
USCA1 Opinion

	




                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                ____________________          No. 96-2149                            EDNA RODRIGUEZ-SURIS, ET AL.,                              Plaintiffs - Appellants,                                         v.                             BERTHA MONTESINOS, ET AL.,                               Defendants - Appellees.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Daniel R. Dominguez, U.S. District Judge]                                ____________________                                       Before                                Selya, Circuit Judge,                             Cyr, Senior Circuit Judge,                            and Keeton,  District Judge.                                _____________________               Kevin G. Little for appellants.               Joe                    W.                       Redden,                               Jr., with whom  Curt                                                    Webb, Linda                                                                K.                                                                    McCloud,          Beck, Redden & Secrest                               ,                                  Edna Hernandez                                                and                                                    Reichard & Escalera                                                                       were          on brief for appellees.                                ____________________                                   August 11, 1997                                ____________________                                         Of the District of Massachusetts, sitting by designation.                    KEETON, District                                        Judge. In this diversity action,          plaintiffs-appellants sued defendants-appellees for injuries          sustained after receiving facial collagen injections from defendant          Bertha Montesinos. Plaintiffs filed their complaint nearly four          years after receiving the injurious injections. The district court          granted summary judgment in favor of both defendants (Montesinos          and Collagen Corporation), holding that all of plaintiffs' claims          were barred by the one-year Puerto Rico statute of limitation          applicable to tort actions. 935 F. Supp. 71 (D.P.R. 1996). We          reverse and remand with directions, as explained.                                 I. Issues Presented                    The principal legal issues in dispute in this case          concern limitation of tort actions under the law of Puerto Rico.          More precisely, the dispute centers on the meaning of statutory          provisions and opinions of courts of Puerto Rico interpreting them,          particularly with respect to levels of awareness of injury, source          of injury, causal connection, and legal responsibility.                    To what extent is the running of the statutory time limit          of one year for the filing of tort actions for damages affected by          lack of awareness of injury, a connection between injury and the          personal services or other conduct of a person, and legal          responsibility for the injury?                    To what extent is the running of the statutory time limit          of one year affected by lack of awareness of a connection between                                         -2-          injury and a product of a manufacturer or other supplier of the          product?                    To what extent is the running of the limitation period          affected by the representations of the person who caused the          injury, or of third persons, regarding the nature and source of a          plaintiff's injury?                    Answers to these questions must be determined as matters          of law. Accordingly, this court reviews the district court's          rulings on these issues de novo.                    The matters of law we are deciding, of course, are          matters of the law of Puerto Rico. Both in the district court and          in this court on appeal, the determination of these questions of          law does not involve any discretion to fashion rules of law.          Instead, our objective is solely to determine what is the law as          indicated by authoritative sources. Primary among these          "authoritative sources" are the plainly expressed holdings of the          highest court of Puerto Rico.   See, e.g.,  Daigle v. Maine                                                                        Med.          Ctr.,                  Inc., 14 F.3d 684, 689 (1st Cir. 1994) (noting that in          applying state law, a federal court is "absolutely bound by a          current interpretation of that law formulated by the state's          highest tribunal"). Where a jurisdiction's highest court has not          spoken on a precise issue of law, we look to "analogous state court          decisions, persuasive adjudications by courts of sister states,          learned treatises, and public policy considerations identified in          state decisional law" in order to make an "informed prophecy" of                                         -3-          how the state court would rule on the precise issue.  Blinzler v.          Marriott Int'l, Inc., 81 F.3d 1148, 1151 (1st Cir. 1996).              II. Puerto Rico Law Regarding the Statute of Limitation          A. An Overview                    The Puerto Rico statute of limitation for tort actions          provides for a one-year limitation period that begins to run from          "the time the aggrieved person has knowledge of the injury." P.R.          Laws Ann. tit. 31, S 5298 (1994). Plaintiff bears the burden of          proving when the "damage" became known.    Rivera                                                             Encarnacion v.          Comm. of Puerto Rico                             , 113 P.R. Dec. 383, 385, 13 P.R. Offic. Trans.          498, 501 (1982).                    What is it that one must know in order to have "knowledge          of the injury?" The Supreme Court of Puerto Rico has stated that          a plaintiff will be deemed to have "knowledge" of the injury, for          purposes of the statute of limitation, when she has "notice of the          injury, plus notice of the person who caused it." Colon Prieto                                                                         v.          Geigel, 115 P.R. Dec. 232, __ (1984), 15 P.R. Offic. Trans. 313,          330 [citations hereafter to P.R. Offic. Trans.]. See also                                                                                                                                        Fragoso          v. Lopez, 991 F.2d 878, 886 (1st Cir. 1993);   Santiago                                                                   Hodge v.          Parke Davis & Co.                          , 909 F.2d 628, 632 (1st Cir. 1990);                                                               Barretto Peat          v. Luis                   Ayala                         Colon                                Sucrs., 896 F.2d 656, 658 (1st Cir. 1990);          Hodge v. Parke Davis & Co., 833 F.2d 6, 7 (1st Cir. 1987).                    "Notice of the injury," as explained in a later case, is          established by proof of:                      some outward or physical signs through                      which the aggrieved party may become aware                                         -4-                      and realize that he [or she] has suffered                      an injurious aftereffect, which when known                      becomes a damage even if at the time its                      full scope and extent cannot be weighed.                      These circumstances need not be known in                      order to argue that the damage has become                      known, because its scope, extent and                      weight may be established later on during                      the prosecution of the remedial action.          Delgado Rodriguez                           v.                               Nazario de Ferrer                                               , No. CE-86-417, slip op. at          10 (Official English Translation) (P.R. May 16, 1988) (quoting H.          Brau del Toro,                         Los Danos y Perjuicios Extracontractuales en Puerto          Rico 639-40, Pub. J.T.S., Inc. (2d ed. 1986)) (internal quotation          marks omitted). Once a plaintiff is on "notice of the injury," the          plaintiff may "not wait for his [or her] injury to reach its final          degree of development and postpone the running of the period of          limitation according to his [or her] subjective appraisal and          judgment."  Ortiz v. Municipality of Orocovis, 113 P.R. Dec. 484,          487, 13 P.R. Offic. Trans. 619, 622 (1982).                    In some circumstances, awareness of the existence of an          injury, on its own, will not be enough to trigger the running of          the limitation period. See,                                       e.g.,                                             Galarza v.                                                        Zagury, 739 F.2d 20,          24 (1st Cir. 1984) (stating that "knowledge of the author of the          harm means more than an awareness of some ill effects resulting          from an operation by a particular doctor"). If a plaintiff is not          aware of some level of reasonable likelihood of legal liability on          the part of the person or entity that caused the injury, the          statute of limitation will be tolled. In other words, a plaintiff          must also have "knowledge of the author of the injury," a concept                                         -5-          articulated at length in the Supreme Court of Puerto Rico's          decision in Colon Prieto.                     In Colon                                Prieto, the plaintiff experienced pain and          insensitivity in his tongue following dental surgery in November          1971. 15 P.R. Offic. Trans. at 317. Geigel, the dental surgeon,          told plaintiff that he had bitten himself on the tongue and that          the symptoms would subside in a short while.                                                       Id. For over a year,          Colon Prieto continued to see Geigel, who told him that the pain          would go away. Id. But the symptoms did not subside. In November          1972, plaintiff consulted with another physician, and learned for          the first time that the pain was the result of Geigel's having cut          a nerve during the initial operation.                    Colon Prieto brought suit against Geigel on September 10,          1973, more than one year after the original operation. Geigel          asserted the statute of limitation as a defense. The Supreme Court          of Puerto Rico rejected Geigel's defense, holding that, because          Colon Prieto did not acquire knowledge of the nature of his injury          and Geigel's role in the injury until the November 1972          consultation with the other doctor, plaintiff was not barred under          the Puerto Rico statute of limitation.                    Distinguishing Colon Prieto's case from the more          traditional tort case in which a plaintiff is aware from the moment          of the tortious act of the injury and its cause (for example, where          a defendant's act causes something to fall on a plaintiff          immediately), the Supreme Court of Puerto Rico observed that the          statutory phrase "'                            from the time the aggrieved person had knowledge                                         -6-          thereof' ... rejects a literal and narrow reading."  Id. at 327.          The court noted that the legal reasoning behind a plaintiff's loss          of rights under a statute of limitation is that the plaintiff is          deemed to have abandoned those rights.   Id. (quoting A. Borrell          Macia,                 Responsabilidades Derivadas de Culpa Extracontractual Civil                                                                          ,          66, Barcelona, Ed. Bosch (2d ed. 1958)). In order for this legal          reasoning to apply, therefore, "such abandonment [on the part of          the plaintiff] should really exist."  Id.          B. Three Analytically Separable Questions                    We conclude that within the larger structure regarding          the law of Puerto Rico on limitation of tort actions are three          analytically separable subsidiary issues. These issues concern the          circumstances in which a plaintiff can be said to have, or to lack,          the requisite level of awareness for statute of limitation          purposes.                    First, the concept of "true knowledge" applies where a          plaintiff is actually aware of all the necessary facts and the          existence of a likelihood of a legal cause of action. Second,          concepts of "notice" and "deemed knowledge" apply. Under these          concepts a plaintiff's subjective awareness is measured against the          level of awareness that the plaintiff, having been put on notice as          to certain facts and having exercised reasonable care regarding a          potential claim, should have acquired. Third, the law or Puerto          Rico recognizes an exception to applicability of the concepts of          notice and deemed knowledge for circumstances in which a                                         -7-          plaintiff's failure to make a timely filing of a claim is          reasonably based upon the assurances of the person who caused the          injury.                    From a structural perspective, two of these questions          (about true knowledge and deemed knowledge) concern alternative          ways in which a defendant may establish that a claim is barred          because it is filed too late. If the defendant succeeds in showing          that plaintiff has not satisfied, or cannot satisfy, plaintiff's          burden of proving lack of true knowledge (that is, lack of full          awareness of all that need be known to preclude tolling), final          judgment for the defendant on the ground of late filing is          appropriate.                    If, instead, the finder of fact finds (or the court, by          determining that the evidence of record is so one-sided as to          compel a finding) that the plaintiff was aware of enough facts to          constitute notice and to satisfy the deemed knowledge rule of the          Puerto Rico law of limitation of tort actions, final judgment for          the defendant on the ground of late filing is appropriate  unless          plaintiff has proffered evidence sufficient to support a finding          that representations and assurances by the defendant persuaded          plaintiff to rely reasonably and delay institution of a civil          action.                    