction.          See  Fed. R. Civ.  P. 41(a)(2).  A  Rule 12(b)(1) dismissal would          ___          not bar suit against UPR in the Commonwealth courts.  See Costel-                                                                ___ _______          lo  v. United  States, 365  U.S. 265,  285 (1961)  (Rule 12(b)(1)          __     ______________          dismissal not disposition on merits).                                          4          in December 1983, and that Dr. Gelp  was a "resident"  in the UPR          medical  graduate program.    On April 7,  1992,  Nieves filed  a          motion for clarification  and reconsideration, expressing concern          that the district court overlooked the arguments presented in the          opposition memorandum she filed the  day the court dismissed  the          complaint.  The district court denied the motion to reconsider.                                          II                                          II                                      DISCUSSION                                      DISCUSSION          A.   Constitutionality of Section 4105.          A.   Constitutionality of Section 4105.               _________________________________                    Nieves contends  that section  4105 violates the  equal          protection and due process  clauses of the Puerto  Rico Constitu-          tion4  because it (1)  discriminates against "poor"  people    an          inherently "suspect" class  under Puerto Rico constitutional  law               who have no economic  option but to use  the low-cost public          health services  provided by  physicians employed by  the Common-          wealth,  or (2)  divests  all patients  treated by  Commonwealth-          employed physicians of a "fundamental" constitutional right; that          is, the right to recover  full compensatory damages for  injuries                                    ____                                        ____________________          caused by physician negligence.5   Nieves argues, therefore, that               4Article  II, section  7, of  the Commonwealth  constitution          provides:   "The right to life, liberty and enjoyment of property          is recognized as a  fundamental right of man.   The death penalty          shall not exist.   No person shall be deprived  of his liberty or          property without  due process of law.   No person in  Puerto Rico          shall  be denied equal protection  of the laws. . . ."    Article          II, section  1, provides:   "The dignity  of the  human being  is          inviolable.  All men are equal before the law.  No discrimination          shall  be  made on  account of  race,  color, sex,  birth, social          origin or condition, or  political or religious ideas.   Both the          laws  and  the system  of  public  education shall  embody  these          principles of essential human equality."               5On appeal,  Nieves has  abandoned the equal  protection and          due process arguments premised on the United States Constitution.                                          5          her constitutional challenges require  us to subject section 4105          to "strict  scrutiny."   She requests  that the  district court's          interpretation of Puerto  Rico law  be set aside,  or that  these          constitutional questions be certified  to the Puerto Rico Supreme          Court.  See P.R. Laws Ann. tit. 4, App. I-A, Rule 27(a).6                  ___                    Under  Puerto Rico law, a statutory classification that          "affects fundamental rights of the citizen or is intended against                   ___________ ______          a suspect  classification" is  subjected to "strict  scrutiny," a            _______  ______________          heightened standard under which the Commonwealth must demonstrate          "a compelling state  interest which justifies the  classification          and that the [classification] necessarily encourages  the attain-          ment of that interest."  Zachry Int'l of Puerto Rico v.  Superior                                   ___________________________     ________          Court  of Puerto Rico, 104 P.R. Dec. 267, 277-78 (1975) (emphasis          _____________________          added).   We  have been  unable to  find a  reported Puerto  Rico          decision squarely addressing  the constitutional questions raised          by Nieves.  The cases cited by appellees, and presumably endorsed          by the  district court, are distinguishable,  either because they          involve statutory  classifications  which do  not  implicate  the                                        ____________________               6Rule  27 of the Supreme  Court of Puerto  Rico provides, in          pertinent part:               This court may take  cognizance of any matter certified               for it by  the Supreme  Court of the  United States,  a               Circuit  Court of Appeals of  the United States, a Dis-               trict Court of the United  States, . . . whenever it is               thus  requested by any  of said  courts, if  before the               petitioner court there is any judicial matter involving               questions of  Puerto Rican law which  may determine the               result thereof, and with regard  to which, in the opin-               ion of the petitioner court, there  are no clear prece-               dents in the case law of this Court.          P.R. Laws. Ann. tit. 4, App. I-A, Rule 27(a).                                          6          species of "fundamental  right" or "suspect  class" relied on  by          Nieves  in the present case, see, e.g., Lind Rodr guez v. Common-                                       ___  ____  ______________    _______          wealth of Puerto Rico, 112 P.R. Dec. 67 (1982); V zquez Negr n v.          _____________________                           ______________          Department  of Health of Puerto  Rico, 109 P.R.  Dec. 19 (1979),7          _____________________________________          or  because they treat  with arguments  exclusively based  on the          United  States Constitution,  not the  Commonwealth constitution,          see, e.g., Rodr guez Diaz v. Sierra Mart nez, 717 F. Supp. 27, 32          ___  ____  ______________    _______________          (D. P.R. 1989)  (presuming that Lind and V zquez  also determined                                          ____     _______                                        ____________________               7The  district court cited  these two decisions  in its dis-          missal order.  