USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 92-2373
AWILDA VILLARINI-GARCIA,
Plaintiff, Appellant,
v.
HOSPITAL DEL MAESTRO, INC., ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
___________________
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
____________________
Daniel R. Bright with whom
_________________

Robert Braunschweig
___________________

and Braunschw
_________

Rachlis Fishman & Raymond, P.C. were on brief for appellant.

_______________________________
Jose L. Gandara with whom Ramon E. Bauza Higuera and Raul Dav
________________
_______________________
________
Rivera were on brief for appellees Dr. & Mrs. Mario Tomasini.
______
Thomas Doran Gelabert with whom Eli B. Arroyo was on brief
______________________
______________
appellee Hospital Del Maestro, Inc.
____________________
November 1, 1993
____________________

BOUDIN,

Circuit Judge.
______________

This

case

is

malpractice action arising under Puerto Rico law.

judgment, the district

court ruled that the

medical

On summary

claims, brought

four years after the event, were barred by the local one-year
statute of

limitations.

In

our view, the

district court's

ruling is correct as to three of the claims; on the remaining

claim, we
court

think that

it was

to determine whether

for the jury

rather than

the knowledge and

the

due diligence

requisites for bringing the claim at this time have been met.

The
Awilda

facts

are

largely undisputed.

Villarini Garcia

("Villarini")

Tomasini about a birthmark or

back.

Villarini had been

In

consulted Dr.

but

Villarini

without

Mario

mole that Villarini had on her

referred to Tomasini

del Maestro at which Tomasini was a surgeon.

Villarini,

August 1986,

doing a

biopsy,

by Hospital

After examining
Tomasini

advised

that the mole should be surgically removed because

it might turn malignant in the future.

Villarini was concerned that surgery involving her
might affect her
Tomasini
ability

career as a concert pianist,

whether
to

the

proposed operation

practice and

perform

at the

back

and she asked

would
piano.

impair her
Tomasini

assured her that the proposed excision was minor surgery that
would pose

no

risk

surgery was performed

to

Villarini's musical

in Puerto Rico

career.

The

on September 8,

1986.

During the surgery, Tomasini removed a piece of muscle tissue

-2-2-

as well as
or during

the mole.

No biopsy

the operation.

was performed either before

The pathology report

showed that

nothing removed was cancerous.

After the

operation Villarini experienced

severe pain.

A few weeks after the surgery Villarini received the hospital

pathology

report and learned for

tissue had
then

been cut out, despite the absence of cancer.

called

continuing
tissue.

Tomasini,
and

advised him

inquired

necessary, that

only a

that she would

even more.

of

that the removal

career.

She

pain was
the muscle

was normal

had been

suffer no lasting harm and

about her

serious

removal

small amount

operative pain was to be

or

that

about the

Tomasini replied

concern

the first time that muscle

and

removed, and

had no reason for

Tomasini also

said that

expected and might last for a

postyear

He said that no further treatment was needed,

apart from light exercise.

Villarini's back
severity

and

pain continued, although

frequency,

through

the

declining in

remainder

of

throughout 1987, and during the first half of 1988.

summer 1988,
June 1988

the back

pain had

Villarini experienced

largely disappeared
a new

1986,

By early
but in

discomfort involving

her arm and apparently a different sort of back pain as well.

In July 1988, she visited a chiropractor, Dr.
whom

Villarini

had

consulted

in

previous

scoliosis, or spine curvature, condition.

-3-3-

Efrain Palmer,
years

for

She visited Palmer

several more times

one

of

these

Villarini

between September 1988 and May

visits, probably

mentioned

her

the

September

mole-removal

1989.

In

1988 visit,

surgery

and

Palmer

speculated that

the operation might

have adversely affected

her

When Villarini asked

whether she should sue

scoliosis.

Tomasini, Palmer
this

course.

(in his

In

own words)

"tried to

discourage"

Villarini's recollection, Palmer

"that there seemed to be

told her

no basis or relationship between my

current complaint and the surgery."

During

the summer of 1988, Villarini felt that her back

was well enough

September

1988 in Puerto

preparing,
she was
1988

and

doctors
Palmer.1

to permit her to schedule

Rico and New

piano concerts in

York.

As

she began

Villarini experienced severe pain in her arm, and

forced to cancel
May 1989
or other

the concerts.