The "unless" clause in the next preceding sentence may be          treated either as a condition to be satisfied before the deemed          knowledge rule applies, or as a negation of an otherwise adequate          showing of applicability of the deemed knowledge rule. Under                                         -8-          either analytic treatment of the substantive requirement of the          legal test for deemed knowledge, this substantive requirement is          the third of the analytically separable issues to which we referred          above. It creates another possibility of a plaintiff's showing          that a genuine dispute of material fact precludes a judgment as a          matter of law for the defendant on the limitation ground.                    1. Full Awareness:                                                                                A Subjective Component of the Legal                    Test                    In circumstances where a plaintiff has not abandoned a          cause of action, but instead was never aware that such a cause of          action existed, the statute of limitation would not operate as a          bar to the exercise of the plaintiff's legal rights.   See  Colon          Prieto, 15 P.R. Offic. Trans. at 327-328. As the court noted in          Colon                 Prieto, a plaintiff who is not aware of the existence of a          cause of action is essentially incapable of bringing suit within          the limitation period.     Id. at 327. The emphasis on the          plaintiff's "subjective" ability to bring suit is justified, at          least in part, by the brevity of the limitation period.   Id. at          328.                    Reasoning from these premises, the Supreme Court of          Puerto Rico held that, in order for the limitation period to start          to run, a plaintiff must be able to institute suit, which requires          knowledge of the existence of an injury and knowledge of the person          who caused the injury. Knowledge of who caused the injury, the          court held, was necessary so that the plaintiff would know whom to          sue.  Id. at 330 (quoting I A. Barrell y Soler,    Derecho                                                                       Civil          Espanol 500, Barcelona, Ed. Bosch (1955)).                                          -9-                    In setting forth this standard, the court in                                                                Colon Prieto          stated that it was adopting a "subjective" standard.  Id. at 328.          In the law of Puerto Rico, a legal test of this kind is sometimes          referred to as grounded in the "cognitive" theory of damages.                                                                        See,          e.g., Barretto Peat, 896 F.2d at 657 (describing S 5298 of Puerto          Rico's Civil Code as codifying the cognitive theory).                    To understand this component of the applicable legal          test, for the purpose of applying it to the case now before us, we          must understand what level of awareness is required as to          particulars of the injury and its source. Was the source in          personal services, or in some other form of conduct of some          identifiable person, or in a product used or supplied by some          person and obtained through a chain of distribution involving one          or more others, including a manufacturer?                    Under the law of Puerto Rico, the plaintiff's level of          awareness about these matters may be relevant in more than a single          way, bearing upon more than a single sub-issue.                      First. What effect is to be given to evidence, if          creditworthy, of the effect that post-injury conduct of a person          who was a cause of the injury, or post-injury conduct of other          persons, had on plaintiff's refraining from or delaying instituting          suit?                    Second. What more would the plaintiff have learned about          the injury and authorship of the injury if the plaintiff, having          notice in the sense of awareness of some facts, had then made the          inquiries that a careful person would have made?                                        -10-                    2. Notice and Deemed Knowledge:                                                                                                        The Objective Component                    We understand the court in  Colon                                                        Prieto to have been          speaking quite explicitly to the second of these two questions          (stated immediately above) in the passage of the opinion noting          that, if a plaintiff's ignorance of an injury and its origin was          due to the plaintiff's own negligence or lack of care, then the          statute of limitation would not be tolled.  See Colon                                                                 Prieto, 15          P.R. Offic. Trans. at 327-29 (quoting A. Borrell Macia,          Responsabilidades Derivadas de Culpa Extracontractual Civil                                                                    344-345          (Bosch ed. 2d ed. 1958)). This point is associated with the level          of awareness implicit in the concept of notice.                     The law of Puerto Rico treats a person as being aware of          all that, having awareness constituting notice, that person would          have been likely to come to know through the exercise of care.          Thus, we understand the holdings of Puerto Rico decisions to mean          that "actual knowledge is not required where, by due diligence,          such knowledge would likely have been acquired." Villarini-Garcia          v. Hospital del Maestro, Inc., 8 F.3d 81, 84 (1st Cir. 1993). It          follows, then, that to determine the point at which a plaintiff          should be held responsible for the required level of awareness of          whether another particular person was an author of the injury, a          court looks to "whether plaintiff knew or with the degree of          diligence required by law would have known whom to sue."                                                                   Kaiser v.          Armstrong                      World                             Indus., 872 F.2d 512, 516 (1st Cir. 1989)          (citations and internal quotation omitted).                                         -11-                    Once a plaintiff is made aware of facts sufficient to put          her on notice that she has a potential tort claim, she must pursue          that claim with reasonable diligence, or risk being held to have          relinquished her right to pursue it later, after the limitation          period has run.  See, e.g., Villarini, 8 F.3d at 85.                    In Villarini, a plaintiff was made aware of facts          sufficient for her to be able to file suit (as to two of her          claims) three weeks after her operation. We held that the          plaintiff was time-barred from bringing those claims roughly two          and a half years later.  