Rosa-Rivera, et al v. Dorado Health, Inc., et al

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Rogeriee Thompson, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. [13-1328]

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Entry ID: 5911232

United States Court of Appeals
For the First Circuit
No. 13-1328
LIZA D. ROSA-RIVERA; EDGARD FRANQUI-RAMOS;
F.A.F.R., minor child represented by his parents,
Plaintiffs, Appellants,
v.
DORADO HEALTH, INC., d/b/a Alejandro Otero López Hospital, Inc.,
Defendant, Appellee,
JOSEPH CAPRE-FEBUS; CARLOS E. GONZÁLEZ-CAMACHO; JOHN DOE;
JANE DOE-CAPRE; COMPANIES A, B AND C; MARY DOE-GONZÁLEZ;
CONJUGAL PARTNERSHIP GONZÁLEZ-DOE;
CONJUGAL PARTNERSHIP CAPRE-DOE,
Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Camille L. Vélez-Rivé, U.S. Magistrate Judge]

Before
Torruella, Thompson, and Kayatta,
Circuit Judges.

Michelle A. Ramos-Jiménez, with whom Luis Rafael Rivera Law
Office was on brief, for appellants.
Kenneth Colón for appellee.

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THOMPSON,

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Circuit

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Judge.

Alleging

that

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negligent

conduct occurred during the birth of their son, F.A.F.R., his
parents filed a medical malpractice suit.

They prevailed against

the defendant physician but the jury found no liability on the codefendant hospital's part.

The plaintiffs sought a new trial, the

motion was denied, and they appealed.

Concluding this denial was

appropriate, we affirm.
I. BACKGROUND
Liza

Rosa-Rivera

and

Edgard

Franqui-Ramos,

on

their

own

behalf and on behalf of their minor son, F.A.F.R., ("Plaintiffs")
filed a diversity-based lawsuit against appellee, Dorado Health,
Inc., d/b/a Alejandro Otero López Hospital, Inc. ("Dorado Health"
or "the hospital"), along with Dr. Joseph Capre-Febus.1 Plaintiffs
alleged

that

Dr.

Capre-Febus

(the

physician

who

delivered

F.A.F.R.) and Dorado Health (the hospital where the delivery took
place) acted negligently in connection with the birth of their
son,

resulting

in

F.A.F.R.

suffering

dystocia, and ultimately Erb's Palsy.

from

trauma,

shoulder

The jury was partially

convinced. It concluded that while both Dr. Capre-Febus and Dorado
Health

were

negligent,

only

Dr.

Capre-Febus's

proximately caused F.A.F.R.'s impairments.

1

negligence

The judgment ordered

Another physician was named as well, but a settlement was reached
prior to trial.
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the doctor to compensate the Plaintiffs $807,500. Plaintiffs moved
for a new trial under Federal Rule of Civil Procedure 59(a),
advancing the same arguments they do here.2

The district court,

finding merit to none, denied the motion and this appeal followed.
II. ANALYSIS
Plaintiffs make three claims of error, the first being that
the trial judge erred in not allowing their attorney to ask a
Dorado Health nurse leading questions.

The second claimed misstep

was the judge's decision not to include one of their proposed jury
instructions.

And

finally,

Plaintiffs

rendered an inconsistent verdict.

insist

that

the

jury

We take the issues in that

order.
A. LEADING THE WITNESS
Sara Montalvo, who at the time of trial had been working at
Dorado Health since 1984, was the nurse that assisted in F.A.F.R.'s
delivery.

Plaintiffs called Montalvo to testify, and fairly early

on in the questioning counsel began posing leading questions.
Defense counsel objected but the attorney for Plaintiffs persisted
that

leading

questions

were

affiliated with Dorado Health.

2

appropriate

because

Montalvo

was

The judge sided with the defense,

Plaintiffs also sought to amend the judgment under Federal Rule
of Civil Procedure 59(e) because the judgment incorrectly
indicated that the jury found no negligence on Dorado Health's
part.
Recognizing the mistake, the court issued an amended
judgment accurately reflecting the verdict.
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noting that Montalvo was not a hostile witness.

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When Plaintiffs'

counsel pressed that under the rules hostility is not the only
indicator for leading a witness, and it is appropriate when "the
witness is identified with the other party," the judge stated, "I
don't agree . . . If she becomes hostile, you can lead all the
way." The judge then sustained the defense's objection to the few
additional

leading

questions

asked

during

the

remainder

of

Montalvo's examination.
Plaintiffs claim the court's ruling was off-base because a
witness's hostility is not the only justification for posing
leading questions.

