          United States Court of Appeals
                      For the First Circuit


No. 14-1538

                       MARÍA GÓMEZ, ET AL.,

                     Plaintiffs, Appellants,

                                v.

              DR. JORGE E. RODRÍGUEZ-WILSON, ET AL.,

                      Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

       [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


                              Before

                 Torruella, Lipez, and Thompson,
                         Circuit Judges.



     Rafael E. García-Rodón, with whom Carlos A. Del Valle-Cruz
and Juan H. Saavedra-Castro, were on brief, for appellants.
     Richard Schell-Asad IV, with whom Rebeca Vélez-Gómez, were on
brief, for appellee Dr. Jorge E. Rodríguez-Wilson.



                          April 8, 2016
             TORRUELLA, Circuit Judge.         Plaintiffs-Appellants María

Gómez and María Migdalia Ojeda-Morales appeal the district court's

order vacating the jury award, as well as the district court's

order declining attorneys' fees in their favor.                Because we find

that the district court improperly vacated the jury award and

because we find that Defendant-Appellee Dr. Jorge E. Rodríguez-

Wilson     ("Dr.   Rodríguez")     engaged    in   obstinate   conduct     during

trial, we must vacate the district court's ruling and remand this

case to the district court.

                                  I. Background

             Mr. Enrique Ojeda-Morales ("Mr. Ojeda") injured his knee

while driving and was referred to Dr. Rodríguez at Doctors' Center

Hospital     in    San    Juan,   Puerto   Rico.     On   November   19,    2008,

Dr. Rodríguez performed surgery on Mr. Ojeda's right knee.                 After

the surgery, Mr. Ojeda's condition did not improve and his leg

began to turn purple.             Mr. Ojeda remained in Doctors' Center

Hospital in San Juan, Puerto Rico, under the care of Dr. Roberto

Ruiz-López ("Dr. Ruiz").          Subsequently, Mr. Ojeda was transferred

to Doctors' Center Hospital in Manatí, Puerto Rico, where portions

of   his   right    leg    were   amputated   on   two    separate   occasions.

However, Mr. Ojeda's condition continued to deteriorate and he

passed away while at Doctors' Center Hospital in Manatí.




                                       -2-
            After Mr. Ojeda's death, his widow, María Gómez, and his

sister, María Migdalia Ojeda-Morales, (collectively "Appellants")

filed    suit   against    Doctors'       Center      Hospital          San    Juan,   Inc.;

Doctors'   Center    Hospital,      Inc.;       Dr.       Rodríguez;      and    Dr.    Ruiz

alleging that Mr. Ojeda perished as a result of their negligent

care.1

            The   parties       entered    into       a    confidential         settlement

agreement.      As a result, the district court dismissed the suit

without the imposition of costs or attorneys' fees.

            However,      Dr.    Rodríguez       failed       to     comply      with     the

settlement agreement when he did not deposit his share with the

district    court.        According   to        the   terms        of    the    settlement

agreement, Dr. Rodríguez's failure to comply rendered the entire

agreement null and void.          Doctors' Center Hospital San Juan, Inc.

and   Doctors'    Center     Hospital,       Inc.,         entered       into    a     second

settlement agreement with Appellants.                     Similarly, Dr. Ruiz also

entered into a second settlement agreement with Appellants.                             Both

settlement agreements released Doctors' Center Hospital San Juan,

Inc.; Doctors' Center Hospital, Inc.; and Dr. Ruiz (collectively

the "settling parties") of any and all liability.                             Importantly,



1  Appellants named other entities related to Doctors' Center
Hospital in their suit, but ultimately settled with Doctors' Center
Hospital San Juan, Inc. and Doctors' Center Hospital, Inc.


                                          -3-
the settlement agreements clarified that the releases did not apply

to any non-settling co-defendants and that the agreements did not

constitute an admission of liability.                 Further, the settlement

agreements made clear that should the settling defendants be found

responsible     for    a   percentage    of   fault,      Appellants      agreed    to

indemnify and exonerate them.           Lastly, the settlement agreements

clearly severed any joint and several liability amongst the parties

and stated that there may not be any "leveling" amongst the

parties.       Appellants received a total of $700,000 from their

settlement with the settling parties.

