Ramirez-Lluveras v. Pagan-Cruz

Filing 387

OPINION AND ORDER re 354 Motion in Limine; and 369 Motion in Compliance. The Court GRANTS plaintiffs' motion in limine to exclude any mention, evidence, or argument pertaining to the acquittal of defendants Sustache and Diaz in their criminal trial, and deems MOOT plaintiffs' request to exclude expert testimony from Santiago-Rullan. The Court also NOTES the plaintiffs' special damages brief and allows plaintiffs to proceed with their allegations of special damages in their personal capacity wrongful death action pursuant to article 1802 of the Civil Code. Signed by Judge Francisco A. Besosa on 04/27/2012. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
EVELYN RAMIREZ-LLUVERAS, et al.,
Plaintiffs,
v.

CIVIL NO. 08-1486 (FAB)

JAVIER PAGAN-CRUZ, et al.,
Defendants.

OPINION AND ORDER1
BESOSA, District Judge.
Before the Court is the plaintiffs’ motion in limine (Docket
No. 354) and briefing regarding their request for special damages
(Docket No. 369).

For the reasons set forth below, plaintiffs’

motion in limine is GRANTED IN PART and their special damages brief
is NOTED.
DISCUSSION
I.

Background
On April 28, 2008, plaintiffs Evelyn Ramirez-Lluveras, Jenitza

Caceres, and minors MC and MAC (collectively, the “plaintiffs”)
filed a complaint seeking personal damages and damages caused to
their decedent, Miguel Caceres-Cruz. (Docket No. 2.) On March 30,
2009, the plaintiffs filed an amended complaint against several
field officers in the Puerto Rico Police Department, Javier Pagan-

1

Elizabeth Gray, a second-year student at the University of
New Hampshire School of Law, assisted in the preparation of this
Opinion and Order.

Civil No. 08-1486 (FAB)

2

Cruz, Carlos Sustache-Sustache (“Sustache”), Zulma Diaz (“Diaz”)
(collectively, the “field officers”), and various defendants whom
the plaintiff alleges supervised the filed officers.
No. 64.)
death,

(Docket

The amended complaint alleges an action for wrongful

assault

and

constitutional rights.

battery,
Id.

and

violations

of

plaintiffs’

On January 20, 2012, the plaintiffs

filed a motion in limine requesting that the Court exclude (1)
evidence relating to the acquittal of defendants Sustache and Diaz
in the Commonwealth criminal court, and (2) testimony from an
expert witness to be called by Diaz.
have not opposed the motion.

(Docket No. 354.)

Defendants

On January 23, 2012, the parties

filed a joint proposed pre-trial order.

(Docket No. 359.)

On

January 31, 2012, at the pretrial conference, the Court requested
that the plaintiffs brief it as to whether their requested special
damages could in fact be requested. (See Docket No. 364, at pp. 4,
5.)

On March 7, 2012, the plaintiffs submitted a motion in

response to the Court’s request. (Docket No. 369.) The defendants
have not submitted a response to the plaintiffs’ motion regarding
special damages.
369 below.

The Court will address both Docket Nos. 354 and

Civil No. 08-1486 (FAB)
II.

3

Legal Analysis
A.

Plaintiffs’ Motion In Limine
i.

Evidence of the Defendants’ Prior Acquittal is not
Relevant and Therefore not Admissible
The plaintiffs first request that the Court exclude

any mention, evidence, or argument that pertains to the acquittal
of defendants Sustache and Diaz in their criminal trial.
No. 354.)
pursuant

(Docket

Plaintiffs argue that (1) the evidence is not relevant
to

Rule

401

of

the

Federal

Rules

of

Evidence,2

(2) admission of the evidence of acquittal is not supported by
claim preclusion or res judicata,3 and (3) if the Court finds the

2

Rule 401 provides in pertinent part
Evidence is relevant if:
(a) it has any tendency to make a fact more or
less probable than it would be without the
evidence; and
(b) the fact is of consequence in determining
the action. Fed.R.Evid. 401.

3

The plaintiffs are misguided in their use of claim
preclusion and res judicata to support their argument.
Having
determined that evidence of acquittal is not admissible under the
Federal Rules of Evidence, the Court finds it unnecessary to
address the issue.

