          United States Court of Appeals
                     For the First Circuit

No. 15-2171

         BERNARDINO SANTOS-RODRÍGUEZ, G.S.G.; F.A.S.G.;
                 GREGORY SANTOS; MILAGROS LÓPEZ,

                     Plaintiffs, Appellants,

                               v.

         SEASTAR SOLUTIONS, f/k/a/ TELEFLEX CANADA LTD.,

                      Defendant, Appellee,

       RAÚL VIERA-TORRES; MARCELO COLÓN-TORRES; COOPERATIVA
       DE SEGUROS MÚLTIPLES DE PUERTO RICO; UNKNOWN ENGINES
     MANUFACTURER CORP.; UNKNOWN CONTROLS MANUFACTURER CORP.;
         UNKNOWN DISTRIBUTOR CORP.; JOHN DOE; RICHARD ROE;
   INSURANCE COMPANIES X, Y AND Z; SEA FOX BOAT COMPANY, INC.;
        YAMAHA MOTOR MANUFACTURING CORPORATION OF AMERICA,

                           Defendants.


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

          [Hon. Marcos E. López, U.S. Magistrate Judge]


                             Before

                Torruella, Thompson, and Barron,
                         Circuit Judges.


     Carlos A. Del Valle-Cruz, with whom Humberto Guzmán-Rodríguez
and Guzmán & Rodríguez were on brief, for appellants.
     Salvador J. Antonetti-Stutts, with whom Aura Montes-
Rodríguez, Christian Echavarri-Junco, Nayuan Zouairabani and
O'Neill & Borges LLC were on brief, for appellee.
June 8, 2017




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             TORRUELLA, Circuit Judge.          Plaintiff Bernardino Santos-

Rodríguez ("Santos") was injured in a boating accident when a

corroded rod end that was part of the boat's steering mechanism

failed.      Santos and several relatives sued Defendant Seastar

Solutions ("Seastar"), the manufacturer of the boat's steering

mechanism, alleging a design defect and a failure to warn.              Santos

appeals from the district court's grant of summary judgment in

favor of Seastar.       We affirm.

                                 I.   BACKGROUND

A.   Factual Background

      1.     The Boating Accident

             On June 25, 2010, Santos was riding in a twin-engine

boat in a bay near Guayama, Puerto Rico.                    Raúl Viera-Torres

("Viera") owned the boat, which was equipped with a hydraulic

steering system manufactured in 2002 by Seastar (then known as

Teleflex Canada Ltd.).          The rod connecting the steering system to

the right motor had a ball-joint at the end, which broke while the

boat was in motion, resulting in a loss of steering and ejecting

Santos     from   the   boat.     Santos      sustained   extensive   injuries,

resulting in paraplegia.              None of the other plaintiffs, all

relatives of Santos, were in the boat.                Subsequent examination

revealed that the rod end failed because of corrosion.




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      2.   The Instruction Manual and the Boat's Maintenance

           The steering system's instruction manual (the "Manual")

informed owners that "[b]i-annual inspection [of the steering

system] by a qualified marine mechanic is required" and instructed

them to "[c]heck fittings and seal locations for leaks or damage

and service as necessary."    The Manual did not include a specific

warning about corrosion of the rod end.

           The boat's owner, Viera, acquired it second-hand.          He

did not perform maintenance on the boat, did not keep a maintenance

log or request maintenance documentation from the previous owner,

and did not read the Manual or any of the warnings affixed to the

steering system.   Viera hired third-party mechanics to maintain

the boat, but none of those mechanics ever brought the corroded

rod end to Viera's attention.

B.   Procedural History

           On June 14, 2012, Santos and four relatives filed the

operative complaint, claiming diversity jurisdiction and, in the

alternative,   maritime   jurisdiction.   On   March   13,   2015,   the

district court granted summary judgment to Seastar. It first ruled

that federal maritime law, rather than the substantive law of

Puerto Rico, applied to the plaintiffs' claims. The district court

then determined that the plaintiffs' expert did not identify a

specific design defect in his expert report.       In doing so, the

district court ruled that the expert's deposition testimony that

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Seastar had used a type of stainless steel that was prone to

corrosion in marine environments was inadmissible because it was

not raised in the expert's report.        The district court also ruled

that Santos could not show causation on his failure-to-warn claim

because there was no evidence that Viera or any person maintaining

the boat had ever looked at the Manual or the steering system's

warning labels.     Finally, the district court dismissed claims by

Santos's relatives, which were contingent on Santos's claims.         The

district court denied the plaintiffs' motion to alter or amend the

judgment on September 8, 2015.