Villarini
specialists,

Between

consulted a
apart

from

September

number
her

These doctors, some of whom were aware

of other
visits

to

of the mole

____________________
1In September and October of 1988, Villarini consulted
Dr. Carlos Berrocol, her family physician who diagnosed her
problem as a swollen muscle; Dr. Stanley Weinapel, a member
of the Department of Rehabilitation Medicine at St. Luke'sRoosevelt Hospital in New York, who told her that she had

"overuse syndrome"; Dr. Edwin Rosario Rios, a physiatrist who

concluded that the pain stemmed from calcifications in the
shoulder; and Dr. Jose Abreu Deliz, an orthopedic surgeon who
seconded the "overuse syndrome" diagnosis. In February and
April of 1989, Villarini saw Dr. James Parkes, a New York
physician who viewed the pain as arising from calcifications
and tendinitis; Dr. Glatter, a physiatrist who concluded that
she had scoliosis and mild tendinitis; and finally a number
of therapists and physicians at Lincoln Medical and Mental
Health Center in the Bronx, who told her the problem stemmed
-4-4-

removal,
These

gave various

included

diagnoses

"swollen

shoulder, "overuse

for

muscle,"

syndrome,"

her continuing
calcification

tendinitis in

the

pain.
in

the

arm,

and

scoliosis.
On

June 29,

1989,

Villarini saw

osteopath.

He opined that

due

surgery on

to the

counsel
Villarini
Hospital

and,

under a

del Maestro

in

malpractice:

her back and arm

her back.

brought suit on

district court
million

just

damages,

year

after

Rico.
made

then retained

the

insurers

Ostrow visit,

against Tomasini,
in the

The complaint,

essentially

Ostrow, an

pain were both

Villarini

June 28, 1990,

and various

in Puerto

Dr. Gary

four

federal

seeking $1
claims

of

1.

failure to secure appropriate consent for

removal of the muscle tissue;

2.

negligence in failing to warn Villarini adequately

about the risks and consequences of the operation;

3.

negligence in choosing unnecessarily to remove

muscle tissue;

4.

negligence in failing to provide adequate

operative care or treatment.

Following discovery, including

and Palmer, motions

the
post-

depositions of Villarini

for summary judgment

hospital and by Tomasini.

the

were filed by

the

These motions relied upon the one-

____________________
from overuse and administered physical therapy and ultrasound
treatments.
-5-5-

year

statute of limitations in Puerto Rico's Civil Code art.

1868, 31 L.P.R.A

5298, which pertinently provides:

The following prescribe in one year . . . [a]ctions

to demand civil liability . . . for obligations
arising from . . . fault or negligence . . . from
the time the
aggrieved person had
knowledge
thereof.

The motions
detailed

were opposed

affidavit setting forth

recited.

On

October 13,

summary judgment for the

the

facts

Villarini
her

and

Given

September 1988, the

not entitled

who included

many of the

facts already

1992, the district

court granted

defendants.

authorities,

had failed to

claims.

suit.

by Villarini

Judge

After a
Cerezo

discussion of
concluded

exercise due diligence

Villarini's

state of

to wait almost

in pursuing

knowledge

district court ruled that

two more years

that

as of

Villarini was
before bringing

Accordingly, the court dismissed the complaint.

Article 1868, although it prescribes

of limitations,

has been construed

Puerto

incorporate

Rico to

a one-year statute

by the Supreme

the so-called

Court of

discovery

rule.

See, e.g., Santiago Hodge v. Parke Davis & Co., 909 F.2d 628,
___ ____ ______________
_________________
632-33

(1st Cir. 1990),

discussing Colon Prieto

____________

115 D.P.R. 232, 247, 15 Off. Trans. 313 (1984).

period does not
or with due
to
the

begin to run until

The classic case

sponge, negligently left

sufficient

for the discovery rule is

inside the patient

-6-6-

The one-year

the plaintiff possesses,

diligence would possess, information

permit suit.

v. Geigel,
______

during the

operation, whose

ill effects

are not

apparent for

several

years.
It is easy to state
more difficult
that

the gist of the discovery rule

to fine-tune it.

Puerto Rico

the knowledge required to start

knowledge not

only of harm

injury," Geigel,
______

"the origin

245, 15 Off. Trans.

which we take to include knowledge

link between the

decisions say

the statute running is

but also of

115 D.P.R. at

but

of the
at 329,

of the wrong and a causal

wrong and some harm.

But actual knowledge

is not required where, by due diligence, such knowledge would

likely have

been acquired.

Trans. at 327-29.

115 D.P.R.

at 244-45,

15 Off.

Actual knowledge is a matter of fact,

but

the concept of due diligence has buried within it a normative

question of

how

much

diligence

should be
______

expected

of

reasonable lay person.