Civil No. 08-1486 (FAB)

4

acquittal evidence relevant, it should still be barred pursuant
Rule 403 of the Federal Rules of Evidence.4
The

plaintiffs

contend

Id. at pp. 1-4.

that

evidence

of

the

defendants’ prior acquittal is not relevant because there is a
“complete lack of mutuality” between the criminal charges and this
case.

Id. at p. 2.

Relevant evidence “has any tendency to make a

fact more or less probable than it would be without the evidence
.

.

.

[and]

Fed.R.Evid.

is

401.

of

consequence

The

First

in

determining

Circuit

Court

of

the

action.”

Appeals

has

acknowledged that evidence of an “acquittal in a prior court
proceeding involving similar subject matter is usually not admitted
into evidence.”

United States v. Bisanti, 414 F.3d 168, 172 (1st

Cir. 2005); see also United States v. Jones, 808 F.2d 561, 566 (7th
Cir. 1986) (“Evidence of a prior acquittal is only relevant in
determining whether the prosecution is barred by double jeopardy or
collateral estoppel.”) (internal citation omitted).

Evidence of

defendants Sustache’s and Diaz’s prior acquittals are not relevant
to this case at trial.

See Fed.R.Evid. 401; United States v.

Marrero-Ortiz, 160 F.3d 768, 775 (1st Cir. 1998) (“evidence [of a

4

Rule 403 provides in pertinent part that
The court may exclude relevant evidence if its
probative value is substantially outweighed by
a danger of one or more of the following:
unfair
prejudice,
confusing
the
issue,
misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative
evidence. Fed.R.Evid. 403.

Civil No. 08-1486 (FAB)

5

prior acquittal] ordinarily does not prove innocence”); see also
United

States

v.

Kerley,

643

F.2d

299,

300

(5th

Cir.

1981)

(“evidence of a prior acquittal . . . merely indicates that the
prior prosecution failed to meet its burden of proving beyond a
reasonable doubt at least one element of the crime.”).
Furthermore, even if deemed relevant, evidence may
be excluded “if its probative value is substantially outweighed by
a danger of . . . unfair prejudice, confusing the issue, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative

evidence.”

Fed.R.Evid.

403.

Evidence

of

prior

acquittals “has a tendency to confuse the jury rather than assist
it.”

Bisanti, 414 F.3d at 173.

Given the similar subject matter

of this case and the prior criminal cases, the admission of
evidence of the prior acquittals could result in jury confusion.
see Marrero-Ortiz, 160 F.3d at 775 (explaining that jury confusion
may arise because “cases are dismissed for a variety of reasons,
many of which are unrelated to culpability”).

As a result, the

Court GRANTS plaintiffs motion in limine request to exclude any
mention, evidence, or argument pertaining to the acquittal of
defendants Sustache and Diaz in their criminal trial.
ii.

Plaintiffs’ Request To Exclude Expert Testimony
From Santiago Rullan is Moot
The plaintiffs next request that the Court exclude

testimony by Santiago Rullan (“Rullan”) and the report prepared by
him.

(Docket No. 354, pp. 4-8.)

Subsequent to the filing of the

Civil No. 08-1486 (FAB)
motion

in

conference.

limine,

6

the

(Docket

Court

No.

held

364.)

its

During

scheduled
the

pre-trial

course

of

the

conference, counsel for defendant Diaz informed the Court that
Rullan would no longer be called to testify.

Id. at pp. 2-3.

a result, the plaintiffs’ argument is deemed MOOT.

As

The Court will

now address the plaintiffs’ brief on special damages.
B.

Special Damages Brief
i.

Plaintiffs May Not Recover Special Damages Pursuant
to Section 1983
The

plaintiffs

request

damages

suffering and loss pursuant to section 1983.

for

their

own

(See Docket No. 64.)

“First Circuit case law holds that surviving family members cannot
recover in an action brought under section 1983 for deprivation of
rights secured by the federal constitution for their own damages
from the victim’s death unless the unconstitutional action was
aimed at the familial relationship.” Robles-Vazquez v. Garcia, 110
F.3d 204, 206 n. 4 (1st Cir. 1997) (emphasis in original); see Dela
Mata v. PR Highway & Transp. Auth., No. 10-1759, 2012 U.S. Dist.
LEXIS 46583, at *11-12 (D.P.R. March 30, 2012) (dismissing spouse’s
claim of damages for actions against her husband).

