
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2373                               AWILDA VILLARINI-GARCIA,                                Plaintiff, Appellant,                                          v.                         HOSPITAL DEL MAESTRO, INC., ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                     [Hon. Carmen C. Cerezo, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Daniel R.  Bright with whom  Robert Braunschweig  and Braunschweig            _________________            ___________________      ____________        Rachlis Fishman & Raymond, P.C. were on brief for appellant.        _______________________________            Jose  L. Gandara with whom Ramon E. Bauza  Higuera and Raul Davila            ________________           _______________________     ___________        Rivera were on brief for appellees Dr. & Mrs. Mario Tomasini.        ______            Thomas  Doran Gelabert  with whom Eli  B. Arroyo was  on brief for            ______________________            ______________        appellee Hospital Del Maestro, Inc.                                 ____________________                                   November 1, 1993                                 ____________________                 BOUDIN,  Circuit  Judge.     This  case  is   a  medical                          ______________            malpractice action arising under Puerto Rico law.  On summary            judgment, the district  court ruled that the  claims, brought            four years after the event, were barred by the local one-year            statute of  limitations.  In  our view, the  district court's            ruling is correct as to three of the claims; on the remaining            claim, we  think that  it was  for the jury  rather than  the            court  to determine whether  the knowledge and  due diligence            requisites for bringing the claim at this time have been met.                 The  facts  are  largely undisputed.    In  August 1986,            Awilda  Villarini Garcia  ("Villarini")  consulted Dr.  Mario            Tomasini about a birthmark or  mole that Villarini had on her            back.   Villarini had been  referred to Tomasini  by Hospital            del Maestro at which Tomasini was a surgeon.  After examining            Villarini,  but  without  doing a  biopsy,  Tomasini  advised            Villarini  that the mole should be surgically removed because            it might turn malignant in the future.                 Villarini was concerned that surgery involving her  back            might affect her  career as a concert pianist,  and she asked            Tomasini  whether  the  proposed operation  would  impair her            ability  to  practice and  perform  at the  piano.   Tomasini            assured her that the proposed excision was minor surgery that            would pose  no  risk  to  Villarini's musical  career.    The            surgery was performed  in Puerto Rico  on September 8,  1986.            During the surgery, Tomasini removed a piece of muscle tissue                                         -2-                                         -2-            as well as  the mole.  No biopsy  was performed either before            or during  the operation.   The pathology report  showed that            nothing removed was cancerous.                 After the  operation Villarini experienced  severe pain.            A few weeks after the surgery Villarini received the hospital            pathology  report and learned for  the first time that muscle            tissue had  been cut out, despite the absence of cancer.  She            then  called  Tomasini,  advised him  that  serious  pain was            continuing  and  inquired  about the  removal  of  the muscle            tissue.   Tomasini replied  that the removal  was normal  and            necessary, that  only a  small amount  had been  removed, and            that she would  suffer no lasting harm and  had no reason for            concern  about her  career.   Tomasini also  said that  post-            operative pain was to be  expected and might last for a  year            or  even more.  He said that no further treatment was needed,            apart from light exercise.                   Villarini's back  pain continued, although  declining in            severity  and  frequency,  through  the  remainder  of  1986,            throughout 1987, and during the first half of 1988.  By early            summer 1988,  the back  pain had  largely disappeared  but in            June 1988  Villarini experienced  a new  discomfort involving            her arm and apparently a different sort of back pain as well.            In July 1988, she visited a chiropractor, Dr.  Efrain Palmer,            whom   Villarini  had  consulted  in  previous  years  for  a            scoliosis, or spine curvature, condition.  She visited Palmer                                         -3-                                         -3-            several more times  between September 1988 and May  1989.  In            one  of  these  visits, probably  the  September  1988 visit,            Villarini  mentioned  her  mole-removal  surgery  and  Palmer            speculated that  the operation might  have adversely affected            her  scoliosis.  