Id. We recognized in  Villarini that the          plaintiff may not have understood fully the legal significance of          the facts known to her after her operation, but also recognized          that the meaning of authoritative declarations of the law of Puerto          Rico is that "there is nothing unfair in a policy that insists that          the plaintiff promptly assert her rights." Id. Thus, plaintiff's          failure to consult with a lawyer or otherwise investigate the claim          to which she had been alerted by the factual circumstances          associated with the operation barred her from commencing that claim          in the courts over one year after being on notice.  Id.                    Similarly, once a plaintiff is put on notice that someone          or some entity is the cause of the injury, the plaintiff may not          succeed in a late-filed claim by asserting ignorance about the          precise identity of the tortfeasor. Also, because corporate          identities and intracorporate relationships are a matter of public          record, knowledge of the precise corporate identity of the entity          responsible for a plaintiff's injury is not required before the                                        -12-          period prescribed by the statute of limitation begins to run. See          Hodge v. Parke Davis & Co., 833 F.2d 6, 7-8 (1st Cir. 1987).                    3.  An Exception to the Rule of Notice                    An exception to the rule of notice (the objective          component of the law of limitation of tort actions) is recognized.          If a plaintiff's suspicions that she may have been the victim of a          tort are assuaged by assurances made by the person who caused the          injury, a plaintiff will not be held responsible for failing to          pursue her claim more aggressively.  Colon Prieto, 15 P.R. Offic.          Trans. at 329-330.                    In addition to holdings discussed above (in explanation          of both the subjective and the objective components of the law of          Puerto Rico), the court in   Colon                                                Prieto held that, where the          plaintiff's doctor (the person responsible for causing the injury)          assured the plaintiff that the pain was normal and was due to          plaintiff's biting his tongue during the operation, the plaintiff          would not be held to have "known" of the injury and the cause until          the later consultation. This ruling, the court observed, was                      the fairest and most equitable. We                      safeguard the aggrieved party's right to                      seek redress, while we abstain from                      rewarding the person who, having caused                      the damage, took refuge in his patient's                      trust and ignorance trying to avail                      himself of the circumstances in order to                      defeat the action.          Id. at 330.                     In this context, where a diligent plaintiff reasonably          relies upon representations made by a tortfeasor that her symptoms          are not the result of a negligent or otherwise tortious act, that                                        -13-          plaintiff is not barred, because of her "own negligence or lack of          care," from the benefit of tolling of the limitation period.  See          Colon                  Prieto, 15 P.R. Offic. Trans. at 329-330.         See                                                                         also          Villarini, 8 F.3d at 85-86. Stated another way, the condition          attached to a plaintiff's right of tolling -- the condition that          she act with care to make additional inquiries once she is on          notice -- does not apply (or is excused, or negated) when the          plaintiff reasonably relies on what others told her. The reliance,          however, must be reasonable, and the determination of the          reasonableness of a plaintiff's reliance on the assurances of          others involves an evaluation that, depending upon the          circumstances, may or may not be a question for the finder of fact,          and thus may or may not preclude summary judgment. See                                                                  id. at 86-          87.                    Where facts sufficient to support every element of a          claim relating to an injury are apparent to a plaintiff at an          earlier time, it will not be reasonable for the plaintiff to rely          on assurances of a tortfeasor and fail to pursue the claim.   See          id. at 86 (where plaintiff had all the information necessary for          a failure-to-warn claim, doctor's subsequent reassurances would not          excuse plaintiff's lack of diligence in pursuing the claim). Our          holdings, moreover, support the conclusion that a time will come at          which, if the tortfeasor's initial predictions are not borne out,          a plaintiff's reliance is no longer reasonable.    Id. Finally,          representations made by third-party doctors constitute another          factor to consider in determining whether a plaintiff's continued                                        -14-          reliance upon the reassurances of a tortfeasor is reasonable. See          Villarini, 8 F.3d at 86 (holding that varying diagnoses of          different doctors, along with the reassurances of the negligent          physician, "could have lulled a reasonable person into believing          for a year or more that the operation had not been botched").           C. Summary                    In sum, we conclude (1) that within the larger questions          regarding the law of Puerto Rico on limitation of tort actions are          three analytically separable subsidiary questions; (2) that from a          structural perspective, two of these questions (about true          knowledge and deemed knowledge) concern alternative ways a          defendant may establish that a claim is barred because filed too          late; (3) that, if on the evidence proffered in a case, a finder of          fact might reasonably find that representations and assurances          persuaded plaintiff to rely reasonably and delay institution of a          civil action, summary judgment for defendants would be          inappropriate; and (4) that this remains true even if the record          would otherwise require judgment for defendant under the rule of          notice and deemed knowledge.                               III. Record for Review          A. Factual Background                    Collagen is a natural protein found throughout the body          that provides support to other bodily tissues, including the skin.          Since the 1970s, collagen obtained from animals has been used in a                                        -15-          variety of medical procedures, including procedures designed to          improve the consistency and appearance of the skin. Defendant          Collagen Corporation manufactures and distributes at least two          types of bovine collagen (derived from cows), called Zyderm and          Zyplast. Both can be injected under the skin to improve the          appearance and structure of the skin. Collagen's products are          distributed only to be sold to and administered by licensed          physicians.                    In 1989, each of the plaintiffs, Edna Rodriguez-Suris          ("Rodriguez"), Maria Rosa Gonzalez San Juan de Cortes ("Gonzalez"),          Annette Perez de Pedreira ("Pedreira"), and Vanessa Perez de          Fernandez ("Fernandez"), received collagen injections from          defendant Bertha Montesinos. Montesinos, who was not a licensed          physician, obtained injectable collagen from a doctor in Miami,          Florida, and administered the injections at her apartment in          Santurce, Puerto Rico. In each instance, Montesinos injected          collagen into the forehead (between the eyebrows) and along the          "expression lines" surrounding the nose and lips of each of the          plaintiffs. None of the plaintiffs saw the material that was          injected. In some instances, Montesinos provided the plaintiff          with a brochure describing cosmetic collagen treatments, but none          of the plaintiffs saw Collagen Corporation product packaging or          inserts. In the fall of 1989, Montesinos gave each of the          plaintiffs a treatment involving injections. Shortly thereafter,          each plaintiff developed hard red nodules or bumps at the sites of          the injections.                                        -16-                    In the following summary of the evidence of record with          respect to each plaintiff's history of treatment and consequences,          we state the evidence as a finder of fact might find by a          preponderance of the evidence, where any genuine dispute exists,          since our purpose is to determine whether summary judgment for          defendants is appropriate.                    1.  Rodriguez                    Plaintiff Rodriguez went to Montesinos for injections for          the third time in November 1989. Immediately after the treatment,          Rodriguez developed a redness, accompanied by a burning sensation,          around the area of the injections. Although the burning sensation          subsided within a week, Rodriguez was left with a "red, raised          ridge" on both sides of her nose and mouth. Over the next two and          a half years, Rodriguez received three to four more collagen          injections from Montesinos, who assured her that the marks would          gradually go away. The ridge, however, remained hard and did not          diminish in size. Rodriguez last saw Montesinos in March 1992.                    Rodriguez spoke informally with two doctors about her          problem. In late November 1989, Rodriguez talked with Dr. Robert          Nevarez, a plastic surgeon, during a party they were both          attending. Rodriguez told Dr. Nevarez that she had received          collagen injections and that the red marks were a reaction to the          injections. Dr. Nevarez said that he thought that the marks were          an adverse reaction to collagen, but that they would go away.          Nevarez told Rodriguez to come to his office for a consultation,          but the plaintiff never followed up. At another social event some                                        -17-          time between 1989 and 1992, but closer to 1989, Rodriguez talked          with Dr. Pedro Borras, a neurosurgeon, who told her that if the          marks were a reaction to collagen, then they would go away.                     In September 1992, Rodriguez went to see Dr. Tolbert          Wilkinson in San Antonio, Texas, at which time, according to          Rodriguez, she first learned that the marks had been caused by          products of defendant Collagen Corporation and would be permanent.                    2.  Fernandez                    Plaintiff Fernandez, sister of plaintiff Pedreira,          received her third collagen injection treatment from Montesinos in          October 1989. Fernandez did not see what was injected into her          face. The evening after her third treatment, Fernandez noticed          "slightly raised and red" marks in the places where she had been          injected. When the marks did not disappear as she expected,          Fernandez went to see Dr. David Latoni-Cabanillas, a dermatologist,          in early 1990. Fernandez told Dr. Latoni that she received          collagen injections from Montesinos in the areas where she          developed the marks. Dr. Latoni said that the marks looked          "strange" to him, and that he did not know if they would go away.                    Dr. Latoni attempted to treat Fernandez' symptoms with          various techniques, including injections of other material and          dermabrasion. His attempts to remedy her symptoms were          unsuccessful. Fernandez also had a discussion with Montesinos, who          told plaintiff that the marks would go away.                     In September 1992, Fernandez consulted with Dr. Wilkinson          in San Antonio. Fernandez claims that she was not aware of the                                        -18-          source and extent of her injuries until the meeting with          Dr. Wilkinson.                    3.  Gonzalez                    Plaintiff Gonzalez received two treatments from          Montesinos in 1989 and two or three in 1990 or 1991. Gonzalez did          not see the material injected into her face, or any packaging, but          Montesinos told her that it was "animal collagen." Gonzalez          received her second series of collagen injections on October 24,          1989. The day after this second series, Gonzalez developed a rash-          like reaction at the sites of the injections.                     A few months after the development of the rash, Gonzalez          consulted Dr. Isabel Banuchi, a dermatologist who administered          collagen injections as part of her practice. Dr. Banuchi expressed          concern after hearing that Gonzalez had received injections from an          unlicensed person. Dr. Banuchi told Gonzalez that she did not know          whether the material that had been injected was in fact collagen,          and that she had never seen the type of reaction to collagen that          Gonzalez was experiencing.                    Gonzalez also consulted with two other doctors between          1990 and 1992: Dr. Carranza, who told her that she should wait and          see what happened with the reaction, and Dr. Armando Silva, a          dermatologist who said he did not know what had been injected into          Gonzalez' face. According to Gonzalez, although she informed all          of these doctors that she developed the symptoms immediately after          being injected by what she was told was collagen, the physicians          said that her reaction seemed "strange" to them, because reactions                                        -19-          to collagen injections normally disappear. Dr. Carranza, however,          did tell Gonzalez that her rash was a result of whatever had been          injected into her face.                    Despite directions from the physicians with whom she          consulted not to have any more injections, Gonzalez received more          treatments from Montesinos two or three times after developing the          rash, in 1990 or 1991. Montesinos administered injections at the          site of the hard nodules because, she told Gonzalez, the reaction          might have been the result of "dead" collagen, and further          injections could help improve the condition of her facial skin.                    