           The plaintiffs timely appealed both orders.

                             II.    ANALYSIS

           "We    review   orders   for   summary   judgment   de   novo,

assessing the record in the light most favorable to the nonmovant

and resolving all reasonable inferences in that party's favor."

Bingham v. Supervalu, Inc., 806 F.3d 5, 9 (1st Cir. 2015). Summary

judgment is appropriate if "there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law."   Fed. R. Civ. P. 56(a).

           The plaintiffs claim that the district court erred by

applying federal maritime law, rather than the substantive law of

Puerto Rico.      We need not address this choice-of-law issue,

however, because even under the law of Puerto Rico, the plaintiffs



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have not created a triable issue of fact on their claims for either

a design defect or a failure to warn.

A.   Santos Cannot Prove That Any Failure to Warn Caused His
     Injuries

            Under Puerto Rico law,

         [a] plaintiff alleging failure to warn must prove[:]
         "(1) the manufacturer knew, or should have known of the
         risk inherent in the product; (2) there were no
         warnings or instructions, or those provided were
         inadequate; (3) the absence of warnings made the
         product inherently dangerous; [and] (4) the absence of
         adequate warnings or instructions was the proximate
         cause of plaintiff's injury."

Cruz-Vargas v. R.J. Reynolds Tobacco Co., 348 F.3d 271, 276 (1st

Cir. 2003) (quoting Aponte Rivera v. Sears Roebuck, 44 P.R. Offic.

Trans. 6, 144 D.P.R. 830 (1998)).            The district court ruled that

Santos had not shown causation because it was uncontested that

Viera did not read the Manual, and there was no evidence that

Santos himself, the mechanics who maintained the boat, or the

boat's    previous    owner   ever    read    the   Manual   or   that   anyone

communicated the warnings in the Manual to Viera.

            Here     on   appeal,    the     plaintiffs   briefly   summarize

evidence that the Manual did not include any warnings about

corrosion of the rod end and their expert's conclusion that the

rod end was corroded and that this "caused loss of control of the

steering of the boat," leading to the accident and Santos's

injuries. They then assert, without citation, that "[u]nder Puerto

Rico law, this is sufficient to raise a genuine issue of material

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fact."         This argument does not address the district court's

conclusion that "no evidence has been brought [to] the court's

attention from which the trier of fact could reasonably infer that

the omission of additional warnings caused Santos's damages."

Unless someone read the Manual, no warnings in it could have

prevented Santos's injuries.            Thus, even assuming that the Manual

did not contain "adequate warnings or instructions," that cannot

be "the proximate cause of [Santos's] injury."                Cruz-Vargas, 348

F.3d at 276; see Ramírez v. Plough, Inc., 863 P.2d 167, 177 (Cal.

1993)1    ("Plaintiff's       mother,    who   administered    the    [drug]   to

plaintiff, neither read nor obtained translation of the product

labeling.       Thus, there is no conceivable causal connection between

the representations or omissions that accompanied the product and

plaintiff's injury."); Massok v. Keller Indus., Inc., 147 F. App'x

651,     660    (9th   Cir.   2005)     (applying   California    law)   ("[The

plaintiff] admits that he did not read the warnings and so the

sufficiency       of   [the    manufacturer's]      warnings     is   therefore

irrelevant.       [The plaintiff's] claim based on failure to warn is

without merit.").



1 "[T]he Supreme Court of Puerto Rico has consistently relied upon
California Supreme Court precedent when considering issues raised
by the doctrine of strict product liability." Acosta-Mestre v.
Hilton Int'l of P.R., Inc., 156 F.3d 49, 55 (1st Cir. 1998) (citing
Collazo–Santiago v. Toyota Motor Corp., 149 F.3d 23, 25 (1st Cir.
1998)).


                                         -7-
B.   Santos Cannot Prove That Any Design Defect in the Steering
     Rod Caused His Injuries

          To prove a products liability claim under Puerto Rico

law, Santos must show that:    "(1) [Seastar's] equipment has a

defect, in any of its modalities; (2) the defect existed when the

product left [Seastar's] control; (3) [Seastar] is in the business

of selling this type of product; (4) the defect was the adequate

cause of [Santos's injuries]; and (5) [Viera] use[d] the product

in a manner that was reasonable and foreseeable by [Seastar]."