V zquez  Negr n reversed a summary judgment  for a                         _______________          defendant-physician, finding  that he was not covered by the pre-                                                    ___          1978  version  of    4105,  which excluded  from  its  protection          physicians  who  worked  only  part-time  for  the  Commonwealth.          V zquez  Negr n, 109  P.R.  Dec. at  23.   On  appeal,  plaintiff          _______________          proposed an  alternative basis for reversal,  arguing that   4105          violated  his right to equal protection.  Because the court found            4105 inapplicable,  however, it expressly refused  to reach (or          even to  describe) plaintiff's  constitutional argument.   Id. at                                                                     ___          25.    On the  other  hand, the  court  reached, and  rejected, a          distinct  equal protection  challenge  raised  by the  defendant-                                                                 __________          physician,  who contended  that  the pre-1978  version of    4105          _________          discriminated between  physicians who worked exclusively  for the          Commonwealth  and those  who  worked part-time.    Id. at  25-26.                                                             ___          Because  part-time  physicians are  not  a  "suspect" class,  and          immunity from  suit is not a  "fundamental" constitutional right,          see Alicea v.  C rdova Iturregui,  117 P.R. Dec  676, 691  (1986)          ___ ______     _________________          (noting that neither Lind nor V zquez dealt  with any fundamental                               ____     _______          right  of physicians), the court  upheld the statute  on a tradi-          tional "rational  basis" analysis.  V zquez Negr n, 109 P.R. Dec.                                              ______________          at 25-26.  ("[I]t  is evident that those physicians  whose income          is limited to the  salary derived from the State  deserve greater          protection.").                In Lind Rodr guez, the court affirmed summary judgment for a                  ______________          defendant-physician employed part-time by the Commonwealth, based          on a 1978 amendment to    4105 which eliminated its "exclusivity"          limitation.   Lind  Rodr guez,  112 P.R.  Dec.  at 68.    Despite                        _______________          plaintiffs' failure  to preserve their equal  protection claim in          the  trial court,  the Puerto  Rico Supreme Court  considered and          rejected the argument on its merits, adding that "[plaintiffs] do          not persuade us to change  our decision in V zquez Negr n."   Id.                                                     ______________     ___          at  68-69.  This cryptic  language in Lind  Rodr guez provides no                                                _______________          guidance,  however,  as the  court  did  not  describe the  equal          protection claim it was rejecting.                                          7            4105's validity under the United States Constitution, undertak-          ing its own independent  inquiry of federal case law,  and citing                                              _______          Schweiker v. Wilson, 450 U.S. 221 (1981)); supra note 5.          _________    ______                        _____                    Absent controlling state-law precedent, a federal court          sitting  in diversity has  the discretion to  certify a state-law          question  to  the  state's highest  court.  See  Lehman  Bros. v.                                                      ___  _____________          Schein,  416  U.S. 386,  391 (1974).   Before  this discretionary          ______          decision is even considered, however, we must first undertake our          own prediction of state law for we may conclude that  "the course          [the] state court[] would  take is reasonably clear."   Porter v.                                                                  ______          Nutter, 913 F.2d  37, 41 n.4  (1st Cir.  1990); cf. Salve  Regina          ______                                          ___ _____________          College v. Russell, 499 U.S. 225, ___, 111 S. Ct. 1217, ____, 113          _______    _______          L. Ed. 2d 190, 203 (1991) (court of appeals erred by deferring to          district court interpretation of local state law).               1.   Suspect Class Based on "Social Condition".               1.   Suspect Class Based on "Social Condition".                    _________________________________________                    The equal protection clause  of the Puerto Rico Consti-          tution,  eclectically patterned  on  such works  as the  American          Declaration of the  Rights and  Duties of Man  and the  Universal          Declaration  of the Rights of Man, is more liberally phrased than          its federal counterpart.  See Pruneyard  Shopping Ctr. v. Robins,                                    ___ ________________________    ______          447 U.S. 74, 81  (1980) (state constitution may afford  more, but          not less,  protection than Federal  Constitution).  Specifically,          Article  II, section  1,  of the  Commonwealth constitution  bans          discrimination based on "social origin  or condition."  See supra                                                                  ___ _____          note 4.  The Puerto Rico Supreme Court has held that any statuto-          ry classification  that discriminates  on the  basis of a  "human                                          8          dignity" standard enumerated in Article II, section 1, is  inher-          ently "suspect."   See, e.g.,  L on Rosario v.  Torres, 109  P.R.                             ___  ____   ____________     ______          Dec. 804,  813-14 (1980).   Thus, although  its precise  contours          remain  undefined, "poverty" is  considered a suspect classifica-          tion  under  the  Commonwealth  constitution,  triggering "strict          scrutiny" analysis unobtainable under the Equal Protection Clause          of  the  United States  Constitution.   Compare, e.g.,  Molina v.                                                  _______  ____   ______          Urban  Renewal and  Hous. Corp.,  114 P.R.  Dec. 295,  312 (1983)          _______________________________          (summarizing history of  Puerto Rico's constitutional convention,          noting that  "there can  be no  doubt that  the  drafters of  our          Constitution thought it was basic that there be no discrimination          against  any person by reason  of the person's  poverty . . . and          any  classification based on this  should be regarded with suspi-          cion and  be strictly  scrutinized") (Irizarry, J.,  concurring),          with,  e.g., Harris v. McRae,  448 U.S. 297,  323 (1980) ("[P]ov-          ____   ____  ______    _____          erty, standing alone, is not a suspect classification.").                     Notwithstanding  the unique history,  culture and legal          traditions  of Puerto Rico, and the absence of a federal lodestar          for  a constitutional  classification based  on poverty,  see San                                                                    ___ ___          Antonio Indep. Sch.  Dist. v.  Rodriguez, 411 U.S.  1, 28  (1973)          __________________________     _________          (noting that, unlike race or gender, "the class  of disadvantaged          'poor' cannot be identified or defined in customary equal protec-          tion terms"), we are  confident that Nieves would not  prevail on          her  claim under existing Commonwealth law.  The claim falters on          evidentiary  grounds  in  that  the summary  judgment  record  is          plainly  deficient to  enable a  determination that  the immunity                                          9          scheme established  by section  4105 operates to  discriminate on                                               ________          the basis of a suspect classification.                    Nieves does not contend that section 4105 discriminates             either on its  face or as applied     against "poor" patients.          Nor  is it  self-evident  that patients  utilizing public  health          services in Puerto Rico    a facially neutral statutory classifi-                                       ________          cation    are all, or even primarily, "poor."  In addition, since          section  4105 merely provides a "defense" which may be invoked by          private  civil litigants,  i.e., public  health service  doctors,                                     ____          against any  patient allegedly  injured  as a  result of  medical          malpractice by  a public health service  physician, Nieves cannot          demonstrate that the Commonwealth has applied the statute select-                                                _______          ively against only  that subset of public health service patients          who  are "poor."  Rather, Nieves' only colorable argument is that          section  4105 has  the  actual effect  of discriminating  against                                         ______          "poor" people  because a disproportionate share  of public health                                   ________________          services in Puerto  Rico is  administered to the  "poor."   Given          this position, we  think that Nieves' proposed  showing would not          establish  unlawful discrimination  under  existing  Puerto  Rico          judicial authority.                    As a preliminary matter, we note that Nieves'  claim of          disparate impact rests  on a  fragile foundation.   The data  are          presented in the form of a lawyer's assertions,8  rather than  in                                        ____________________               8Nieves' opposition memorandum, signed by her attorney David          Efron, Esquire, recites the following data:               Puerto Rico's per capita income is $18,705.00 according               to the  Planning Board's  1988 Report to  the Governor.                                          10          the form required  by Rule 56(e),9  and  are much less compelling          and probative  than Nieves' counsel  claims.10    Nonetheless, we                                        ____________________               In that  same year,  the Medical Assistance  Program of               the Puerto Rico Health  Department reported that out of               667,753 patients who  attended public health facilities               on the island, 387,091 had  annual income of less  than               $12,501;  57,750  of less  than  $3,300,  45 less  than               $5,800.   Only 891 persons had annual income of $12,800               or more.  Some 75% of  the patients at  public institu-               tions are indigent.                9Nieves conceded  that the district court  correctly treated          defendants'  motion to dismiss as  a motion for summary judgment.          See Fed. R.  Civ. P. 12(b)-(c).   Thus, as  the nonmoving  party,          ___          Nieves  was required to  "set forth  specific facts  showing that          there was a  genuine issue for  trial."  Fed.  R. Civ. P.  56(e).          Quoting data out  of context,  Nieves did not  attach either  the          full or excerpted reports she cited as  the source of those data.          See, e.g.,  Garside v. Osco  Drug, Inc., 895 F.2d  46, 49-50 (1st          ___  ____   _______    ________________          Cir.  1987).   Factual  assertions by  counsel in  motion papers,          memoranda, briefs,  or other  such "self-serving"  documents, are          generally insufficient  to establish  the existence of  a genuine          issue of material fact  at summary judgment.  See,  e.g., Fragoso                                                        ___   ____  _______          v. Lopez, 991 F.2d  878, 887 (1st Cir. 1993);  Transurface Carri-             _____                                       __________________          ers, Inc. v. Ford Motor Co., 738 F.2d 42, 46 (1st Cir. 1984); see          _________    ______________                                   ___          generally 10A Charles A. Wright, Arthur R. Miller & Mary K. Kane,          _________          Federal  Practice  & Procedure    2723,  at  63-65 (1983  & Supp.          ______________________________          1993);  cf. also Fed. R. Evid. 201(d) (judicial notice of adjudi-                  ___ ____          cative facts is required only where proponent supplies court with          necessary information).               