              The district court dismissed the settling parties from

the    case   and   Dr.    Rodríguez    remained     as    the   sole    defendant.

Dr. Rodríguez proceeded to trial and a jury determined that his

negligent care was the proximate cause of Mr. Ojeda's death and

awarded Appellants a total of $475,000.              Accordingly, the district

court issued a judgment in favor of Appellants.

              Dr. Rodríguez sought to alter the judgment on the ground

that    the   jury's      damages   award   should    be    offset      against    the

settlement amounts. In other words, Dr. Rodríguez sought to offset

the judgment of $475,000 against the $700,000 that Appellants

received from the settling parties.             The district court granted

Dr. Rodríguez's request and vacated the jury award.




                                        -4-
            The district court also refused the Appellants' request

for attorneys' fees due to Dr. Rodríguez's obstinate conduct, as

permitted by Puerto Rico law.2           Notably, the district court did

not    provide   any   reasoning    to     support   its   conclusion   that

Dr. Rodríguez was not obstinate. This timely appeal followed.

                              II. Analysis

A.    Offset of Jury Award

            Appellants posit that the district court erred when it

offset the jury verdict against Dr. Rodríguez by the amount that

Appellants obtained from the settling parties.                We review a

district court's interpretation of state law de novo.            Gargano v.

Liberty Int'l Underwriters, Inc., 572 F.3d 45, 49 (1st Cir. 2009);

Villarini–García v. Hosp. del Maestro, 112 F.3d 5, 7 (1st Cir.

1997).

            In Villarini–García, we found that the Supreme Court of

Puerto Rico had not spoken as to whether a jury award secured

against one defendant should be offset by a settlement payment

made by another party, allegedly vicariously liable for the same

injury.    112 F.3d at 7-8.        In the absence of controlling state


2 Appellants contended that Dr. Rodríguez was obstinate when he:
(1) failed to honor the original settlement agreement; (2) deprived
the Appellants of their original trial date; (3) forced Appellants
to engage in an unnecessary trial; (4) behaved smugly towards the
court during trial; and (5) refused to accept the possibility that
he acted negligently.


                                     -5-
law, we interpreted Puerto Rico law as favoring dollar-for-dollar

setoff in the vicarious liability context.      Id.; see also Río Mar

Assocs., LP, SE v. UHS of P.R., Inc., 522 F.3d 159, 166 (1st Cir.

2008).

           Offsetting a damages award by the settlement amount is

rooted in "the principle that no one should or may unjustly enrich

himself by receiving double compensation for the same accident."

Villarini–García, 112 F.3d at 8 (citing Robles v. Superior Court,

85 P.R.R. 640, 647 (P.R. 1962)).       We have repeatedly stated that

it makes sense to require an offset in those cases where both the

settling   and   non-settling   tortfeasors    are   liable   for   the

plaintiff's injury.    Portugués–Santana v. Rekomdiv Int'l, Inc.,

725 F.3d 17, 27 (1st Cir. 2013); Río Mar Assocs., LP, SE, 522 F.3d

at 165. However, we held in Río Mar that Puerto Rico law requires

a proportionate offset in the joint tortfeasor or successive

tortfeasor context. 522 F.3d at 167 (citing Szendrey v. Hospicare,

158 D.P.R. 648, 2003 WL 751582 (P.R.2003)).

           After our decision in Villarini–García, the Supreme

Court of Puerto Rico has made clear that when a plaintiff settles

and releases a joint tortfeasor from liability, the remaining joint

tortfeasors are not released from liability unless the settlement




                                 -6-
agreement clearly states so.         Sagardía de Jesús v. Hosp. Auxilio

Mutuo, 177 D.P.R. 484 (P.R. 2009) (citations omitted).3

            Offset may be proper if the plaintiff liberated the

settling tortfeasor from all liability and the settling tortfeasor

accepted responsibility or if the court makes a determination as

to the settling tortfeasor's share of responsibility.4                 However,

if   the   settling   tortfeasor      is    not   adjudged     any    share     of

responsibility then there may not be an offset. Id.