Rodríguez-Méndez v. Laser Eye Surgery Mgmt. of P.R., Inc., 195

D.P.R. 769, translation at 23-24 (June 15, 2016).2   In Rodríguez-

Méndez, the plaintiff developed an eye issue after he received

laser eye surgery, and he sued the manufacturer of the surgical

equipment for selling a defective product.      Id. at 3.    After

discovery, the manufacturer moved for summary judgment, arguing,

among other things, that the plaintiff had not identified a

specific defect in the surgical equipment.   Id. at 5.   The court

of first instance denied summary judgment, but the Puerto Rico

Supreme Court reversed and ordered dismissal.     Id. at 25.    It

determined that the plaintiff's reliance on the presence of metal

particles in his eye was insufficient "to establish that [the

surgical] equipment suffer[ed] from a manufacturing defect [or]


2  All citations are to the certified translation filed by Seastar
at Docket No. 69, Exhibit A.


                               -8-
was defectively designed."         Id. at 24.   Rather, the plaintiff's

evidence established only "that it is not normal to fin[d] metal

particles in one's eye," and that showing was "deficient and

insufficient" to survive summary judgment.        Id. at 23.

           Here, the plaintiffs' expert reported that the rod end

was corroded and that this corrosion "was the main cause for the

failure of the subject hydraulic steering cylinder rod end."             No

admissible evidence shows that the corrosion was because of some

defect in the product's design.        In fact, the plaintiffs' expert

report focuses almost exclusively on whether the Manual included

adequate warnings; it does not address whether the product was

properly designed.3

           The plaintiffs assert that the rod end "failed to perform

as safely as an ordinary consumer would expect" and that their

expert   "reported    that   the    product's   design   was   subject   to

corrosiveness."      Their expert report, however, stated only that

Seastar was "required to warn against all foreseeable hazards . . .

associated with the subject hydraulic steering cylinder rod end's



3 At his deposition, the plaintiffs' expert testified that Seastar
used a type of stainless steel that "is not a good selection for
[a] marine environment," rather than a less-corrosive type of
stainless steel. But the district court ruled that that testimony
was inadmissible because it constituted a new theory not addressed
in the plaintiffs' expert report. On appeal, the plaintiffs "rely
. . . simply on the expert report, and do without the deposition
testimony."


                                     -9-
interchangeability, corrosiveness, preventive maintenance, and the

risks associated with its failure."   It does not say that the rod

end's design made it particularly susceptible to corrosion.

          The plaintiffs' real argument is that the rod end failed,

and that this is sufficient evidence of a design defect.     This is

precisely the type of showing rejected in Rodríguez-Méndez, where

the plaintiffs' only evidence was that something was wrong -- he

had metal in his eye.   195 D.P.R. 769, translation at 23.    Here,

the plaintiffs' only showing is that something was wrong -- the

rod end failed.4   Thus, the plaintiffs did not present evidence

that Seastar's design of the rod end was defective.5


4   The plaintiffs cite to Pérez-Trujillo v. Volvo Car Corp.
(Sweden), 137 F.3d 50, 55 (1st Cir. 1998), for the proposition
that "the malfunction itself is circumstantial evidence of a
defective condition." This fails, first, because it is contrary
to Rodríguez. Second, Pérez-Trujillo was a manufacturing defects
case, in which the defendant argued that its product could not
have malfunctioned in the way described.      But an eyewitness
directly observed the product malfunction -- an airbag deploying
under normal driving conditions -- and the Court stated that
"direct observation of the malfunction itself is circumstantial
evidence of a defective condition." Id. (emphasis added).
5  The plaintiffs also assert that because Santos was an invitee,
he was not responsible for the boat's maintenance.       Thus, they
reason, if "the accident was attributable to the owner's negligence
in maintenance, and not to its design," it was Seastar's burden to
cross-claim against Viera. The plaintiffs cite no authority for
the proposition that Seastar could be liable for Viera's negligence
after he purchased the steering system, and Rodríguez-Méndez
forecloses this possibility. 195 D.P.R. 769, translation at 24
(holding that the manufacturer would not be liable if the doctor
"departed from the reasonable use of the surgical machinery or did
not give the require[d] maintenance").


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C.   The Plaintiffs' Derivative Claims Cannot Survive

             As Santos's four family members admit, their claims

under Article 1802 of the Puerto Rico Civil Code -- Puerto Rico's

general tort statute -- are derivative of Santos's claims, and so

if his "claim fails, so too do[] the relative[s'] derivative

claim[s]."    González Figueroa v. J.C. Penney P.R., Inc., 568 F.3d

313, 320 (1st Cir. 2009).            Because the district court properly

granted   summary    judgment    on    Santos's    underlying   claims,   his

relatives' derivative claims cannot succeed.

                              III.    CONCLUSION

             For   the   foregoing    reasons,    we   affirm   the   district

court's judgment.        The parties shall bear their own costs.

             Affirmed.




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