10For  example, the opposition  memorandum states  that only          891 out of 667,753 persons treated at public health facilities in          1988 had annual  incomes in  excess of $12,800,  and that  Puerto          Rico's  "per capita income"  that year was $18,705.   It does not          specify, however, whether the $18,705 figure is the median or the          average  annual  income,  nor  explain the  basis  for  selecting          $12,800 as  the "poverty" cut-off  figure, nor indicate  the per-          centage of the total  population of Puerto Rico that  falls below          the suggested "poverty" cut-off.               Moreover, the data presented in the memorandum are inconsis-          tent.   Although the memorandum asserts that 75% of public health          patients were "indigent," the other figures cited, if taken to be          poverty  "lines,"  would  yield  indigency rates  of  either  66%          (444,886 patients  of 667,753  below $12,501),  or more  than 98%          (666,862 out of 667,753 below $12,800).  Both the 66% and the 98%          indigency rates assume that the ambiguous figure of  387,091 does          not really include all patients with incomes "less than $12,501,"          as Nieves describes,  but only those with incomes falling between                                                                    _______                                          11          assume,  for present  purposes only,  that many  of the  users of          Puerto Rico public health  services are likely to be  poorer than          the average population.   Still,  we are not  persuaded that  the          Puerto  Rico courts would find that such a showing was a disposi-          tive basis from which to declare section 4105 unconstitutional.                    In addition to raw statistical data of disproportionate          impact, we  think the Commonwealth courts  would require evidence          (e.g., historical patterns of discrimination against the targeted           ____          class, or pre-enactment legislative history) that the Puerto Rico          legislature enacted section 4105 with an invidious discriminatory          purpose or intent  against the  "poor" as  a class.   Cf.,  e.g.,                                                                ___   ____          Personnel Adm'r of Massachusetts v. Feeney, 442 U.S.  256, 278-80          ________________________________    ______          (1979)  (upholding gender-neutral  state statute that  gave civil          service  employment preference  to "veterans,"  even  though pre-          ferred  class was proven to be 98% male, absent proof that Legis-          lature enacted it  "because of,"  rather than "in  spite of"  its          adverse effects on women); Washington v. Davis, 426 U.S. 229, 239                                     __________    _____          (1976) (upholding testing for police officer  applicants, despite          statistical  evidence  that  test  had  disproportionate  adverse          impact on  black applicants,  absent other evidence  of "racially          discriminatory  purpose"  of   legislative  enactment).    Nieves          proffered  no such evidence of  discriminatory purpose.  In fact,          section 4105's legislative history  suggests that the Legislature                                        ____________________          $3300  and  $12,501.   If  Nieves'  other  cited figures  (57,750          patients and 45 patients)  merely represent further breakdowns of          this  overall  figure of  387,091  patients,  the indigency  rate                _______          actually falls to 58%.                                          12          was  animated  by far  more  beneficent motives      concern that          inflationary  malpractice insurance  premiums  would  dry up  the          supply of physicians willing to practice in public health servic-          es, depriving many  Puerto Rican families of quality health care.          See generally Enr quez P rez, 108 P.R. Dec. at 677-80.          ___ _________ ______________                    Given   this  shortfall,  we  simply  lack  a  reliable          evidentiary base from which to appraise whether section 4105 dis-          criminates  against  the  alleged  suspect  classification  under          Commonwealth law.11               2.   Fundamental Right to Civil Suit for Damages.               2.   Fundamental Right to Civil Suit for Damages.                    ___________________________________________                    Nieves'  alternate  constitutional  claim bypasses  the          problematic  "poverty" classification  discussed  above.   Nieves          contends that "strict scrutiny"  analysis is required because the          Puerto Rico  Constitution guarantees the  "fundamental" right  to          maintain  a civil suit for full  compensatory damages, see Torres                                                                 ___ ______          v. Castillo Alicea, 111  P. R. Dec. 792, 801-802  (1981), without             _______________          regard to whether the challenged statutory classification targets          a suspect class.  She argues that section 4105 unconstitutionally          deprives  a non-suspect class    all patients who use Puerto Rico          public  health  services     of  this  fundamental right  without                                        ____________________               11The Puerto Rico Supreme  Court would reject any certifica-          tion of this factually  undeveloped issue.  See Pan  Am. Computer                                                      ___ _________________          Corp. v.  Data Gen. Corp., 112 P.R. Dec. 780, 788 (1982) (Rule 27          _____     _______________          certification is warranted only  if, inter alia, "the  case makes                                               _____ ____          an  account of all the  facts relevant to  said questions showing          clearly  the nature of the  controversy giving rise  to the ques-          tions").                                          13          positing a compelling governmental interest in its classification                     __________          scheme.  But cf.,  e.g., Christensen v. Ward, 916 F.2d 1462, 1472                   ___ ___   ____  ___________    ____          (10th  Cir.) (pursuit  of state-law  tort action  not fundamental          right guaranteed by Federal Constitution), cert. denied, 498 U.S.                                                     _____ ______          999  (1990); Edelstein  v. Wilentz,  812 F.2d  128, 131  (3d Cir.                       _________     _______          1987) (same).                    In  Alicea  v. C rdova  Iturregui,  117  P.R. Dec.  676                        ______     __________________          (1986),  the Puerto Rico Supreme Court struck down P.R. Laws Ann.          tit. 26,   4109(1), a MHPLIA companion provision to section 4105,          which established  a maximum two-year statute  of limitations for          all  medical malpractice  claims, without  regard to  whether the          injury was  discoverable within the  two-year limitations period.          The court noted  that section 4109 created different (albeit non-          suspect)  classifications  for  patients  who   sustained  patent          injuries and  patients with latent  injuries.  Id.  at 688.   The                                                         ___          court reaffirmed its earlier statement in  Torres "that the right                                                     ______          to  commence a civil action is  a fundamental right," and went on                                            ___________ _____          to  conclude that "any  legislative classification affecting such          right will have to withstand the strict judicial scrutiny  analy-          sis."   Id.  at 690  (citing Torres,  111 P.  R. Dec.  at 801-02)                  ___                  ______          (emphasis added).   In Alicea,  the court held  that the  Common-                                 ______          wealth  lacked  a  sufficiently "compelling  state  interest"  to          justify  even  this  non-suspect  classification,  and  that  the          purported goals  of the  MHPLIA     assuring  the general  avail-          ability  of medical  malpractice insurance  and avoiding  the in-          creasing medical  costs and declining quality  of care associated                                          14          with exorbitant  malpractice insurance premiums     would not do.          Id. at 693.          ___                    The Alicea court's depiction of Torres has engendered a                        ______                      ______          splintered precedent that ultimately undermines Nieves' argument.          Only  two  justices joined  the opinion  of  the court  in Alicea                                                                     ______          without reservation.  Three justices filed separate concurrences;          one  justice  lodged a  vigorous  dissent.12   In  her concurring          opinion, Justice  Naveira de  Rod n concluded that  the right  to          bring a civil  suit for damages  was at best a  "property" right,          and  though  section  4109(1)  was violative  of  procedural  due          process, she opined that Torres did not recognize a "fundamental"                                   ______     ___          constitutional  right of access to the  civil courts. Alicea, 117                                                                ______          P.R. Dec at  699-70 n.1  (Naveira de Rod n,  J., concurring).13            Moreover,  the dissent warned that such a reading of Torres would                                                               ______          expose all  Puerto Rico civil  statutes of limitations  to strict          scrutiny. Id. at 710 (Rebollo L pez, J., dissenting).  Thus, five                    ___          of the seven justices on the Court did not endorse Nieves' inter-          pretation of Torres.  See In  re San Juan Dupont Plaza Hotel Fire                       ______   ___ _______________________________________          Litig., 687 F. Supp. 716, 733-34 (D. P.R. 1988) (citing Alicea as          ______                                                  ______          support for  interpreting  Torres  as  recognizing  a  "property"                                     ______          right,  not a "fundamental" right, to bring civil suit for damag-                                        ____________________               12Justice Denton did not participate in the Alicea decision,                                                           ______          and Justice Pons Nu ez concurred without a separate opinion.               13The concurrence  aptly notes  that, unlike states  such as          Texas and  Arizona that  presumably recognize such  a fundamental          constitutional right, see Kenyon  v. Hammer, 688 P.2d  961 (Ariz.                                ___ ______     ______          1984);  Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984), Puerto Rico                  ______    ______          has  no separate or explicit "open access to courts" provision in          its constitution.                                          15          es); see  also Gregg v. Georgia,  428 U.S. 153, 169  n. 15 (1976)               ___  ____ _____    _______          (noting that, when no rationale commands the respect of a majori-          ty of the court, "the holding of the Court may be  viewed as that          position taken by those Members who concurred in the judgments on          the narrowest grounds") (emphasis added).              _________ _______                    Moreover, our  own  analysis  of  the  Torres  decision                                                           ______          confirms that  the reservations  expressed by the  concurring and          dissenting justices  in Alicea  conflict with the  broader inter-                                  ______          pretation of Torres  proposed by  Nieves.  Torres  struck down  a                       ______                        ______          statute which capped tort  damages in malpractice actions against          the Commonwealth,  but permitted  plaintiffs who won  higher jury          awards to petition the Legislature for special exemption from the          caps.  See Torres, 111 P. R.  Dec. at 795.  Although Torres cites                 ___ ______                                    ______          language suggesting that the challenged statute fatally impeded a          "fundamental"  right to  bring a  civil action, the  court struck          down the statute  without mentioning  the need  to demonstrate  a          "compelling state interest," thereby raising  grave doubt whether          "strict  scrutiny" analysis  was  engaged.   