Gonzalez also sought diagnosis and treatment from          Dr. Walter Benavent. On December 26, 1990, Dr. Benavent wrote to          a scientist at Collagen Corporation asking for assistance in          diagnosing one of his patients (Gonzalez) who had developed          "hardened nodules along both naso-labial folds, corner of the          mouth, and chin following injections of Collagen" some time in          September or October of 1989. According to Dr. Benavent, Gonzalez          stated that the person who administered the injections told her it          was collagen, but that Gonzalez suspected that the collagen might          not have been properly refrigerated because of power outages in          Puerto Rico following Hurricane Hugo.                     Over a year later, in January 1992, Dr. Benavent received          a letter from Collagen Corporation stating that it was difficult to          determine whether his patients (by this time, Gonzalez and          Pedreira) had in fact been injected with collagen, because their          described symptoms were not typical of a reaction to collagen, and                                        -20-          suggesting that Dr. Benavent send the patients' blood samples to          Collagen Corporation to test for the presence of collagen. At the          direction of Dr. Benavent, Gonzalez sent a sample of her blood to          Collagen Corporation. On March 4, 1992, Collagen Corporation wrote          to Dr. Benavent (who passed the letter on to Gonzalez) that          Gonzalez' blood tested negative for the presence of bovine collagen          antibodies. The letter stated that the results were a "research          tool only and should not be considered diagnostic."                    After receiving the results from Collagen Corporation,          Dr. Benavent told Gonzalez that he did not think that the material          injected into her face was collagen. He did, however, tell her          that her symptoms might be permanent.                    In September 1992, Gonzalez traveled to San Antonio to          meet with Dr. Wilkinson, who told her that the marks on her face          were a reaction to bovine collagen. According to Gonzalez, this          was the first time that she became aware of the permanency and          cause of her injury.                    4.  Pedreira                    The small bumps that appeared on plaintiff Pedreira's          face after her third treatment with Montesinos in September 1989          became "quite noticeable" four to six weeks later, and have          persisted in that state ever since. Although Pedreira did not see          the material being injected, Montesinos told Pedreira that she was          using bovine collagen.                    Starting in January or February of 1990, and continuing          over the next two years, Pedreira consulted a number of physicians                                        -21-          for diagnosis and treatment. These physicians, whom Pedreira told          that she had received injections of what she thought was collagen          in the areas where the bumps appeared, tried various treatment          techniques to no avail. A dermatologist told Pedreira that she          should wait, because if it was collagen, the reaction would "wear          away," and a plastic surgeon stated that there was nothing he could          do to help her. After consulting some of the doctors, Pedreira          went to Montesinos, who told her to massage the affected area, and          to wait because the reaction would "wear away." Pedreira later          testified that in 1990, when she consulted the plastic surgeon, she          did suspect that collagen was the cause of her injury, but that,          based on the physicians' and Montesinos' assurances, she assumed          the marks would eventually go away.                    In January 1992, after talking with her friend Gonzalez,          Pedreira went to see Dr. Benavent. In his notes following          consultation with Pedreira, Dr. Benavent stated that Pedreira had          nodules around her nose and mouth that appeared after receiving          injections of what was purportedly collagen from a "beautician."          Like Gonzalez, Pedreira submitted a blood sample to Collagen          Corporation for testing, the results of which were negative for the          presence of collagen. Finally, Pedreira saw Dr. Wilkinson in          September 1989, at which time she asserts she first became aware of          the permanency and cause of her facial deformities.          B. Procedural Background                    Plaintiffs filed their separate complaints on August 31,          1993. Their cases were subsequently consolidated. On August 20,                                        -22-          1996, the district court granted summary judgment for defendant          Collagen Corporation, after concluding that plaintiffs' claims were          barred by Puerto Rico's one-year statute of limitations for tort          actions. Specifically, the district court concluded that, based on          the plaintiffs' own testimony, each plaintiff had reasonable notice          of her injury, "sufficient to file suit" well before they met with          Dr. Wilkinson in September 1992. Based on the district court's          determination that the record indisputably showed that plaintiffs          had sufficient notice of their cause of action, the court held          that:                      the one-year statute of limitation for                      plaintiffs' causes of action began to run,                      at the very latest, in the beginning of                      1992. At that time, plaintiffs had                      knowledge of their injuries, and of the                      entity ("collagen") that caused the tort.                      With due diligence, the identity of the                      manufacturer of the material injected                      could have easily been ascertained by the                      plaintiffs. Further, suit could have been                      commenced in this court, or at state                      court, against Montesinos and a fictitious                      named company defendant, to describe the                      collagen manufacturer, as allowed under                      Puerto Rico law. P.R. Laws Ann. tit. 32,                      App. III R15.4 (1983).          935 F. Supp. at 82.                    In an order dated December 31, 1996, the district court          granted summary judgment, based on the same findings of fact and          conclusions of law, for defendant Bertha Montesinos, and denied          plaintiffs' motion for reconsideration.                                        -23-            IV. Application of Standards of Review to the Present Record                    As an initial matter, both appellants and appellees argue          that a decision in their favor is required because the other party          is in some way bound to statements made in pleadings.                    Appellants argue that appellee Collagen Corporation          cannot succeed in contending that the plaintiffs knew, or at least          had notice, for purposes of applying the law of limitation of tort          actions in Puerto Rico, that the material injected during          treatments by Montesinos was collagen, while at the same time          denying, as a primary defense, that the material injected was          indeed a collagen product of Collagen Corporation. This argument          fails adequately to take into account a procedural provision, in          Federal Rule of Civil Procedure 8(e)(2), that allows parties to          take inconsistent positions in their pleadings. Especially at the          early stages of litigation, a party's pleading will not be treated          as an admission precluding another, inconsistent, pleading.   