Gonzalez-Morales v. Presbyterian Community Hospital, Inc. et al

Filing 234

OPINION AND ORDER denying 163 Motion for Summary Judgment filed by Presbyterian Community Hospital, Inc. Signed by Judge Juan M. Perez-Gimenez on 04/26/2019. (NNR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ZORAIDA GONZALEZ MORALES,
Plaintiff,
v.
ASHFORD PRESBYTERIAN

CIV. NO. 13-1906 (PG)

COMMUNITY HOSPITAL, INC., et al.,
Defendants.
OPINION AND ORDER
Defendant Ashford Presbyterian Community Hospital, Inc., (“defendant” or “the hospital”)
moves for summary judgment. See Docket No. 163.1 Plaintiff Zoraida Gonzalez-Morales (“plaintiff”)
opposes. See Docket No. 178. For the following reasons, defendant’s motion is DENIED.
I. BACKGROUND
On December 11, 2013, plaintiff filed suit against defendant for allegedly failing to screen
and stabilize plaintiff during a series of emergency room visits that took place in December of 2011,2
in violation of the Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. §
1395dd. 3 See Docket No. 1. Plaintiff later filed an amended complaint and defendant filed a thirdparty complaint against Global Emergency Services, Inc., and its insurance provider. See Docket
No. 3 and 35. On November 17, 2015, this court dismissed plaintiff’s EMTALA claims as they

Defendant captions its Motion for Summary Judgment “Case No.: 12-1028 (FAB).” That case
number refers to a different case before a different District Judge, where the hospital also appeared as
defendant and was represented by the same law firm. The court does not take kindly to such carelessness
and encourages defendant and its attorneys to correctly caption any and all filings before the undersigned.
2 A detailed discussion of plaintiff’s alleged emergency room visits can be found at Docket No. 71.
3 Plaintiff also filed suit against Dr. Raul Vale-Flores, his wife and the conjugal partnership
constituted between them; Dr. Lope M. Gómez-Homrazabal, his wife and the conjugal partnership
constituted between them; Dr. Jose Dueño-Quiñones, his wife and the conjugal partnership constituted
between them and Dr. Rosangel Santiago-Perez, his wife and the conjugal partnership constituted between
them. The complaint includes a supplemental cause of action for medical malpractice pursuant to Article
1802 of the Puerto Rico Civil Code, P.R. LAWS ANN. tit. 31, § 5141.
1

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CIV. NO. 13-1906 (PG)

pertained to defendant’s duty to stabilize. See Docket No. 71. Plaintiff’s duty to screen claims
survived. See id. Defendant now moves for summary judgment. See Docket No. 163.
II. STANDARD OF REVIEW
Through summary judgment, courts “pierce the boilerplate of the pleadings and assay the
parties’ proof in order to determine whether trial is actually required.” Wynne v. Tufts Univ. Sch.
of Med., 976 F.2d 791, 794 (1st Cir. 1992). A court may grant summary judgment only when the
pleadings and the evidence demonstrate that “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). See also Sands v.
Ridefilm Corp., 212 F.3d 657, 660 (1st Cir. 2000). A factual dispute is “genuine” if it could be
resolved in favor of either party, and “material” if it potentially affects the outcome of the case. See
Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir. 2004).
Undisputed facts can be proven or controverted only by “materials of evidentiary quality.”
Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003). Parties must support assertions of
undisputed material facts “by citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers, or
other materials” Fed. R. Civ. P. 56 (c)(1)(A). See also Local Rule 56(b).
III. DISCUSSION
Defendant moves for summary judgment by affirming primarily that the hospital followed
its protocols when screening plaintiff in December 2011. See Docket No. 163-2 at 8-9. However,
defendant supports its position with protocols that were not in force in December 2011: of the eight
protocols included as evidentiary support for the motion, four went into effect after 2011, and
another is undated.
Indeed, the General EMTALA Protocol submitted to the court (“Exhibit 1”) went into effect
in November 2013, and the Triage protocol (“Exhibit 2”), the General Patient Evaluation Protocol