Arguably, at  least,          Torres invalidated the legislative  exemption scheme simply as an          ______          undue encroachment  on the judicial branch,  "in contravention to          the principle of  separation of powers."   Id. at 803;  cf. V lez                                                     ___          ___ _____          Ruiz  v.  Commonwealth of  Puerto Rico,  111  P.R. Dec.  747, 762          ____      ____________________________          (1981)  (striking down MHPLIA's  compulsory arbitration provision          as  undue  interference in  judicial  function).   Thus,  Nieves'          proposed reading  of Torres,  the mooring for  her constitutional                               ______          claim, derives from language which may well be mere dicta.                                          16                    Since a  majority of the Puerto Rico  Supreme Court has          not interpreted  (indeed, has declined,  as in Alicea,  to inter-                                                         ______          pret)   Torres as Nieves urges,  it would be unfitting  for us to                  ______          chart  the future  course of  Commonwealth law  or to  enlist the          Puerto Rico Supreme Court in her pathfinding effort.  See Venezia                                                                ___ _______          v. Miller  Brewing Co., 626  F.2d 188,  192 n.5  (1st Cir.  1980)             ___________________          (court  should be  wary of  certification where  requesting party          merely  seeks to  persuade state  court  to extend  current state                                                      ______          law).   State-law claimants who  bypass an available  state forum          generally are not  entitled to adventurous state-law  interpreta-          tions from the  federal forum,14  nor have we  been receptive  to          their  requests for  certification  newly asserted  on  appeal.15                                        ____________________               14See Putnam  Resources v. Pateman,  958 F.2d 448,  470 n.25                 ___ _________________    _______          (1st Cir.  1992);  Carlton v.  Worcester Ins. Co., 923  F.2d 1, 3                             _______     __________________          (1st  Cir. 1991); Ryan v. Royal Ins.  Co., 916 F.2d 731, 744 (1st                            ____    _______________          Cir.  1990); Taylor v. Aetna Casualty and Sur. Co., 867 F.2d 705,                       ______    ___________________________          706 (1st Cir. 1989); see also Tidler, 851 F.2d at 425.                               ___ ____ ______               15See Fischer v. Bar Harbor Banking & Trust Co., 857 F.2d 4,                 ___ _______    ______________________________          8 (1st Cir. 1988),  cert. denied, 489 U.S. 1018  (1989); Cantwell                              _____ ______                         ________          v.  University  of Massachusetts,  551  F.2d 879,  888  (1st Cir.              ____________________________          1977);  see also Seaboard Sur. Co. v. Garrison, Webb & Stanaland,                  ___ ____ _________________    ___________________________          P.A., 823 F.2d 434,  438 (11th Cir. 1987); Colonial  Park Country          ____                                       ______________________          Club v. Joan of Arc, 746 F.2d 1425, 1429 (10th  Cir. 1984); Smith          ____    ___________                                         _____          v. FCX, Inc., 744 F.2d 1378, 1379 (4th  Cir. 1984), cert. denied,             _________                                        _____ ______          471 U.S. 1103 (1985).               Nieves  first  requested certification  on appeal;  thus her          entitlement is  "considerably weaken[ed]."  Boston  Car Co., Inc.                                                      _____________________          v. Acura Auto. Div., Am.  Honda Motor Co., 971 F.2d 811,  817 n.3             ______________________________________          (1st Cir. 1992); see also Croteau v. Olin Corp., 884  F.2d 45, 46                           ___ ____ _______    __________          (1st Cir. 1989); Fischer, 857 F.2d at 8; Tidler, 851 F.2d at 426;                           _______                 ______          Perkins v. Clark Equip.  Co., 823 F.2d  207, 210 (8th Cir.  1987)          _______    _________________          ("The practice  of  requesting  certification  after  an  adverse          judgment  has been  entered should  be discouraged.").   Absent a          timely request to  the district court, the  requesting party must          advance some  "compelling"  reason for  certification on  appeal.          Id.   Although  on  occasion we  have  ordered certification  sua          ___                                                           ___          sponte,  we  find here  no  countervailing  reasons for  allowing          ______          certification in these circumstances.                                          17          While Nieves did not raise the section 4105 "defense," of course,          it was  a clearly foreseeable  response to her  federal complaint          against appellees.          B.   Definition of "Employee" in Section 4105.          B.   Definition of "Employee" in Section 4105.               ________________________________________                    Finally,  Nieves  contends  that  a  genuine  issue  of          material fact remained  with respect  to whether  Drs. Gelp   and          Gonz lez  Recio  were  independent contractors  working  for  UPR          pursuant  to  a contract  with  the  Hospital, a  privately-owned          medical facility.  See Flores Rom n  v. Ramos, 90 J.T.S. 132,  at                             ___ ____________     _____          8243-44 (1990) (holding that  physicians who were merely indepen-          dent contractors  of Commonwealth, and not  its "employees," were          not entitled to section  4105 immunity).  To determine  whether a          physician  claiming section  4105  immunity  is  an  "independent          contractor," or merely a  Commonwealth "employee," the court must          consider the totality of  the circumstances, focusing principally          on  the level of control contractually reserved to the governmen-          tal entity  over the  physician's provision of  patient services.          See Flores  Rom n, 90 J.T.S. 132,  at 8244.  