When Villarini asked  whether she should sue            Tomasini, Palmer  (in his  own words)  "tried to  discourage"            this  course.  In  Villarini's recollection, Palmer  told her            "that there seemed to be  no basis or relationship between my            current complaint and the surgery."                 During  the summer of 1988, Villarini felt that her back            was well enough  to permit her to schedule  piano concerts in            September  1988 in Puerto  Rico and New  York.  As  she began            preparing,  Villarini experienced severe pain in her arm, and            she was  forced to cancel  the concerts.   Between  September            1988  and  May 1989  Villarini  consulted a  number  of other            doctors  or other  specialists,  apart  from  her  visits  to            Palmer.1  These doctors, some of whom were aware  of the mole                                            ____________________                 1In September  and October of 1988,  Villarini consulted            Dr. Carlos Berrocol,  her family physician who  diagnosed her            problem as a  swollen muscle; Dr. Stanley Weinapel,  a member            of the Department  of Rehabilitation Medicine at  St. Luke's-            Roosevelt Hospital  in New  York, who told  her that  she had            "overuse syndrome"; Dr. Edwin Rosario Rios, a physiatrist who            concluded  that the pain  stemmed from calcifications  in the            shoulder; and Dr. Jose Abreu Deliz, an orthopedic surgeon who            seconded the "overuse  syndrome" diagnosis.  In  February and            April of  1989, Villarini  saw Dr. James  Parkes, a  New York            physician  who viewed the pain as arising from calcifications            and tendinitis; Dr. Glatter, a physiatrist who concluded that            she  had scoliosis and mild  tendinitis; and finally a number            of  therapists and physicians  at Lincoln Medical  and Mental            Health Center in the Bronx,  who told her the problem stemmed                                         -4-                                         -4-            removal,  gave various  diagnoses  for  her continuing  pain.            These  included   "swollen  muscle,"  calcification   in  the            shoulder, "overuse  syndrome,"  tendinitis in  the  arm,  and            scoliosis.                 On  June 29,  1989,  Villarini saw  Dr. Gary  Ostrow, an            osteopath.   He opined that  her back and arm  pain were both            due  to the  surgery on  her back.   Villarini  then retained            counsel  and,  just  under a  year  after  the  Ostrow visit,            Villarini  brought suit on  June 28, 1990,  against Tomasini,            Hospital  del Maestro  and various  insurers  in the  federal            district court  in Puerto  Rico.   The complaint,  seeking $1            million   in  damages,   made  essentially  four   claims  of            malpractice:                 1.   failure to secure appropriate consent for  the                      removal of the muscle tissue;                                  2.   negligence in failing to warn Villarini  adequately                      about the risks and consequences of the operation;                 3.   negligence in choosing unnecessarily to remove  the                      muscle tissue;                 4.   negligence  in failing  to  provide adequate  post-                      operative care or treatment.                 Following discovery, including  depositions of Villarini            and Palmer, motions  for summary judgment  were filed by  the            hospital and by Tomasini.  These motions relied upon the one-                                            ____________________            from overuse and administered physical therapy and ultrasound            treatments.                                         -5-                                         -5-            year  statute of limitations in Puerto Rico's Civil Code art.            1868, 31 L.P.R.A   5298, which pertinently provides:                  The following prescribe in one year . . . [a]ctions                 to demand  civil liability  . .  . for  obligations                 arising from . .  . fault or negligence .  . . from                 the  time  the   aggrieved  person  had   knowledge                 thereof.                 The motions  were opposed  by Villarini  who included  a            detailed  affidavit setting forth  many of the  facts already            recited.   On  October 13,  1992, the district  court granted            summary judgment for the  defendants.  After a  discussion of            the  facts  and  authorities,  Judge  Cerezo  concluded  that            Villarini  had failed to  exercise due diligence  in pursuing            her  claims.   Given  Villarini's  state of  knowledge  as of            September 1988, the  district court ruled that  Villarini was            not entitled  to wait almost  two more years  before bringing            suit.  Accordingly, the court dismissed the complaint.                 Article 1868, although it prescribes  a one-year statute            of limitations,  has been construed  by the Supreme  Court of            Puerto  Rico to  incorporate  the so-called  discovery  rule.            