Surviving

family members, however, may bring an action on behalf of the
decedent pursuant to section 1983.

Rossi-Cortes v. Toledo-Rivera,

540 F.Supp.2d 318, 327 (D.P.R. 2008).

Survivorship of a section

1983 action is established by state law.

Id.

While Puerto Rico

does not have a survivorship statute, “the Supreme Court of Puerto

Civil No. 08-1486 (FAB)

7

Rico has held that survivorship is generally encompassed within
article 1802 of the Puerto Rico Civil Code.”

Id.; see also Burgos-

Yantin v. Municipality of Juana Diaz, 709 F.Supp.2d 118, 122
(D.P.R. 2010) (“survivorship is encompassed within the remedial
character of Puerto Rico tort law . . . .”).

Since surviving

family members may recover “damages for the conscious pain and
suffering

of

[the]

decedent,

as

opposed

to

damages

for

his

immediate death . . .” pursuant to article 1802, they also have
standing to sue pursuant to section 1983.
F.Supp.2d

at

327-28.

Furthermore,

a

Rossi-Cortes, 540

plaintiff

may

bring

a

section 1983 action only “when there is a showing that the decedent
suffered prior to his death.”
complaint,

plaintiffs

excruciating

pain,

allege

fear,

Id. at 328.
that

decedent

desperation

and

physical sufferings” prior to his death.

In their amended
Caceres

other

“suffered

emotional

and

(Docket No. 64, p. 14.)

Therefore, the plaintiffs may seek recovery for the general, or
moral, damages sustained by decedent Caceres, but may not seek
recovery for special damages sustained by themselves pursuant to
section 1983.
ii.

Plaintiffs May Recover Special Damages Pursuant to
Article 1802
The plaintiffs also request damages for their own

suffering and loss pursuant to article 1802 of the Puerto Rico

Civil No. 08-1486 (FAB)

8

Civil Code, P.R. Laws Ann. Tit. 31, § 51415 (“article 1802”).
Docket No. 64.)
pursuant to

(See

Surviving family members have a right to recovery

article

1802.

Robles-Vazquez,

110

F.3d

at

208.

Surviving family members have two possible causes of action. CruzGascot v. HIMA-San Pablo Hosp. Bayamon, 728 F.Supp.2d 14, 19
(D.P.R. 2010).

“[O]ne is the personal action of the original

victim of the accident for the damages that the same suffered; and
the other, the action which corresponds . . . to the deceased’s
close relatives for the damages the death of their predecessor
caused them.”

Id.

Similar to the constraints of section 1983,

surviving family members may have a claim for the “tortiously
inflicted pain and suffering sustained by the decedent prior to
death.”
2009).

Montalvo v. Gonzalez-Amparo, 587 F.3d 43, 47 (1st Cir.
Additionally, the Puerto Rico Supreme Court has held that

“the next of kin of the victim are entitled to compensation for the
material and moral damages which they personally suffered . . . .”
Robles-Vazquez, 110 F.3d at 208 (citing Hernandez v. Fournier, 80
P.R. 93, 96-104 (1957)).

The Supreme Court of Puerto Rico has

given

plaintiffs

great

article 1802.

5

latitude

to

in

recovery

pursuant

to

See Santiago v. Grp. Brasil, Inc., 830 F.2d 413,

Article 1802 provides in pertinent part that,
A person who by an act
damage to another through
shall be obliged to repair
P.R. Laws Ann. Tit. 31, §

or omission causes
fault or negligence
the damage so done.
5141.

Civil No. 08-1486 (FAB)

9

415-16 (1st Cir. 1987) (Article 1802 “establishes one of the
fundamental principles of our jurisprudence – that of the Aquilian
liability for personal acts – all damage, whether material or
moral, gives rise to reparation . . . .”) (emphasis in original);
see also Montalvo, 587 F.3d at 47 (allowing plaintiff’s claim for
the wrongful death of her mother that alleged mental and moral
damages as well as funeral expenses). Consequently, the plaintiffs
are permitted to plead special damages and general damages for
their own personal harm under article 1802.