On

review

of

a grant

issues of fact are resolved

and inferences are

benefit of

summary

judgment, disputed

in favor of the non-moving party

drawn in that party's favor.

General Electric Co.,

_____________________
cert. denied, 112
____ ______

of

950 F.2d

816,

822 (1st

S. Ct. 2965 (1992).

this approach,

we think that

Mesnick v.
_______
Cir. 1991),

Giving Villarini the

claims 1, 2

and 4

were properly dismissed but that a jury is entitled to decide

whether

claim 3 was timely brought

applied in Puerto Rico.

under the discovery rule

We consider each

of the claims

in

order.

-7-7-

1.

The

Villarini's

first claim is that Tomasini

body without

surgeon gets consent

getting her

removed a part of

permission.

to remove a mole on

If

the

the patient's back

but takes out the patient's appendix as well, there is little

doubt

that the

surgeon

would face

calls it negligence or battery.

say that

the consent

he got

a lawsuit,

whether one

Here, no doubt Tomasini will

should be taken

fragment of muscle tissue, but

to include

we are concerned now not with

the merits but with the statute of limitations.

From

the

standpoint

of

the

statute of

limitations,

Villarini knew three weeks after the operation that a portion

of her muscle had been removed without her specific
she

also

knew

that

she

was

unexpected pain stemming from the

suffering
operation.

consent;

substantial

and

It seems to us

that Villarini
resort to

knew at this

a lawyer

point enough to require

on the lack

of consent

claim.

her to
If the

lawyer judged that the consent was deficient, then she had to
bring

suit within

one year

after

receiving the

pathology

report and having it confirmed by Tomasini.

The core of the claim, after all, is the lack of consent
for the doctor's removal of the muscle tissue, so the alleged
malpractice was

known to

Villarini as

that the muscle had been removed.

soon as

she learned

So, too, was the fact that

she was suffering pain from the operation beyond anything she
had

expected.

Villarini therefore

had

knowledge

of the

-8-8-

critical

facts for this

and under Puerto Rico

claim shortly after

law she could not

the operation,

wait four years

to

assert it.
2.
logic.

The failure to

warn claim is

Villarini knew three weeks

not only was

embraced by the same

after the operation that

she suffering unexpected pain but, according to

Tomasini himself, that the pain might well

a year.
to

At this point,

conclude that

should

continue for over

one might expect a reasonable person

a warning

have been given

of

such possible

consequences

before the operation,

especially to

one whose career could depend on physical well-being.

As we

explain below, Villarini was entitled

to rely on

Tomasini so far as he predicted that the operation was normal

and the pain would come to an end.
reason for her to defer
gone awry.

But the

of the pain

might affect the

damages.
within

malpractice claim in question depends on

bungled surgery; and the duration and
following a perhaps

inadequate warning

amount of damages but not

Once again, we
three

thus might be good

any suspicion that the operation had

a lack of warning, not

effects

There

weeks all

the existence of

think that Villarini

of

the facts

that

clearly knew
justified this

claim.
Of course, Villarini was not a lawyer and could not know
whether technically the lack of warning (or, for that matter,
the

lack of

consent

to

the

-9-9-

muscle

removal)

constituted

malpractice.

The discovery rule, however, focuses on whether

the plaintiff knew the facts that gave rise to the claim, not
their full legal implications.
F.2d 724, 731 (8th
create

Cir. 1990).

reasonable basis

there is

nothing unfair

plaintiff promptly

Osborn v. United States,

______
_____________
And where

for

assert her

those known facts

concern about

in a policy

malpractice,

that insists

rights.

that the

Aldahonda-Rivera v.
________________

Parke Davis & Co., 882 F.2d 590, 593 (1st Cir. 1989).
__________________
all,

the statute

defendants
designed

of

limitations

against stale claims,

to accommodate a

918

also

serves

After

to

protect

and the discovery

rule is

plaintiff's interests but

not to

make them trump all others.

3.
muscle

Villarini's third claim--negligence in removing the

fragment

footing.

without

At the outset

a biopsy--stands
we must make

on

different

clear that the record

reveals nothing about the intrinsic merit of this malpractice

claim.

We

do

not know

whether

unthinkable to remove muscle

bodily

it

is common,

tissue of this amount,

rare,

or

in this

location, without determining the presence of cancer.