Relevant  indicia of          ___ _____________          "independent contractor" status may include, inter alia, evidence                                                       _____ ____          that the physician                    (1)  earned  compensation  on  a  per-patient                         basis, rather than a flat salary;                    (2)  received  no fringe  benefits of  a type                         given  to  the principal's  employees (-                                                                _                         e.g.,  vacation  or sick  leave, pension                         ____                         benefits, tax withholding);                    (3)  personally owned, invested  in, or  paid                         for the medical  equipment and  supplies                                          18                         used to treat  patients, or the  facili-                         ties  which  formed  the situs  of  that                         treatment, or personally  hired and  su-                         pervised her own administrative  or sub-                         sidiary medical personnel;                    (4)  held  and paid for  her own medical mal-                         practice insurance policy;  or                    (5)  exercised final judgment  as to the  ap-                         propriate medical treatment to render to                         patients.          Id.;  see also Rivera v. Hospital Universitario, 762 F. Supp. 15,          ___   ___ ____ ______    ______________________          17 (D. P.R. 1991).                    On appeal,  Nieves  and  the  appellees  bandy  various          statements  relating to  the  physicians'  status,  without  much          regard to whether  these "facts" were  ever substantiated in  the          summary judgment  record as required by Rule 56.  In their answer          and motion to dismiss, Drs. Gelp  and Gonz lez Recio claimed that          they were  "state employed  physicians" entitled to  section 4105          immunity.   Later, they introduced  a sworn statement  by John M.          Rom n Rodr guez, Dean of UPR's Medical Science Campus  and custo-          dian of its  personnel records, attesting that Dr. Gonz lez Recio          was an "employee" of the UPR medical school in December 1983, and          that Dr. Gelp , while not an "employee" of UPR, was enrolled as a          "resident" in training in UPR's medical graduate program.16                                        ____________________               16We  assume for  present  purposes that  appellees had  the          burden  of proof  with respect  to their  status as  Commonwealth          "employees."  See P.R. Laws  Ann. tit. 32,   1971; but  see supra                        ___                                  ___  ___ _____          note 2.   We  note,  however, that  Nieves  might have  raised  a          distinct issue of statutory  interpretation in the district court          and on appeal; namely, whether  the affiant's mere assertion that          Gelp  was a UPR medical "resident" or trainee was probative, as a          matter of law,  of his status  as a UPR "employee"  under section          4105.   Generally speaking, of course, not all UPR students would          necessarily  be deemed  school  "employees" merely  by virtue  of                                          19                    Nieves  conceded at  oral argument  that the  motion to          dismiss was properly  converted to a motion  for summary judgment          pursuant to Fed. R. Civ.  P. 12(b)-(c).  As the nonmoving  party,          Nieves  was required to set  forth specific facts demonstrating a          trialworthy issue  as to whether these  defendant physicians were          independent contractors.  See Fed. R. Civ. P. 56(e).   In support                                    ___          of her "independent contractor"  theory, Nieves contends that (1)          prior  to December  1983, pursuant  to  contract, UPR  placed its          faculty and medical graduate  students (residents and interns) at          the  Hospital for  training purposes, the  Hospital paid  UPR for          their services, and UPR  paid the physicians a salary out  of the          contract  proceeds; (2)  Dr. Gonz lez  Recio, Dr.  Gelp 's super-          visor, headed  the Hospital's OB-GYN department,  and received no          direct supervision in the performance of her Hospital duties from          any UPR official; (3)  UPR carried malpractice insurance coverage          on both physicians  at its own  expense, allegedly a  superfluous          expenditure  if  the  physicians  were  "employees"  entitled  to          section 4105 immunity; and (4)  the medical equipment and facili-          ties the defendant physicians used to treat patients were neither          provided  nor owned  by UPR.   Nieves  faces two  difficulties on          appeal.                                        ____________________          their  student status.  But as framed on appeal, Nieves' argument          does  not  contest Gelp 's  status as  a  UPR "employee"  on this          ground.   Therefore,  we  merely  consider  whether there  was  a          genuine factual dispute as  to Gelp 's status as an  "independent          contractor" of UPR.  See Vanhaaren  v. State Farm Mut. Auto. Ins.                               ___ _________     __________________________          Co.,  989 F.2d 1,  5 (1st Cir.  1993) (party  to diversity action          ___          waives state-law  interpretation not raised in  district court at          summary judgment); see  also Hansen v. Continental Ins.  Co., 940                             ___  ____ ______    _____________________          F.2d 971, 983 n.9 (5th Cir. 1991) (same).                                          20                    First, assuming  these "facts"  to be probative  on the          issue  of  "independent  contractor" status  (e.g.,  minimal  UPR                                                        ____          supervision of Dr. Gonz lez Recio), the only "proof" presented by          Nieves  consisted of the  undocumented and unsubstantiated asser-          tions contained in her opposition memorandum of January 31, 1992.          