And, according to the Plaintiffs, because they

could not pose leading questions, the examination of Montalvo was
"a disaster," resulting in a miscarriage of justice justifying a
new trial.3
Plaintiffs are correct on the first point.

Leading questions

are generally disfavored on direct examination but "[o]rdinarily,
the court should allow leading questions . . . when a party calls
a hostile witness, an adverse party, or a witness identified with
an adverse party."

3

Fed. R. Evid. 611(c)(2) (emphasis added).

In their brief, Plaintiffs also indicate that the judge, at one
point, did not allow them to impeach Montalvo with her deposition
testimony. It is unclear where the Plaintiffs are going with this
pithy, isolated reference. To the extent they are attempting to
assign error to the judge's conduct, the argument is waived for
failure to develop. See González-Morales v. Hernández-Arencibia,
221 F.3d 45, 48 n.3 (1st Cir. 2000).
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Consequently, it seems likely that the judge's ruling was based on
an error of law and therefore an abuse of discretion.

See Ira

Green, Inc. v. Military Sales & Serv. Co., 775 F.3d 12, 18 (1st
Cir. 2014).

But even assuming this to be the case, the judge's

potential misapplication of the rule is not enough.

Prejudice is

required for a party to prevail on a claim of improper exclusion
of leading questions.

Rodriguez v. Banco Cent. Corp., 990 F.2d 7,

13 (1st Cir. 1993); Fed. R. Evid. 103(a). For starters, this would
require a proffer on Plaintiffs' part, in other words, a showing
of some specific information that counsel might have elicited if
permitted the use of leading questions.
13; see also Fed. R. Evid. 103(a)(2).

Rodriguez, 990 F.2d at

That component is missing

here.
Neither at the sidebar with the judge, nor in the motion for
a new trial, did Plaintiffs offer any indication as to what they
might have been able to extract from Montalvo given some leeway
with the questioning. The same goes for their brief to this court,
as well as at oral argument, despite the panel pointing out the
proffer's omission.
Federal

Rule

submitted

to

of

It was not until post oral-argument, via a

Appellate

supplement

Procedure
their

list

28(j)
of

letter

(ostensibly

authorities),

that

Plaintiffs indicated what they would have proven had they been
allowed to examine Montalvo with leading questions, e.g., omitted
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nursing notes, lies about her findings, and deficient hospital
protocols.

Not only is it improper to advance new arguments in a

28(j) letter, Ruskai v. Pistole, 775 F.3d 61, 66-67 (1st Cir.
2014), but it is far too late in the game.

See, e.g., United

States v. Bayard, 642 F.3d 59, 63 (1st Cir. 2011) (providing that
the appellant's failure to brief the issue waives it).
Given their failure to establish prejudice, Plaintiffs' first
argument affords no relief.

We move on.

B. JURY INSTRUCTIONS
Prior to trial, Plaintiffs proposed jury instructions, the
operative one for our purposes being Instruction 16, which (for
now) it suffices to note concerned the obligation imposed on
hospitals to carefully select and monitor privileged physicians.
After the parties rested, counsel and the judge debated the merit
of Instruction 16, along with other jury instruction and verdict
form matters.

The judge, as later explained in the judgment

denying Plaintiffs' motion for a new trial, decided instead to
give other instructions which she felt in essence covered the same
content as Instruction 16 and, unlike that instruction, conformed
to the evidence presented at trial.
make a circumscribed argument.

To this court, Plaintiffs

They do not claim that any of the

jury instructions issued by the court were problematic, rather
they simply persist that Instruction 16 should have made the cut.
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Whether Plaintiffs properly preserved their objection to
Instruction 16's non-inclusion is up for debate.

The district

court, in the judgment denying the new trial motion, indicated
that the Plaintiffs had properly objected.

On appeal, Dorado

Health claims otherwise and Plaintiffs do not say one way or the
other.
Federal Rule of Civil Procedure 51 requires the court to give
parties the opportunity to object to its proposed jury instructions
before closing arguments and the instructions are delivered.
R. Civ. P. 51(b)(2).

Fed.

For an objection to be timely (except in

circumstances not relevant here), it must be made at this point.
Fed. R. Civ. P. 51(c)(2)(A).

Failure to do so means the objection

is forfeited and reviewed for plain error only, the idea being
that the trial judge should be afforded the opportunity to cure
the alleged error and litigants stopped "from ensuring a new trial
in the event of an adverse verdict by covertly relying on the
error."

Booker v. Mass. Dep't of Pub. Health, 612 F.3d 34, 41, 43

(1st Cir. 2010); see also Fed. R. Civ. P. 51(d)(2).
It is clear, at least, that Plaintiffs did not object at the
juncture required by Rule 51(c)(2)(A).