See, e.g., Santiago Hodge v. Parke Davis & Co., 909 F.2d 628,            ___  ____  ______________    _________________            632-33  (1st Cir. 1990),  discussing Colon Prieto  v. Geigel,                                                 ____________     ______            115 D.P.R. 232, 247, 15 Off. Trans. 313 (1984).  The one-year            period does not  begin to run until  the plaintiff possesses,            or with due  diligence would possess, information  sufficient            to  permit suit.  The classic case  for the discovery rule is            the  sponge, negligently left  inside the patient  during the                                         -6-                                         -6-            operation, whose  ill effects  are not  apparent for  several            years.                 It is easy to state  the gist of the discovery rule  but            more difficult  to fine-tune it.   Puerto Rico  decisions say            that  the knowledge required to start  the statute running is            knowledge not  only of harm  but also of  "the origin  of the            injury," Geigel,  115 D.P.R. at  245, 15 Off. Trans.  at 329,                     ______            which we take to include knowledge  of the wrong and a causal            link between the  wrong and some harm.   But actual knowledge            is not required where, by due diligence, such knowledge would            likely have  been acquired.   115 D.P.R.  at 244-45,  15 Off.            Trans. at 327-29.  Actual knowledge is a matter of fact,  but            the concept of due diligence has buried within it a normative            question of  how  much  diligence  should be  expected  of  a                                               ______            reasonable lay person.                 On  review  of  a grant  of  summary  judgment, disputed            issues of fact are resolved  in favor of the non-moving party            and inferences are  drawn in that party's favor.   Mesnick v.                                                               _______            General  Electric Co.,  950 F.2d  816,  822 (1st  Cir. 1991),            _____________________            cert. denied, 112  S. Ct. 2965 (1992).   Giving Villarini the            ____  ______            benefit of  this approach,  we think that  claims 1, 2  and 4            were properly dismissed but that a jury is entitled to decide            whether  claim 3 was timely brought  under the discovery rule            applied in Puerto Rico.   We consider each  of the claims  in            order.                                         -7-                                         -7-                 1.  The  first claim is that Tomasini  removed a part of            Villarini's  body without  getting her  permission.   If  the            surgeon gets consent  to remove a mole on  the patient's back            but takes out the patient's appendix as well, there is little            doubt  that the  surgeon  would face  a lawsuit,  whether one            calls it negligence or battery.  Here, no doubt Tomasini will            say that  the consent  he got  should be taken  to include  a            fragment of muscle tissue, but  we are concerned now not with            the merits but with the statute of limitations.                 From  the  standpoint  of  the  statute of  limitations,            Villarini knew three weeks after the operation that a portion            of her muscle had been removed without her specific  consent;            she   also  knew  that  she  was  suffering  substantial  and            unexpected pain stemming from the  operation.  It seems to us            that Villarini  knew at this  point enough to require  her to            resort to  a lawyer  on the lack  of consent  claim.   If the            lawyer judged that the consent was deficient, then she had to            bring  suit within  one year  after  receiving the  pathology            report and having it confirmed by Tomasini.                   The core of the claim, after all, is the lack of consent            for the doctor's removal of the muscle tissue, so the alleged            malpractice was  known to  Villarini as  soon as  she learned            that the muscle had been removed.  So, too, was the fact that            she was suffering pain from the operation beyond anything she            had  expected.    Villarini therefore  had  knowledge  of the                                         -8-                                         -8-            critical  facts for this  claim shortly after  the operation,            and under Puerto Rico  law she could not  wait four years  to            assert it.                 2.   The failure to  warn claim is  embraced by the same            logic.   Villarini knew three weeks  after the operation that            not only was  she suffering unexpected pain but, according to            Tomasini himself, that the pain might well  continue for over            a year.  At this point,  one might expect a reasonable person            to  conclude that  a warning  of  such possible  consequences            should  have been given  before the operation,  especially to            one whose career could depend on physical well-being.                 