Although Nieves argues that "the facts . . . depend on the super-          vision  and control  over  [the doctors']  functions pursuant  to                                                               ________  __          contract," and even  though she deposed both physicians  and con-          ________          ducted discovery for  eight months prior to  dismissal, she never          submitted  the pertinent  contract  provisions,  the  malpractice          insurance policies,  or an  affidavit in  support of  the factual          assertions  set forth  in her  opposition memorandum.17   Factual          assertions by counsel  in motion papers, memoranda, or briefs are          generally  not sufficient to  generate a trialworthy  issue.  See                                                                        ___          Fragoso v. Lopez, 991 F.2d 878,  887 (1st Cir. 1993); see also In          _______    _____                                      ___ ____ __          re Morris  Paint and  Varnish Co.,  773 F.2d  130, 134  (7th Cir.          _________________________________          1985); S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde                 __________________________________________    ____________          & Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1982).          ___________                    Second, even  though a party may not  generate a trial-          worthy dispute  at summary  judgment merely by  presenting unsub-          stantiated allegations  in its memoranda  or briefs, a  party may          nonetheless  concede facts  adverse  to its  position on  summary                                      _______                                        ____________________               17We appreciate that Nieves  may have been caught off  guard          by  appellees'  reply memorandum,  filed  three  weeks after  the          court's dismissal  order.  Nevertheless, if  Nieves lacked suffi-          cient  time to present her evidence in admissible form, she could          have  moved for a continuance  pursuant to Fed.  R. Civ. P. 12(c)          and 56(f).                                          21          judgment.  See 10A Charles A. Wright, Arthur R. Miller  & Mary K.                     ___          Kane, Federal Practice & Procedure   2723, at 63-65 (1983 & Supp.                ____________________________          1993) (adverse facts are the functional equivalent of "admissions          on  file" explicitly  cognizable under  Rule 56).    Nieves makes          several important concessions relevant to the appropriate  "inde-          pendent  contractor" analysis  prescribed by  Flores Rom n.   The                                                        ____________          mere  existence  of  a residency  contract  between  UPR and  the          Hospital,  together   with  UPR's  payment  of   the  physicians'          salaries, indicates  that UPR  exercised ultimate  "control" over          the conditions under  which the doctors  were to provide  medical          services at the  Hospital.  Further, UPR's  provision and payment          of medical  malpractice insurance coverage  for these  physicians          suggested,  unless  competently  rebutted,  an  employer-employee          relationship  between UPR  and  these physicians  under the  UPR-          Hospital  contract.   Cf. Flores  Rom n, 90  J.T.S. 132,  at 8244                                ___ _____________          (because physicians'  contract with state agency  gave them abso-          lute control  over medical treatment, contract  also required the          doctors to pay for, and maintain in force at all times, their own          malpractice  insurance  policies,  and  to  reimburse  government          entity for all legal expenses arising from the doctors' negligent          acts).18  Finally, Nieves  misapprehends the fundamental  message          of  Flores Rom n, by arguing that the Hospital's ownership of the              ____________                                        ____________________               18Nieves argues that UPR would not need to insure the physi-          cians  if they  were  "employees," hence  absolutely immune  from          liability under section 4105.  Of course, this is not necessarily          true, since UPR, as an "arm" of the  Commonwealth, could still be          liable  for  the negligence  of its  immune  employees up  to the          statutory limits prescribed by P.R. Laws Ann. tit. 32,   3077(a).          See supra pp. 3-4.          ___ _____                                          22          medical  equipment and  facilities establishes  that the  doctors          were independent  contractors.  The  proper focus is  not whether          the putative principal (viz., UPR) owns or controls the equipment                                  ____          and  facilities,  but whether  the  performing  party (viz.,  the                                                                 ____          physician) uses his own "tools" to perform the required services.          Nieves  readily concedes  that these  physicians did not  own the          medical equipment used to treat their patients, nor did they hire          or  supervise  their own  support  personnel,  nor contribute  to          Hospital operating expenses.  Moreover, individual physicians did          not contract with the Hospital to obtain privileges or accommoda-          tions.  Cf. Flores Rom n, 90 J.T.S. 132, at 8244 (noting that the                  ___ ____________          contract provided that the contract doctors would hire  their own          support personnel,  and treat patients with  their own equipment,          at their own facilities).                    We conclude that the  summary judgment record contained          no competent evidence, and accordingly did  not raise a colorable          factual  dispute, from which the district court could have made a          determination that either physician was an  "independent contrac-          tor" of UPR.  Appellees therefore  were entitled to judgment as a          matter of law.19                    Affirmed.                    Affirmed.                    ________                                        ____________________               19On appeal, Nieves argues for the first time that Dr. Gelp           produced no  evidence that  he was  a "health  care professional"          within  the meaning of  the MHPLIA.   We decline  to address this          belated claim as it was never  raised in the district court.  See                                                                        ___          Miller  v. United States Postal  Serv., 985 F.2d  9, 12 (1st Cir.          ______     ___________________________          1993).                                          23