            In   Sagardía     de   Jesús,   the   plaintiffs    sued    several

doctors, as well as the hospital that employed them, alleging

negligent care, which resulted in the death of their child.                   Some

of the doctors named in the suit settled with the plaintiffs. Id.

The settlement agreement made clear that the settling doctors did

not accept any responsibility for the alleged damages.                         Id.

Because    the   plaintiffs    subrogated    themselves   in    the    settling


3 Because the official English translation of this case does not
contain internal page numbers, we cannot include pin-point
citation references.
4  When the settling tortfeasor accepts responsibility or is
adjudged a percentage of responsibility, the plaintiff subrogates
himself in the settling tortfeasor's position.        Because the
settling tortfeasor is liberated from all responsibility, the non-
settling tortfeasors may not seek contribution against the
settling tortfeasor. As a result, a proportionate setoff in which
the portion of responsibility attributed to the settling
tortfeasor is deducted from an award against the non-settling
torfeasor is proper in order to prevent unjust enrichment. Id.
n.17 (citing Szendrey v. Hospicare, 158 D.P.R. 648 (P.R. 2003)).


                                      -7-
doctors' position, offset would have been proper if the settling

doctors were later adjudged a percentage of responsibility.                Id.

The trial court allowed the non-settling tortfeasors to present

evidence    regarding    the    settling   tortfeasors'      percentage        of

responsibility.    Id.   The non-settling defendants appear to have

failed to present such evidence.            Id.     Nonetheless, the non-

settling tortfeasors submitted a post-judgment motion asking the

trial court to determine the settling tortfeasors' percentage of

responsibility, which the trial court denied.              Id.    The Supreme

Court of Puerto Rico concluded that because the trial court made

no   affirmative   finding     regarding   the    apportionment    of   fault,

offset was improper.5

            After a careful reading of Supreme Court's opinion, we

understand that the Puerto Rico Supreme Court's determination

hinged on the conclusion that, in failing to present evidence

regarding the settling tortfeasors' degree of responsibility, the

non-settling tortfeasors waived their argument as to the need to

apportion   responsibility.        Thus,   in     the   absence   of    such   a

determination, there could be no proportional offset.



5 We note former Chief Justice Hernández Denton's vigorous dissent
in which he argued that the case should be remanded to the trial
court so that a finding as to the responsibility of the non-
settling tortfeasors could be made. Id. (Hernández Denton, C.J.,
concurring in part and dissenting in part).


                                    -8-
          Here, Dr. Rodríguez was found liable for all of the

plaintiffs' harm valued at $475,000. The settling parties did not

accept responsibility for the alleged tort and the jury never

apportioned responsibility for plaintiffs' damages.   Had the jury

determined that Dr. Rodríguez was responsible for less than 100

percent of plaintiffs' damages, and that the remainder was fairly

attributable to a settling co-defendant, Dr. Rodríguez would have

only had to pay the percentage of the $475,000 for which he was

fairly responsible.6   Id.; see also Río Mar, 522 F.3d at 166.

          However, Dr. Rodríguez failed to ask the district court

to instruct the jury to apportion responsibility.    Nor did he ask

for a proportional offset of his damages award below.     Thus, in

similar fashion to the non-settling defendants in Sagardía de

Jesús, Dr. Rodríguez waived his argument that he is entitled to a

proportional offset.     Moreover, Dr. Rodríguez also failed to

address the issue of proportional offset before this court, even

after Appellants argued it in their opening brief.    As a result,

any argument that he is entitled to offset has been waived.




6 However, the jury's determination that a settling co-defendant
was responsible for a portion of the damages would not be binding
on the co-defendant because the plaintiffs already discharged
their claims against them and indemnified them against any future
contribution. See Sagardía de Jesús, 177 D.P.R. 484.


                                -9-
            Because Sagardía de Jesús establishes that proportional

offsets apply in cases such as this one, we conclude that the

district court misapplied Puerto Rico law when it implemented a

dollar-for-dollar offset.    Furthermore, Dr. Rodríguez waived his

right to seek a proportional reduction in the damages award and no

such reduction may be made in this case.