See          Gens v. Resolution Trust Corp., 112 F.3d 569, 573 & n.4 (1st Cir.          1997) (noting the relaxed standard of the Federal Rules that allows          alternative pleadings); Aetna                                         Cas.                                              Sur.                                                    Co. v. P&B                                                               Autobody, 43          F.3d 1546, 1555 (1st Cir. 1994) ("Because procedural law allows          alternative contentions, parties to a civil action involving such          an array of factual and legal theories as this case presents may be          allowed to defer choice at least until late stages of proceedings          in the trial court."); McCalden v. California                                                         Library                                                                 Ass'n, 955          F.2d 1214 (9th Cir. 1990) (holding that allegations should not be          construed as an admission against inconsistent claims),     cert.                                        -24-          denied, 504 U.S. 957, 112 S. Ct. 2306 (1992);                                                        Molsbergen v.                                                                      United          States, 757 F.2d 1016, 1018-19 (9th Cir.) (same),                                                            cert. dismissed                                                                          ,          473 U.S. 934, 106 S. Ct. 30 (1985).                    Likewise, statements contained in plaintiffs' complaints          will not be construed as admissions by plaintiffs that they knew,          before Montesinos administered injections, that Montesinos was          using one of Collagen's products. Collagen argues, unpersuasively,          that statements contained in the plaintiffs' complaints that in          1989 Montesinos injected plaintiffs with "Collagen, a product of          Collagen Corporation," amount to judicial admissions that          plaintiffs knew in 1989 what was being injected into their faces.          The pleading was simply asserting the alleged fact as to what          happened, not as to when plaintiffs learned about that fact.                      Turning to the central issues in this appeal, we          conclude that the factual record in this case is sufficiently          developed for this court to determine that the trial court          correctly concluded that the notice component (the objective          component) was established in favor of all defendants against all          plaintiffs as an initial or prima facie matter. We also conclude,          however, that we must nevertheless vacate the judgment for          defendants because a trialworthy dispute of fact exists, on this          record, with respect to the applicability of the recognized          exception to the notice rule as to each plaintiff's claim against          each defendant in this case.                    Defendants' argument that plaintiff Rodriguez had          "notice" by early 1992, if not earlier, has support in the record.                                        -25-          Plaintiff Rodriguez developed hard, red, raised bumps around the          area of injections shortly after Montesinos' treatment in the fall          of 1989. Over the next three years, these bumps did not dissipate          or change in any way. Rodriguez' discussions with Drs. Nevarez and          Borras between 1989 and 1992 show that she was already aware that          a raised ridge was a result of--or at least related to--the          injections she received from Montesinos. By March 1992 (if not          earlier), when Rodriguez discontinued injection treatments with          Montesinos, the intractable nature of Rodriguez' symptoms put her          on notice that she had been injured. By early 1992, enough facts          were available to Rodriguez to enable her to consult a lawyer and,          with the lawyer's help, investigate the manufacturing source of the          material injected by Montesinos into her face. Had she not          received the assurances of Montesinos and encountered the          uncertainty of the doctors, her failure to pursue a claim after two          years of unchanged symptoms would have barred her claim under the          objective rule of notice.                    Plaintiff Fernandez developed the reactive bumps, at the          sites of the injections, the evening after receiving her third          treatment from Montesinos. At some time in early 1990, she          consulted with Dr. Latoni. Fernandez told Dr. Latoni at that time          that she had received collagen injections from Montesinos at the          site of the reaction. Dr. Latoni treated Fernandez "nine or ten          times," using kenalog injections and dermabrasion techniques, but          to no avail.                                        -26-                    Defendants contend, with support in the record, that by          the time Fernandez finished treatment with Dr. Latoni (the date is          not apparent from the record, but it was well before her visit to          Dr. Wilkinson), sufficient facts were available to put her on          notice that she had sustained an injury as a result of the          injections administered by Montesinos. That Fernandez was aware of          a possible link between the injections and her facial deformities          is evidenced in her statements to Dr. Latoni, and her discussions          with Montesinos, whom she told about the reaction. When the          symptoms persisted unchanged, even after numerous treatments by          Dr. Latoni, Fernandez was put on notice that the marks on her face          were not a normal reaction to collagen injections that would "wear          away."                    Plaintiff Gonzalez had numerous indications, well before          her September 1992 visit to Dr. Wilkinson, that her reaction was a          result of the collagen injections that she received from Montesinos          on October 24, 1989. Montesinos told Gonzalez that she was using          collagen in the injections, and later told her that the reaction          might have been caused by "dead" collagen. Although some of the          doctors told Gonzalez that if it was collagen, the reaction would          go away, the bumps did not disappear for over two years. And at          least one of the doctors, Dr. Carranza, explicitly told Gonzalez          that the reaction was related to her facial injections.                    