As we  explain below, Villarini was entitled  to rely on            Tomasini so far as he predicted that the operation was normal            and the pain would come to an end.  There  thus might be good            reason for her to defer  any suspicion that the operation had            gone awry.  But the  malpractice claim in question depends on            a lack of warning, not  bungled surgery; and the duration and            effects  of the pain  following a perhaps  inadequate warning            might affect the  amount of damages but not  the existence of            damages.   Once again, we  think that Villarini  clearly knew            within  three  weeks all  of  the facts  that  justified this            claim.                 Of course, Villarini was not a lawyer and could not know            whether technically the lack of warning (or, for that matter,            the  lack of  consent  to  the  muscle  removal)  constituted                                         -9-                                         -9-            malpractice.  The discovery rule, however, focuses on whether            the plaintiff knew the facts that gave rise to the claim, not            their full legal implications.  Osborn v. United States,  918                                            ______    _____________            F.2d 724, 731 (8th  Cir. 1990).  And where  those known facts            create  a  reasonable basis  for  concern about  malpractice,            there is  nothing unfair  in a policy  that insists  that the            plaintiff promptly  assert her  rights.   Aldahonda-Rivera v.                                                      ________________            Parke Davis &  Co., 882 F.2d 590, 593 (1st Cir. 1989).  After            __________________            all,  the statute  of  limitations  also  serves  to  protect            defendants  against stale claims,  and the discovery  rule is            designed  to accommodate a  plaintiff's interests but  not to            make them trump all others.                  3.   Villarini's third claim--negligence in removing the            muscle  fragment  without  a biopsy--stands  on  a  different            footing.   At the outset  we must make  clear that the record            reveals nothing about the intrinsic merit of this malpractice            claim.   We  do  not know  whether  it  is common,  rare,  or            unthinkable to remove muscle  tissue of this amount,  in this            bodily  location, without determining the presence of cancer.            Nevertheless,  assuming for present purposes that a claim may            exist, we  think that  a reasonable argument  can be  made on            both sides  as to whether  the statute of  limitations debars            this claim.                 In favor of the district  court's view, it is clear that            Villarini  knew  three  weeks after  the  operation  that the                                         -10-                                         -10-            muscle tissue had been removed  without a biopsy and that she            was suffering substantial pain; these  are two of the crucial            facts underlying this claim.  Yet she was promptly assured by            Tomasini, the very  surgeon who had performed  the operation,            that the  removal of  the muscle tissue  had been  proper and            that the  pain was normal  and would  eventually end.   As  a            matter  of common  sense,  and  Puerto  Rico  precedent,  see                                                                      ___            Geigel, 315  D.P.R. at 245,  15 Off.  Trans. at 329,  she was            ______            entitled initially to rely on this prognosis from her doctor.                 The prognosis was  initially borne out because  the pain            in her  back did lessen  and largely disappear over  the next            year and a half.   The new pain, which replaced  the old, was            at least partly  in the  arm.  And  while Villarini might  be            faulted  for not specifically asking the doctors after Palmer            whether the operation had caused  the new pain, at least some            of these specialists were aware  of the operation but none of            the varying diagnoses  she received pointed to  the operation            as a  possible cause, until Ostrow  did so on  June 29, 1989.            Arguably Ostrow's appraisal  at that time was the  first firm            knowledge  Villarini had of  an asserted direct  link between            the operation and  the persistence of  pain elsewhere in  the            body three years after the operation.                 In sum we think that a reasonable factfinder,  while not            necessarily compelled to do so, could find that Villarini did            exercise  due diligence  as to  the third  claim but  did not                                         -11-                                         -11-            obtain  the   necessary  knowledge   until  June   29,  1989.            Tomasini's  reassurances, while  irrelevant  to (or  actually            strengthening) the lack of warning claim, could have lulled a            reasonable person into believing for  a year or more that the            operation had not been botched.   