            We therefore conclude that it is necessary to vacate the

district court's decision and remand so that Appellants may receive

the amount that the jury determined in their favor.

B.    Obstinacy

            Appellants also dispute the district court's decision to

refuse a grant of attorneys' fees in light of Dr. Rodríguez's

obstinate conduct.   "In a diversity case in which the substantive

law of Puerto Rico supplies the basis of decision, the federal

court must give effect to Rules 44.1(d) and 44.3(b) of the Puerto

Rico Rules of Civil Procedure."    Dopp v. Pritzker, 38 F.3d 1239,

1252 (1st Cir. 1994).    Because these rules speak in imperatives,

the imposition of attorneys' fees and prejudgment interest is

obligatory once a threshold finding brings the rules into play.

Id.

            "[A] losing party who has been obstinate during the

course of a lawsuit can be held liable for prejudgment interest

(if a money judgment has eventuated) and for its adversary's


                                -10-
attorneys' fees." De León López v. Corporación Insular de Seguros,

931 F.2d 116, 126 (1st Cir. 1991) (internal quotations omitted);

see also P.R. Laws Ann. tit. 32, App. III, Rule 44.1(d); P.R. Laws

Ann. tit. 32, App. III, Rule 44.3(b).

               The purpose of these rules is to penalize "a losing party

that    because     of   his    stubbornness,      obstinacy,       rashness,       and

insistent      frivolous   attitude       has   forced   the       other    party    to

needlessly assume the pains, costs, efforts, and inconveniences of

a litigation."       Fernández v. San Juan Cement Co., Inc., 18 P.R.

Offic. Trans. 823, 830 (P.R. 1987) (citation omitted).

               In order to determine if a party has been obstinate, we

must determine whether a litigant has been "unreasonably adamant

or stubbornly litigious, beyond the acceptable demands of the

litigation, thereby wasting time and causing the court and the

other litigants unnecessary expense and delay."                     De León López,

931 F.2d at 126 (citing La Playa Santa Marina, Inc. v. Chris–Craft

Corp., 597 F.2d 1, 7 (1st Cir. 1979)).

               We review the district court's obstinacy findings for

abuse of discretion.           Id.    A court "abuses its discretion when a

relevant factor of significant weight is overlooked," an "improper

factor    is    accorded   significant      weight,"     or    a    district      court

"considers the appropriate mix of factors, but commits palpable

error    in    calibrating"     its    decision.     Dopp,     38    F.3d    at    1253


                                         -11-
(citations omitted).   "Though abuse of discretion is a relatively

relaxed standard of review, it is a standard nonetheless, and the

court of appeals will interject itself if the trial court does not

meet its measure." Id.

          Examples of obstinate conduct include a defendant's: (1)

denial of total liability only to later accept responsibility; (2)

raising undue defenses; (3) denial of all liability when only the

amount of damages sought is contested; and (4) denial of a fact

that he knows to be true.         Correa v. Cruisers, a Div. of KCS

Intern., Inc., 298 F.3d 13, 31 (1st Cir. 2002) (citing Fernández,

18 P.R. Offic. Trans. 823, 830-31 (P.R. 1987)).                   In Fajardo

Shopping Center, S.E. v. Sun Alliance Ins. Co. of Puerto Rico,

Inc., 167 F.3d 1, 15 (1st Cir. 1999), we held that the district

court's finding of obstinacy was adequately supported by the

defendant's failure to timely submit names of candidates for

appointment   as   special      master,    a     barrage    of   unwarranted

allegations   regarding   the    special       master's    appointment,    the

defendant's   unsubstantiated     allegations      regarding     the   special

master's findings, the defendant's uncalled for allegations that

the special master was unqualified, and the defendant's refusal to

participate in the discovery process conducted by the special

master.   Moreover, "Puerto Rico courts have previously imposed

obstinacy-based    attorneys'    fees     on   insurance    companies     that


                                   -12-
unreasonably refuse to settle out of court claims."           Id. at 15-16

(citing Morales v. Automatic Vending Service, Inc., 3 P.R. Offic.