Nevertheless,
exist, we
both sides

assuming for present purposes that a claim may

think that

a reasonable argument

as to whether

the statute of

can be

made on

limitations debars

this claim.
In favor of the district

court's view, it is clear that

Villarini

knew

three

weeks after

the

operation

that the

-10-10-

muscle tissue had been removed

without a biopsy and that she

was suffering substantial pain; these

facts underlying this claim.
Tomasini, the very
removal of

that the

pain was normal

of common

Geigel, 315
______

Yet she was promptly assured by

surgeon who had performed

that the

matter

are two of the crucial

the muscle tissue

and would

sense,

and

D.P.R. at 245,

had been

proper and

eventually end.

Puerto

15 Off.

the operation,

Rico

As

precedent,

Trans. at 329,

a
see
___

she was

entitled initially to rely on this prognosis from her doctor.

The prognosis was
in her

back did lessen

year and a half.

at least partly
faulted

initially borne out because

the pain

and largely disappear over

the next

The new pain, which replaced

in the

arm.

And

the old, was

while Villarini might

be

for not specifically asking the doctors after Palmer

whether the operation had caused

the new pain, at least some

of these specialists were aware

of the operation but none of

the varying diagnoses

as a

she received pointed to

possible cause, until Ostrow

did so on

the operation
June 29, 1989.

Arguably Ostrow's appraisal

at that time was the

knowledge

an asserted direct

Villarini had of

the operation and

the persistence of

first firm
link between

pain elsewhere in

the

body three years after the operation.

In sum we think that a reasonable factfinder,

while not

necessarily compelled to do so, could find that Villarini did

exercise

due diligence

as to

the third

claim but

did not

-11-11-

obtain

the

Tomasini's

necessary

knowledge

reassurances, while

until

irrelevant

June
to (or

29,

1989.

actually

strengthening) the lack of warning claim, could have lulled a

reasonable person into believing for
operation had not been botched.
the information
within

needed to

a few weeks

a year or more that the

And while Villarini had all

bring the

lack of warning

after the operation,

conclude that the final

claim

a factfinder could

ingredients for the third claim

did

not fall into place until after the pain persisted and Ostrow
gave his opinion.
Of course, a

jury might not find all of the facts as we

have described them.

In particular, more than

to the suit, Palmer did

and

the continuing

a year prior

suggest a link between the operation

pain.

apparently

believed,

suggestion

was less firm

Perhaps,

Palmer's

as the

withdrawal

than Villarini

district court
of this

initial

now claims.2

But

under the case law previously cited, Villarini is entitled to

the benefit of
judgment.

her version

To the

of events

extent that factual

in resisting

summary

issues remain,

that

itself would be a basis for denying summary judgment.

____________________
2According to Villarini, Palmer backtracked and said
that there seemed to be "no basis or relationship" between
the operation and the later pain.
Palmer's own recollection
was that he told Villarini that causation would be "very
difficult to prove" since the new condition was not on the
spine and there was a previous history of scoliosis.
If
there is any disagreement between these versions, it was for
the jury to resolve.
-12-12-

Even if

we assume that

known, iron-clad and

all of the pertinent

complete, the third claim

properly be dismissed on summary

case rests

on diversity jurisdiction,

standard is a matter of federal

broadly speaking, in
the

respective roles

court.

of trial

F.2d 521,

527 (1st

(1976).3

"Erie does not

____

the state's rules

still cannot

Whether or not a

the summary

judgment

law, for it is settled that,

a federal court federal

See generally Molinar

___ _________ _______

and jury."

judgment.

facts are

judge,

law determines

jury, and

reviewing

v. Western Electric Co., 525

_____________________

Cir. 1975), cert.

____

denied, 424
______

U.S. 978

require a federal court

on the allocation of

McEwen, 919 F.2d at

______

60.

to employ

issues between judge

See generally
_____________

Blue Ridge Rural Electric Cooperative, 356 U.S.

______________________________________

Byrd v.
____

525 (1958);

Hanna v. Plumer, 380 U.S. 460 (1965).

_____
______
Under
plaintiff

federal
has

jury question."
1991).

case

law,

"[t]he

exercised reasonable

question

whether

diligence is

Bohus v. Beloff, 950 F.2d 919,

_____
______

Cir. 1992).

Our circuit took

in Santiago Hodge, 909 F.2d at 633.

_______________

usually a

925 (3d Cir.