When the judge asked, just

prior to closing arguments, whether Plaintiffs' counsel had any
issues with the final jury instructions and verdict form, counsel
mentioned

a

since-resolved

issue
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with

the

verdict

form,

but

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indicated

no

concerns

or

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qualms

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with

the

jury

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instructions.

However, what is less clear is whether this failure to object
definitively places us in the plain error zone.
While a proper request (we have that) and a proper objection
(we are missing that) is required for a party to assign error to
the

court's

failure

to

give

an

instruction,

the

objection

requirement does not apply when "the court rejected the request in
a definitive ruling on the record."

Fed. R. Civ. P. 51(d)(1)(B);

see also Ji v. Bose Corp., 626 F.3d 116, 126 n.7 (1st Cir. 2010).
In those instances, the challenge is deemed preserved and subject
to de novo review.

Ji, 626 F.3d at 126 n.7.

Here, there was a lot of back and forth on the record
regarding the jury instructions.

It is not the easiest exchange

to follow but it appears that, at one point, the court intended to
include some iteration of Instruction 16 but then was convinced
otherwise by defense counsel, though even then it is not entirely
clear what instruction the court was nixing.

Compounding the

confusion is Plaintiffs' indication in their brief to this court
that

the

transcripts

Instruction 16.

did

not

fully

reflect

the

exchange

on

Given the difficulty we have discerning "a

definitive ruling on the record," Fed. R. Civ. P. 51(d)(1)(B), and
the fact that Plaintiffs do not rely on, or even reference, Rule
51(d)(1)(B)'s relaxed objection requirement, we deem Plaintiffs'
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objection to Instruction 16's non-inclusion unpreserved.

See Ji,

626 F.3d at 126 n.7 (treating plaintiff's jury instruction claim
as unpreserved when plaintiff failed to make a Rule 51(d)(1)(B)
argument).

Our review is therefore for plain error only.

Booker,

612 F.3d at 43; Fed. R. Civ. P. 51(d)(2).
With that decided we turn to the language of the relevant
jury instructions.

Plaintiffs' proposed Instruction 16 sought to

inform the jury that "[h]ospitals have a continuing obligation to
care for the health of their patients" by carefully selecting the
physicians they offer privileges to, requiring the physicians'
professional improvement courses and technological knowledge be up
to date, monitoring the physicians and intervening in the event of
an "obvious act of medical malpractice," and revoking a physician's
privileges "in the case of repeated or gross acts of malpractice."
Plaintiffs lifted this concept from a Puerto Rico case, Marquez
Vega v. Martinez Rosado, 16 P.R. Offic. Trans. 487 (1985), and
indeed the proposed instruction accurately stated what the case
held.
The trial court; however, focused on another aspect of that
case, directly quoting Marquez Vega in Instruction 20: "As a rule,
the hospital should not be held liable for the exclusive negligence
of an unsalaried physician, who was first and foremost entrusted
with

[the]

patient's

health."

The

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court

coupled

this

with

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Instruction 19 (titled "Vicarious Responsibility of Hospitals")
which, citing Núñez v. Citrón, 15 P.R. Offic. Trans. 786 (1984)
and P.R. Laws Ann. tit. 31, § 5142, provided that "[h]ospitals and
doctors have a duty to offer their patients the attention that
satisfies the demands that are generally recognized by the medical
profession in light of the modern means of communication and
education" and that a breach of such duty creates non-contractual
responsibility on the part of the hospital.
To this court, Plaintiffs trumpet Marquez Vega as firmly
establishing that hospitals owe patients in Puerto Rico the degree
of care that a reasonable and prudent person would exercise in the
same circumstances.

They persist that according to Marquez Vega,

a hospital's obligation to protect patient health extends beyond
the granting of physician privileges, with the various dictates of
Instruction 16 applying throughout a doctor's tenure.

Pointing to

Dr. Capre-Febus's testimony that he had been sued for malpractice
eight times,4 Plaintiffs make the leap that Dorado Health failed
to carefully select and then monitor the doctor, and therefore the
jury should have been instructed on the hospital's continuing
obligations.

Dorado

Health

counters

that

any

attempt

on

Plaintiffs' part to show that the hospital failed to properly

4

In their brief, Plaintiffs state that the doctor was sued at
least ten times but the testimony they cite indicates there were
eight law suits.
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supervise Dr. Capre-Febus was entirely unsupported by the evidence
at

trial

and,

therefore,

the

proffered

instruction

rightly

rejected.
As we said, proposed Instruction 16 accurately stated the law
but Instruction 19 and 20 did as well.