And while Villarini had all            the information  needed to  bring the  lack of warning  claim            within  a few weeks  after the operation,  a factfinder could            conclude that the final  ingredients for the third claim  did            not fall into place until after the pain persisted and Ostrow            gave his opinion.                 Of course, a  jury might not find all of the facts as we            have described them.   In particular, more than  a year prior            to the suit, Palmer did  suggest a link between the operation            and  the continuing  pain.   Perhaps,  as the  district court            apparently  believed,  Palmer's  withdrawal  of this  initial            suggestion  was less firm  than Villarini  now claims.2   But            under the case law previously cited, Villarini is entitled to            the benefit of  her version  of events  in resisting  summary            judgment.   To the  extent that factual  issues remain,  that            itself would be a basis for denying summary judgment.                                            ____________________                 2According  to Villarini,  Palmer  backtracked and  said            that there  seemed to be  "no basis or  relationship" between            the operation and the later pain.   Palmer's own recollection            was  that he  told  Villarini that  causation would  be "very            difficult to  prove" since the  new condition was not  on the            spine  and there  was a  previous history  of scoliosis.   If            there is any disagreement between  these versions, it was for            the jury to resolve.                                         -12-                                         -12-                 Even if  we assume that  all of the pertinent  facts are            known, iron-clad and  complete, the third claim  still cannot            properly be dismissed on summary  judgment.  Whether or not a            case rests  on diversity jurisdiction,  the summary  judgment            standard is a matter of federal  law, for it is settled that,            broadly speaking, in  a federal court federal  law determines            the  respective roles  of trial  judge,  jury, and  reviewing            court.   See generally Molinar  v. Western Electric  Co., 525                     ___ _________ _______     _____________________            F.2d 521,  527 (1st  Cir. 1975), cert.  denied, 424  U.S. 978                                             ____   ______            (1976).3   "Erie does not  require a federal court  to employ                        ____            the state's rules  on the allocation of  issues between judge            and jury."   McEwen, 919 F.2d at  60.  See generally  Byrd v.                         ______                    _____________  ____            Blue Ridge Rural  Electric Cooperative, 356 U.S.  525 (1958);            ______________________________________            Hanna v. Plumer, 380 U.S. 460 (1965).              _____    ______                 Under  federal  case  law,  "[t]he  question  whether  a            plaintiff  has  exercised reasonable  diligence is  usually a            jury question."  Bohus v. Beloff, 950 F.2d 919,  925 (3d Cir.                             _____    ______            1991).   Accord, Nevada Power  Co. v. Monsanto Co.,  955 F.2d                     ______  _________________    ____________            1304, 1307 (9th  Cir. 1992).  Our circuit took  the same view            in Santiago  Hodge, 909 F.2d at 633.   This is not surprising               _______________                                            ____________________                 3E.g.,  Bank of  California v. Opie,  663 F.2d  977, 979                  ____   ___________________    ____            (9th Cir.  1981) (federal summary judgment  standard controls            in  diversity case); Lewis Refrigeration Co. v. Sawyer Fruit,                                 _______________________    _____________            Vegetable and  Cold Storage Co.,  709 F.2d 427, 430  n.3 (6th            _______________________________            Cir.  1983) (majority  of  circuits  follow  federal  law  on            directed  verdict standard); McEwen v. Delta Air Lines, Inc.,                                         ______    _____________________            919 F.2d 58, 59 (7th  Cir. 1990) (federal law controls burden            and order of  raising issues but not  burden of proof  in the            "risk of nonpersuasion" sense).                                         -13-                                         -13-            since  factual disputes are  often important in  passing upon            the statute  of limitations defense.   But even where  no raw            facts  are  in  dispute,  the  issues  of  due  diligence and            adequate knowledge are still ones for the jury so long as the            outcome is  within the range  where reasonable men  and women            can differ.                 Strictly speaking, due  diligence and adequate knowledge            in this case may not turn on disputed issues of fact; rather,            the outcome may  depend only  on the  application of  general            standards  to known facts.   