Trans. 390 (P.R. 1975)).

            Notably, obstinacy is to be judged in light of the

overall circumstances of the particular case.            See Dopp, 38 F.3d

at 1253.

            Appellants contend that the district court should have

found Dr. Rodríguez to be obstinate.          Appellants emphasize that

the parties, including Dr. Rodríguez, voluntarily entered into the

initial    settlement   agreement,    which   resulted   in   the   district

court's dismissal of the suit.        However, Dr. Rodríguez reneged on

the settlement agreement by not depositing the amount to which he

had agreed.

            The record reveals that Dr. Rodríguez did renege on the

settlement agreement and that Dr. Rodríguez requested an extension

of time of twenty days to deposit his share of the settlement.

Despite his request, Dr. Rodríguez failed to deposit his share

during the twenty-day window he requested. 7             Nonetheless, the

district court provided Dr. Rodríguez with additional time to



7 The district court did not grant Dr. Rodríguez's motion for an
extension of time.    However, the district court noted that his
motion for an extension of time had become moot since Dr. Rodríguez
did not deposit the settlement amount within the time frame he
requested in his motion.


                                     -13-
deposit his share of the settlement amount in light of the district

court's congested trial calendar.           Despite the extension of time,

Dr. Rodríguez again failed to deposit the settlement amount.              In

light of Dr. Rodríguez's repeated failures to comply with the

settlement agreement, Appellants requested an expedited trial

date, which the district court granted.

            Subsequently, the district court set a final settlement

conference in an effort to revisit the settlement.              The district

court ordered Dr. Rodríguez to personally appear at the settlement

conference. Minutes before the settlement conference was to begin,

Dr. Rodríguez e-mailed his attorney and stated that he would not

attend because he had to tend to a patient in the emergency room.

Importantly, Dr. Rodríguez was supposed to be present in the

courtroom at the time that he e-mailed his attorney. The district

court found Dr. Rodríguez's excuse to be unacceptable and noted

that it would proceed to trial.

            The district court concluded that Dr. Rodríguez was not

obstinate during the course of litigation.           However, the district

court did not express any rationale for its decision.             We fail to

see how the district court concluded that Dr. Rodríguez was not

obstinate   in   light   of   the   particulars    of   this   case.   Here,

Dr. Rodríguez: (1) reneged on his agreement to settle and nullified

the initial settlement agreement as to all parties; (2) failed to


                                     -14-
comply   with   the   settlement   agreement    during   the   twenty-day

extension of time he requested; (3) failed to comply with the

settlement    agreement   during   the    district   court's   additional

extension of time; and (4) failed to appear before the district

court for a final settlement conference.8      Dr. Rodríguez's behavior

stubbornly prolonged the life of this dispute, causing Appellants

the inconvenience and expense of continuing to trial after reaching

a settlement.    Further, Dr. Rodríguez also victimized the settling

parties in this case by forcing them to continue the litigation

and enter into a second settlement.

             In sum, Dr. Rodríguez engaged in wholly unacceptable

dilatory tactics that nullified the first settlement agreement and

forced the district court to set aside the judgment dismissing the

case.    Dr. Rodríguez's behavior constituted a flagrant disregard

for other litigants and the court, which forced Appellants to incur

additional litigation costs and proceed to trial after the case

had been dismissed.       Thus, we conclude that Dr. Rodríguez was

patently obstinate and find that the district court abused its

discretion.


8 Appellants also allege that Dr. Rodríguez's failure to call any
witnesses or settling defendants, as well as his exclusive reliance
on the medical record constituted obstinate conduct.        Because
Dr. Rodríguez's pre-trial conduct was so egregious that it
independently supports a finding of obstinacy, we do not reach his
conduct during trial.


                                   -15-
                         III. Conclusion

          Accordingly,   we   vacate   and   remand   for   further

proceedings consistent with this opinion.    Costs are awarded to

Appellants.

          Vacated and Remanded.




                               -16-