Even so, we are not fully

convinced that the two latter instructions, as the trial court
concluded, "cover in essence the content of plaintiffs' proposed
Instruction

No.

16."

Instruction

16

explains

very

specific

concepts relative to a hospital's duty to monitor physicians and
intervene in certain instances, e.g., in the face of repeated
malpractice, while Instruction 19 relates more generally to a
hospital's duty to conform to generally accepted, modern medical
standards and Instruction 20 deals with a wholly different concept,
that is, when a hospital is not liable for an unsalaried physician.
That being said, "the judge is not obligated to instruct on
every particular that conceivably might be of interest to the
jury," rather the real test is whether as a whole "the instructions
adequately illuminate the law applicable to the controlling issues
in the case without unduly complicating matters or misleading the
jury."

United States v. DeStefano, 59 F.3d 1, 3 (1st Cir. 1995);

see also United States v. Fermin, 771 F.3d 71, 80 (1st Cir. 2014).
Here, the proffered instructions did convey the thrust of Puerto

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Rico vicarious liability law, if not the more specific points
Plaintiffs sought to make.
The other problem for Plaintiffs is the dearth of evidence
supporting the theory of liability contained in Instruction 16, a
vacuity that did not go unnoticed by the trial judge or defense
counsel.

A party is entitled to have its legal theory presented

to the jury if it is supported by the evidence.

Sullivan v. Nat'l

Football League, 34 F.3d 1091, 1107 (1st Cir. 1994).

Here,

Plaintiffs, as explained in their brief, sought to use the previous
lawsuits to show that Dorado Health failed to carefully select and
then monitor Dr. Capre-Febus.

Yet Plaintiffs only point us to Dr.

Capre-Febus's testimony which indicated that he had been sued eight
times.5

On the selection component, the evidence Plaintiffs cite

actually indicates that Dr. Capre-Febus had never been sued at the
time he was initially granted privileges, a fact which the hospital
had inquired about.

As for the monitoring piece, they offer no

evidence relative to what Dorado Health knew about the suits, the
nature of the alleged malpractice (other than that one dismissed
suit involved shoulder dystocia), whether Dr. Capre-Febus was ever

5

Plaintiffs also claim the record reflects that Dorado Health did
not take any action against Dr. Capre-Febus nor investigate the
allegations in the various complaints; however, the record support
cited by Plaintiffs says no such thing. Dr. Capre-Febus offered
no testimony on either point.
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actually found to have committed malpractice, or what hospital
policies were for monitoring lawsuits.
A finding of plain error is a rarity in civil cases, Contour
Design, Inc. v. Chance Mold Steel Co., Ltd., 693 F.3d 102, 112
(1st Cir. 2012), and this case is more the norm than the exception.
Ultimately, a trial judge has wide latitude in deciding how to
best communicate complicated rules to the jury, DeCaro v. HASBRO,
Inc., 580 F.3d 55, 63 (1st Cir. 2009), and the judge here did not
overstep.

We find no plain error.
C. INCONSISTENT VERDICT

Plaintiffs' final argument is a brief, tag-along to the
previous issue.

They claim that the jury rendered an inconsistent

verdict because it supposedly assigned fault to Dorado Health after
finding its negligence was not a proximate cause of F.A.F.R.'s
injury.

The alleged inconsistency, say the Plaintiffs, was due to

the court's failure to include Instruction 16.
Plainly put, we fail to see any inconsistency in the verdict.
On the verdict form, the jury answered "yes" when asked whether
Dorado Health was negligent and "no" when queried whether that
negligence caused F.A.F.R.'s impairments.
there.

Nothing inconsistent

A successful medical malpractice claim under Puerto Rico

law, requires a party to establish "(1) the duty owed; (2) an act
or omission transgressing that duty; and (3) a sufficient causal
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nexus between the breach and the harm."

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Marcano Rivera v. Turabo

Med. Ctr. P'ship, 415 F.3d 162, 167 (1st Cir. 2005); see also P.R.
Laws Ann. tit. 31, § 5141.

The jury simply found the third

component lacking.
The jury then inserted a monetary amount for F.A.F.R.'s
physical

impairment,

pain

and

suffering,

and

reduction

of

potential income respectively, which the verdict form explicitly
instructed the jury to do if it found either Dr. Capre-Febus or
Dorado Health caused the minor plaintiff's injuries.

Again,

nothing irreconcilable there.
No more needs to be said.

Plaintiffs' claim of inconsistency

is meritless.
III. CONCLUSION
For the reasons made plain above, the court did not err.
Affirmed.

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