But juries  make these normative            judgments all the time in negligence cases, and jurors are no            less  well equipped  to decide what  a reasonable  lay person            would  and should  do when  faced  with a  certain amount  of            information  about a medical  problem and the  possibility of            malpractice.   Indeed, one  may have  more confidence in  the            jury's ability  to  decide such  a  question than  to  decide            whether  a complex machine  is properly designed,  the staple            question  in products liability  litigation.  In  all events,            the case  law  favoring  a  jury  decision  on  such  "mixed"            questions has worn a deep groove.                 Accordingly, we  conclude that  where a  reasonable jury            could  find that the  plaintiff lacked knowledge  despite due            diligence,  the statue of  limitations issue in  a discovery-            rule jurisdiction should  not be withdrawn  from the jury  by            summary judgment.  This is  so even though the raw facts  are                                         -14-                                         -14-            largely undisputed and even though the trial judge--acting as            an independent  decisionmaker--might reasonably  believe that            the plaintiff  was not diligent.4   This is a  description of            the third claim in  our case, at least at  the present stage.            What it will  look like after the plaintiff  rests is another            matter.   4.   The fourth  claim concerns Tomasini's  alleged            failure to provide  proper treatment for Villarini  after the            operation.     There  is  no  indication  in  the  complaint,            Villarini's opposition to summary judgment, or briefs in this            court  of the facts comprising this claim: what treatment was            omitted, how  the omission  affected Villarini,  or when  she            learned of the pertinent facts to support this claim.                 We conclude that  the grant of summary  judgment must be            sustained as to this claim.  Villarini was in Tomasini's care            only for  a limited period  after the operation; there  is no            indication  that Tomasini's role continued into 1988 or 1989.            Accordingly, his supposed omissions or improprieties in post-            operative treatment  occurred well  over a  year before  this            suit  was  brought.   It  was  Villarini's  responsibility in            opposing summary judgment to assert  facts that (if proved at            trial) would  allow a  jury to find  that the  discovery rule                                            ____________________                 4See  Greenburg   v.  Puerto   Rico  Maritime   Shipping                  ___  _________       __________________________________            Authority,  835 F.2d  932,  936 (1st  Cir. 1987)  (on summary            _________            judgment,  there is  no room  "for  the measured  weighing of            conflicting evidence . . .  [or] for the judge to superimpose            his own  ideas of probability  and likelihood (no  matter how            reasonable those ideas may be)").                                         -15-                                         -15-            requirements  were met,  specifically,  a  lack of  knowledge            despite an exercise of due diligence.5                 No  such facts  were asserted in  the district  court by            Villarini  to show lack  of knowledge despite  due diligence.            Indeed,  even  in  this  court  Villarini's  brief  does  not            separately  address   the  treatment   claim,  describe   the            underlying  misconduct or give  any reason to  think that the            discovery  rule applies  to this  claim,  brought four  years            after  the  underlying  events.   Since  we  do not  normally            consider claims on  appeal that are not  substantially argued            in the briefs, this claim may be lost twice over.                 The judgment of the district court is affirmed as to the                                                       ________            consent, failure to warn and post-operative treatment claims.            As  for the claim  based on removal  of the  muscle without a            biopsy, the  judgment is  vacated and  the case remanded  for                                      _______               ________            further proceedings consistent with this opinion.  No costs.                                            ____________________                 5   See Fragoso v.  Lopez, 991  F.2d 878, 887  (1st Cir.                     ___ _______     _____            1993)  (burden of proof  to show lack of  knowledge is on the            plaintiff who  sues  more than  one  year after  the  event);            Hodge,  833  F.2d  at  7  (same),  citing  Illuminada  Rivera            _____                                      __________________            Encarnacion  v. Estado  Libre Asociado  de  Puerto Rico,  113            ___________     _______________________________________            D.P.R. 383, 385, 13 Off. Trans. 498, 501 (1982).                                         -16-                                         -16-