The reaction did not subside over time, despite further          treatments from Montesinos. The fact that Gonzalez continued to          see the unlicensed cosmetologist after being advised by her                                        -27-          physicians that she should not continue to have injections,          moreover, tends to undermine any claim by Gonzalez that she was not          on notice. Also, as she did with the other doctors that she saw,          Gonzalez told Dr. Benavent in 1990 that she had received what she          believed was collagen injected into her face, and that she had          developed the rash at the same location as the injections. In his          letter to the Collagen Corporation, Dr. Benavent related how          Gonzalez told him that she believed that Montesinos might have          injected collagen that was not properly refrigerated. Gonzalez was          informed of the letter from Collagen stating that her blood tested          negative for collagen antibodies. After receiving these results,          Dr. Benavent told Gonzalez that he did not know what had been          injected into her face.                     Defendants contend, with support in the record, that          Gonzalez was aware, when she consulted with the various doctors          between 1989 and 1991, that her facial deformities were related to          the injection she received in the fall of 1989. She even told          Dr. Benavent that she suspected that the injection that resulted in          her deformities might have contained improperly stored collagen.          The representations of Collagen and Benavent were not enough to          undermine an impression, supported by facts known to Gonzalez at          the time, that she had been injured as a result of the particular          injection administered by Montesinos. We conclude that, as a          matter of law, she was on notice.                    Like plaintiff Gonzalez, plaintiff Pedreira consulted          with Dr. Benavent; similarly, she received the results of the blood                                        -28-          tests and Dr. Benavent's opinion that the reaction was probably not          caused by collagen. For the reasons just discussed, defendants          contend, with support in the record, that Pedreira told the doctors          with whom she consulted that the bumps on her face appeared after          receiving collagen injections into her face, and that the bumps          were located at the sites of the injections. Pedreira admitted          that in late 1990 she suspected the collagen injection as the          culprit in her injury, but that she believed that the symptoms          would just go away. It is true that this belief was based in part          on the representations of Montesinos, with whom she talked in the          summer of 1990, and who told her to massage the bumps, which would          eventually go away. We conclude, nevertheless, that as a matter of          law Pedreira was on notice.                    In the present case, each of the plaintiffs had notice          well before September 1992 that her symptoms were related to the          collagen injections administered by Montesinos. Each of the          plaintiffs was told by Montesinos, either before the damaging          injections, or after the plaintiff developed the marks on her face,          that Montesinos had used injectable collagen. All of the          plaintiffs told their doctors that the marks appeared after          receiving the collagen injections, at the same sites as the          injections. Many of the doctors confirmed plaintiffs' suspicions          that the bumps or marks were a result of the collagen injections.          All of plaintiffs received more than one collagen reaction; most          received injections after the one that resulted in the rash. That          the red raised bumps were not a normal, more mild, reaction to                                        -29-          collagen should have been apparent to plaintiffs, given that they          did not experience a similar reaction to any of the other          injections.                     Even if the plaintiffs were on notice as to the          likelihood of a legal claim springing from their facial          deformities, an arguable question of fact remains as to whether the          representations of Montesinos and others contributed, in a material          way, to plaintiffs' delay in bringing suit. In other words, a          question of material fact remains as to whether the exception to          the notice rule applies in this case. Plaintiffs received repeated          reassurances from Montesinos that the reactions would go away. The          doctors consulted by the plaintiffs gave a wide range of diagnoses          and prognoses, including reassurances that the symptoms would          subside, statements of uncertainty as to the composition of the          injected material, and prescriptions for treatments that          purportedly would remedy the facial marks. The effect of these          representations, although not made by the alleged torfeasors, is a          factor to consider in determining whether plaintiffs reasonably          relied on Montesinos' assurances.                     After full consideration of the factual record before us          in this appeal, we conclude that we cannot say that a finder of          fact, reasoning on the basis of the evidence in the record before          us, could come to only one finding, a finding for the defendants on          the limitation issue on all claims against all defendants. The          evidence in the record in this case is not so one-sided that we can          say that defendants are entitled to a judgment as a matter of law                                        -30-          that the exception to the notice concept does not apply. It is a          defendant's burden, in moving for summary judgment, to establish          that all material facts are undisputed, and that no finder of fact          could reasonably find a genuine dispute of material fact and          resolve that dispute in the plaintiff's favor. In view of the          relatively particularized nature of evidence favorable to each          plaintiff in this case with respect to reassurances after          suspicions were aroused, in relation to her claim against each          defendant, we cannot say that a finder of fact must find this          evidence not creditworthy.                    First. The evidence does not compel a finding, as to any          plaintiff, that she has failed to show by a preponderance of the          evidence that she did not have true knowledge of injury, source of          injury, and awareness of all facts constituting the factual grounds          for legal responsibility of an identifiable actor or supplier of          collagen.                    Second. The evidence does not compel a finding, as to          any plaintiff, that she has failed to show by a preponderance of          the evidence that she reasonably relied upon repeated assurances by          Montesinos and others.                    For these reasons, even though we have ruled that but for          the second of the foregoing genuine disputes of fact defendants          would have been entitled to summary judgment under the notice rule          (the objective component of the legal test), the judgment for          defendants entered in the trial court must be vacated and the case          must be remanded. We direct, explicitly, that the only limitation-                                        -31-          of-actions issue remaining for proceedings on remand is the issue          regarding reasonableness of reliance on assurances of the          defendants, evaluated in the context of evidence of assurances by          unaffiliated third parties.                    It is so ordered. Costs are awarded to plaintiffs.                                        -32-