Accord, Nevada Power Co. v. Monsanto Co.,

______ _________________
____________

1304, 1307 (9th

955 F.2d

the same view

This is not surprising

____________________
3E.g.,
____

Bank of California v. Opie,

___________________
____

663 F.2d

977, 979

(9th Cir. 1981) (federal summary judgment standard controls

in diversity case); Lewis Refrigeration Co. v. Sawyer Fruit,
_______________________
_____________
Vegetable and Cold Storage Co., 709 F.2d 427, 430 n.3 (6th
_______________________________
Cir. 1983) (majority of circuits follow federal law on
directed verdict standard); McEwen v. Delta Air Lines, Inc.,
______
_____________________
919 F.2d 58, 59 (7th Cir. 1990) (federal law controls burden
and order of raising issues but not burden of proof in the
"risk of nonpersuasion" sense).
-13-13-

since

factual disputes are

the statute
facts

are

often important in

of limitations defense.
in

dispute,

the

passing upon

But even where

issues

of

due

no raw

diligence and

adequate knowledge are still ones for the jury so long as the
outcome is

within the range

where reasonable men

and women

can differ.
Strictly speaking, due

diligence and adequate knowledge

in this case may not turn on disputed issues of fact; rather,

the outcome may
standards

depend only

to known facts.

on the

application of

But juries

general

make these normative

judgments all the time in negligence cases, and jurors are no

less

well equipped

would

and should

to decide what
do when

faced

a reasonable
with a

lay person

certain amount

of

information

about a medical

malpractice.

Indeed, one

jury's ability
whether

to

problem and the

may have

decide such

a complex machine

in products liability

the case

law

more confidence in
question than

is properly designed,

question

favoring

possibility of

jury

litigation.
decision

In
on

to

the

decide

the staple
all events,

such

"mixed"

questions has worn a deep groove.

Accordingly, we
could

find that the

diligence,

conclude that

reasonable jury

plaintiff lacked knowledge

the statue of

rule jurisdiction should

summary judgment.

where a

This is

limitations issue in
not be withdrawn

despite due
a discovery-

from the jury

so even though the raw facts

by
are

-14-14-

largely undisputed and even though the trial judge--acting as

an independent
the plaintiff

decisionmaker--might reasonably
was not diligent.4

the third claim in

What it will

This is a

our case, at least at

look like after the plaintiff

believe that
description of

the present stage.

rests is another

matter.

4.

The fourth

failure to provide
operation.

claim concerns Tomasini's

proper treatment for Villarini

There

is

no

indication

in

the

alleged
after the

complaint,

Villarini's opposition to summary judgment, or briefs in this

court

of the facts comprising this claim: what treatment was

omitted, how

the omission

affected Villarini,

or when

she

learned of the pertinent facts to support this claim.

We conclude that

the grant of summary

sustained as to this claim.

only for

a limited period

indication

judgment must be

Villarini was in Tomasini's care

after the operation; there

is no

that Tomasini's role continued into 1988 or 1989.

Accordingly, his supposed omissions or improprieties in postoperative treatment

suit

was

brought.

occurred well
It

was

over a

Villarini's

year before

this

responsibility in

opposing summary judgment to assert

facts that (if proved at

trial) would

that the

allow a

jury to find

discovery rule

____________________
4See Greenburg
v. Puerto
Rico Maritime
Shipping
___ _________
__________________________________
Authority, 835 F.2d 932, 936 (1st Cir. 1987) (on summary
_________
judgment, there is no room "for the measured weighing of
conflicting evidence . . . [or] for the judge to superimpose
his own ideas of probability and likelihood (no matter how
reasonable those ideas may be)").
-15-15-

requirements

were met,

specifically,

lack of

knowledge

despite an exercise of due diligence.5

No

such facts

Villarini
Indeed,

were asserted in

to show lack
even

in

of knowledge despite

this

court

separately

address

underlying

misconduct or give

discovery
after

the

the

rule applies
underlying

consider claims on

the district

Villarini's

treatment

to this
events.

claim,

any reason to
claim,
Since

appeal that are not

court by

due diligence.
brief

does

describe

the

think that the

brought four
we

not

do not

years

normally

substantially argued

in the briefs, this claim may be lost twice over.

The judgment of the district court is affirmed as to the
________
consent, failure to warn and post-operative treatment claims.
As

for the claim

biopsy, the

based on removal

judgment is

vacated and
_______

of the

muscle without a

the case remanded

________

further proceedings consistent with this opinion.

for

No costs.

____________________
5

See Fragoso v. Lopez, 991 F.2d 878, 887 (1st Cir.

___ _______
_____
1993) (burden of proof to show lack of knowledge is on the
plaintiff who sues more than one year after the event);
Hodge, 833 F.2d at 7 (same), citing Illuminada Rivera
_____
__________________
Encarnacion v. Estado Libre Asociado de Puerto Rico, 113
___________
_______________________________________
D.P.R. 383, 385, 13 Off. Trans. 498, 501 (1982).
-16-16-