The Court will now

determine whether the plaintiffs have satisfactorily pled those
damages.
iii. Plaintiffs Have Sufficiently Pled Their Special
Damages
The Federal Rules of Civil Procedure provide that
“[i]f an item of special damage is claimed, it must be specifically
stated.”

Fed.R.Civ.P. 9(g).

Little guidance exists as to what

level of specificity is required.

The First Circuit Court of

Appeals has held that the “purpose [of the pleading requirement] is
to give notice.” Suarez-Matos v. Ashford Presbyterian Comm. Hosp.,
Inc., 4 F.3d 47, 51-52 (1st Cir. 1993).

The Suarez-Matos court

also found that “the more natural . . . the damages, the less
pleading [was] needed.”

Id. at 52.

Other circuits are equally

lacking in direction as to what must be pleaded for special
damages.

The Seventh Circuit Court of Appeals has found that

“[a]lthough an estimation of final total dollar amounts lost is

Civil No. 08-1486 (FAB)

10

unnecessary, the pleadings must demonstrate some actual pecuniary
loss.”

Action Repair, Inc. v. Am. Broad. Co., Inc., 776 F.2d 143,

50 (7th Cir. 1985) (internal citations omitted). The Fifth Circuit
Court of Appeals regards the specificity requirement as a manner
“to inform defending parties as to the nature of the damages
claimed in order to avoid surprise.”

Great Am. Indem. Co. v.

Brown, 307 F.2d 306, 308 (5th Cir. 1962).
The plaintiffs’ amended complaint does not provide
“a specific accounting of [the] damages or an explanation of how
the purported [tortious act] caused them.”

Lott v. Levitt, 556

F.3d 564, 570 (7th Cir. 2009). The request in the complaint reads:
An amount in excess of $2,000,000.00 for each of the
plaintiffs, for a total of $8,000,000.00 in compensatory
damages for the harm done to the plaintiffs due to the
actions taken against their father and husband, as well
as the violation of their own rights, this amount
including loss of expected income which plaintiffs would
have received had Miguel Cáceres-Cruz survived, other
economic loss associated with the death of their father
and husband, and compensation for physical and emotional
sufferings . . . . (Docket No. 64, p. 17.)
The plaintiffs’ amended complaint provides neither a “basis for the
figure” nor a “connection between [the tortious act] and the
damage.”
omitted).

Action Repair, Inc., 776 F.2d at 150 (internal citation
Subsequently, however, the plaintiffs provided a more

detailed account of the special damages requested in the proposed
pretrial order filed by the parties.

(Docket No. 359.)

A

subsequent pretrial order may serve as an opportunity to supercede
a complaint.

Weyerhaeuser Co., v. Brantley, 510 F.3d 1256, 1267

Civil No. 08-1486 (FAB)

11

(10th Cir. 2007).

The plaintiffs have sufficiently pled the

requested

damages

special

because

they

provided

detailed

allegations of their special damages in the proposed pretrial
order, and defendants failed to object to the allegations of
special damages.

Cf. Rodriguez-Garcia v. Miranda-Marin, 610 F.3d

756 & n. 18 (1st Cir. 2010) (holding that a plaintiff’s claim was
waived when not included in the complaint or pretrial order)
(emphasis added); see also Weyerhaeuser Co., 510 F.3d at 1267
(holding that special damages were sufficiently pled where party
specified the damages in the pretrial order and the opposing party
failed to object).
III. Conclusion
For the foregoing reasons, the Court GRANTS plaintiffs’ motion
in limine to exclude any mention, evidence, or argument pertaining
to the acquittal of defendants Sustache and Diaz in their criminal
trial,

and

testimony

deems
from

MOOT

plaintiffs’

Santiago-Rullan.

request
The

to

Court

exclude
also

expert

NOTES

the

plaintiffs’ special damages brief and allows plaintiffs to proceed
with

their

allegations

of

special

damages

in

their

personal

capacity wrongful death action pursuant to article 1802 of the
Civil Code.
IT IS SO ORDERED.
San Juan, Puerto Rico, April 27, 2012.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE