         United States Court of Appeals
                    For the First Circuit


No. 99-2193


 PEDRO MUÑIZ CORTES and the estate of CLOTILDE DIAZ SUSTACHE,
      composed by PEDRO ANGEL MUÑIZ DIAZ, LUIS MUÑIZ DIAZ,
        JOSE ISMAEL MUÑIZ DIAZ, MARIA ANTONIA MUÑIZ DIAZ,
         MARIA ELENA MUÑIZ DIAZ, LYDIA MARIA MUÑIZ DIAZ,
    JORGE M. MUÑIZ DIAZ, MIRIAM MUÑIZ CABAN, and DIANA MUÑIZ
                              CABAN,

                   Plaintiffs, Appellants,

                              v.

 INTERMEDICS, INC., SULZER INTERMEDICS, INC., ABC COMPANY AND
                    XYZ INSURANCE COMPANY,

                    Defendants, Appellees.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

       [Hon. Daniel R. Domínguez, U.S. District Judge]


                            Before

                     Selya, Circuit Judge,
                Bownes, Senior Circuit Judge,
                  and Stahl, Circuit Judge.


     Ulpiano Falcón Matos, with whom Roberto Rafols Dávila was
on brief for appellants.

     Joseph J. Leghorn, with whom Maria De Los A. Garay and
Manuel E. Andreu Garcia were on brief for appellees.
October 3, 2000




       2
            BOWNES, Senior Circuit Judge.             Plaintiff-appellants

Pedro Muniz Cortes and the estate of Clotilde Diaz Sustache

appeal from the district court's order of summary judgment

dismissing claims against defendant-appellees.                We affirm.

                                       I.

            On December 14, 1994, Clotilde Diaz Sustache had a

pacemaker surgically implanted at the Hospital Bella Vista in

Mayaguez,    Puerto    Rico.     The    pacemaker     was   manufactured    by

Intermedics.      After this pacemaker failed, a second Intermedics

pacemaker was implanted.          On August 18, 1995, following the

failure of the second pacemaker, Diaz Sustache died.

            On January 12, 1996, appellants filed a complaint

against Intermedics and others in the Superior Court of Puerto

Rico.     Appellants sought damages from Intermedics pursuant to

Article    1802   of   the   Puerto    Rico   Civil   Code,   alleging     that

"manufacturing defects, design defects and/or insufficiency in

the warnings of the pacemakers and/or electrodes implanted in

the deceased were the proximate and immediate cause of her

death."    On August 8, 1997, the Superior Court entered partial

summary judgment in favor of Intermedics on the ground that the




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Medical Device Amendments to the Food, Drug and Cosmetics Act,

21 U.S.C. § 360c et seq., preempted appellants' claims.1

                 Appellants did not appeal from the superior court's

order of judgment.          Rather, they filed another complaint against

Intermedics and others, this time in the United States District

Court      for    the   District    of    Puerto     Rico.         There,   appellants

reiterated their claim that Intermedics acted negligently under

Article 1802 of the Puerto Rico Civil Code; they also alleged

that       Intermedics      failed       to    comply    with        Food    and    Drug

Administration           regulations          with   regard    to    the    pacemaker.

Intermedics         moved   for    summary      judgment      on    the    ground   that

appellants' claims had already been adjudicated by the Superior

Court of Puerto Rico and therefore were precluded.                         The district

court allowed Intermedics' motion for summary judgment on the


       1
     The superior court based its determination on 21 U.S.C.
§ 360k(a), which provides:

       Except as provided in subsection (b) of this section,
       no State or political subdivision of a State may
       establish or continue in effect with respect to a
       device intended for human use any requirement–

       (1) which is different from, or in addition to, any
       requirement applicable under this chapter to the
       device, and

       (2) which relates to the safety or effectiveness of
       the device or to any other matter included in a
       requirement applicable to the device under this
       chapter.


                                          -4-
grounds of "res judicata and/or collateral estoppel."                  Muniz

Cortes v.    Intermedics, Inc., 63 F. Supp.2d 160, 165 (D.P.R.

1999).

                                  II.

            Appellants contend that the district court erred in

determining that preclusion barred their complaint.              We review

a summary judgment de novo, viewing the record in the light most

favorable to the nonmoving party to determine whether there

exists a genuine issue of material fact.          See Sheehy v. Town of

Plymouth, 191 F.3d 15, 19-20 (1st Cir. 1999).

            Federal courts must give full faith and credit to final

judgments    of   the   Commonwealth    of   Puerto   Rico   courts.     See

Baez-Cruz v. Municipality of Comerio, 140 F.3d 24, 28 n.1 (1st

Cir.   1998);     see also 28 U.S.C. § 1738.           To determine the

preclusive effect of such a judgment in federal court, we look

to Puerto Rico law.       See 28 U.S.C. § 1738; Cruz v. Melecio, 204

F.3d 14, 18 (1st Cir. 2000).           The Puerto Rico Civil Code sets

forth the operation of the doctrine of preclusion:

            In order that the presumption of the res
            judicata may be valid in another suit, it is
            necessary that, between the case decided by
            the sentence and that in which the same is
            invoked, there be the most perfect identity
            between the things, causes, and persons of
            the litigants, and their capacity as such.




                                  -5-
P.R. Laws Ann. tit. 31, § 3343.               Although this provision speaks

of "res judicata," it additionally permits issue preclusion or

collateral        estoppel.         See    Baez-Cruz,       140        F.3d    at     29.

Accordingly, the Supreme Court of Puerto Rico has held that when

an issue "essential to the prior judgment is actually litigated

and determined by a valid and final judgment, the determination

is   conclusive      in   subsequent       litigation     among        the    parties."

Felix Davis v. Vieques Air Link, 892 F.2d 1122, 1124-25 (1st

Cir. 1990) (citing Pereira v. Hernandez, 83 P.R.R. 156, 161

(1961)).

             Appellants contend that res judicata does not apply

because the superior court's preemption ruling deprived that

court   of   subject      matter     jurisdiction.         It     is    true    that    a

dismissal     for    lack     of    subject     matter    jurisdiction          is    not

considered to be "on the merits," and therefore is without res

judicata     effect.        See    Northeast     Erectors    Ass'n       of    BTEA    v.

Secretary of Labor, Occupational Safety & Health Admin., 62 F.3d

37, 44 (1st Cir. 1995); 18 Charles Alan Wright, Arthur R. Miller

& Edward H. Cooper, Federal Practice & Procedure § 4436 (1981)).

             We    have   some     doubt   about    the    proposition          that    a

dismissal on preemption grounds is not merits-based.                           But even

assuming arguendo that res judicata does not bar the federal

district     court     from       adjudicating     appellants'          claims,       the


                                          -6-
doctrine     of    collateral     estoppel     prevents   the    court      from

rehearing the       issue of preemption.2         Dismissal for lack of

subject matter jurisdiction precludes relitigation of the issues

determined    in    ruling   on   the    jurisdictional   question.          See

Wright, Miller & Cooper, supra; cf. Railway Labor Executives'

Ass'n v. Guilford Transp. Indus., Inc., 989 F.2d 9, 11 (1st Cir.

1993)   (determination       of   lack    of   jurisdiction     was   "on    the

merits"); Walsh v. International Longshoremen's Ass'n, AFL-CIO,

630 F.2d 864, 870 (1st Cir. 1980) (same).             Here, to the extent

that the superior court determined that it had no jurisdiction

over the matter, it was on the ground that appellants’ "causes

of action for defects in manufacture, design or inadequate

warning" were preempted by the Medical Device Amendments.3 Under

this ruling, the Amendments would preempt appellants' claims in




    2As noted supra, the district court's opinion rested on the
dual grounds of res judicata and/or collateral estoppel. See
Muniz Cortes, 63 F. Supp.2d at 165.
    3Intermedics concedes that the superior court may have erred
in holding that the claims were preempted in light of recent
Supreme Court law. See Medtronic, Inc. v. Lohr, 518 U.S. 470
(1996).    Substantive error, however, does not deprive a
procedurally adequate judicial proceeding of preclusive effect.
See Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398
(1981) ("[a] judgment merely voidable because based upon an
erroneous view of the law is not open to collateral attack, but
can be corrected only by a direct review and not by bringing
another action"); Cruz, 204 F.3d at 19 (citing Bolker v.
Superior Court, 82 P.R.R. 785, 799-800 (1961)).

                                        -7-
federal      court    as    well   as   in    the    superior    court.        Hence,

appellants may not relitigate the issue of preemption.

             Appellants also take issue with the district court's

conclusion that there existed "perfect identity between the

things, causes, and persons of the litigants" as required under

the Puerto Rico law of preclusion.                  See P.R. Laws Ann. tit. 31,

§ 3343.   They point out that the complaint filed in the superior

court was limited to commonwealth law, while the complaint filed

in federal district court alleged that the pacemaker failed to

comply with FDA regulations.             Therefore, appellants argue, their

"causes" were not identical with the meaning of § 3343.

             The     fact   that   appellants        advanced    different      legal

theories does not undermine the identity of causes, because the

commonwealth law claim presented in the superior court arose

from   the    pacemaker        failure,      just    as   did   the   claims    later

presented     to     the    federal     district      court.      See   Boateng    v.

InterAmerican Univ., Inc., 210 F.3d 56, 62 (1st Cir. 2000) (no

right to bring separate and successive suits on different legal

theories arising out of a single nucleus of operative facts)

(applying Puerto Rico law).             A claim is precluded not only if it

was actually raised in a previous suit, but if it could have

been raised.         See id.




                                          -8-
            Finally, appellants contend that they are exempt from

the   usual    rules    of    preemption       on    the    ground   that   "its

application would defeat the ends of justice, especially in the

presence of public policy considerations."                  Baez-Cruz, 140 F.3d

at 30 (citing Pagan Hernandez v. University of Puerto Rico, 107

P.R. Offic. Trans. 795, 807 (1978)) (internal quotation marks

omitted).     We see nothing in the facts of this case to support

such an exception.       Appellants freely chose to litigate in the

superior court and then to forego appeal; "public policy does

not require giving them a chance to revisit [those] choice[s]."

Id.

            Accordingly, we affirm the district court's grant of

summary judgment to Intermedics.             Because we decide this case on

preclusion    grounds,       we   do   not   reach    the    issue   of   whether

appellants have a private right of action against Intermedics

under the Medical Device Amendments, 21 U.S.C. § 360c et seq.

            Affirmed.




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