CIV. NO. 13-1906 (PG)

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(“Exhibit 3”), and a Critical Result Notification Protocol (“Exhibit 7”)4 in September 2012 (all four
protocols, collectively, “the late protocols”). See Docket No. 163, Exhibits 1, 2, 3 and 7. The
Observation Protocol submitted to the court (“Exhibit 4”) lacks a date of enforcement. See Docket
No. 163, Exhibit 4. Defendant also submits a sworn statement (“the affidavit” or “Exhibit 9”)
wherein Dianette Reyes Cordero (“the declarant”), the former Nursing Associate Director of the
hospital’s Emergency Department and current Associate Director of the hospital’s Computer
Center, asserts that the late protocols are identical to their 2011 counterparts, which have been lost
or destroyed.5 See Docket No. 163, Exhibit 9. For the reasons stated below, these evidentiary
submissions are insufficient to carry defendant’s motion for summary judgment.
A. Of Getting Blood from Stones: The Best Evidence Rule and Faulty Affidavits
Per the widely-termed Best Evidence Rule, parties seeking to prove the content of a writing
must introduce into evidence the original of that writing.6 See Fed. R. Evid. 1002; Airframe Sys.,
Inc. v. L-3 Commc’ns Corp., 658 F.3d 100, 107 (1st Cir. 2011). The Federal Rules of Evidence
provide four exceptions to that dictum. See Fed. R. Evid. 1004; Airframe Sys., Inc., 658 F.3d at 107.
Only one of those exceptions is relevant here: secondary forms of evidence, such as witness
testimony, may be admitted to prove the content of a writing when the original has been lost or
destroyed. See Fed. R. Evid. 1004(1); Airframe Sys., Inc., 658 F.3d at 107; United States v.
McMahon, 938 F.2d 1501, 1509 (1st Cir. 1991).
When the original has been lost or destroyed, proponents of secondary evidence must show
that the loss or destruction did not operate by way of their own bad faith. See id. To boot, while
“[the] Rule does not mention where the burden of proof lies on a claim of loss or destruction, …
Courts have placed the burden on the proponent and have required a diligent search for the original

4 Defendant also includes an earlier version of the Critical Result Notification Protocol, which
predates December 2011. See Docket 163, Exhibit 6.
5 Plaintiff asserts that defendant’s “loss or destruction” of the missing 2011 protocols constitutes
spoliation. See Docket No. 178 at 8-13. The court need not and will not address spoliation now.
6
Duplicates of the original are generally admissible to the same extent as the original. See Fed. R.
Evid. 1003.

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unless it has clearly been destroyed.” Vol. 5 STEPHEN A. SALTZBURG, MICHAEL M. MARTIN & DANIEL
J. CAPRA, FEDERAL RULES OF EVIDENCE MANUAL § 1004.2 (9th ed. 2006). See also Harrington v.
United States, 504 F.2d 1306, 1313 (1st Cir. 1974); Sylvania Elec. Prod., Inc. v. Flanagan, 352 F.2d
1005, 1008 (1st Cir. 1965); 2 MCCORMICK ON EVID. § 237 (7th ed. 2016).
Thus, in order to prove the content of a writing through secondary evidence, defendant must
show (1) it carried out an unfruitful, diligent search for the original (so as to lead to the conclusion
that the original is lost) or that the original was in fact destroyed, and also that (2) such
demonstrated loss or destruction was not the product of its own bad faith. Here, where defendant
posits simply that the EMTALA protocols in force in 2011 “have been destroyed or cannot be
located,” Exhibit 9 at 3, it has fallen well short of meeting either requirement. Indeed, the cupboard
is bare as to anything that would satisfy them and activate the Rule 1004(1) exception. As such, the
Best Evidence Rule precludes consideration of the late protocols as proof of the contents of their
missing 2011 counterparts.
To boot, and perhaps most importantly, the declarant has demonstrated neither her
competence nor her personal knowledge as to various critical assertions found in the affidavit –
most notably, her statement that the missing protocols were lost or destroyed.
“An affidavit or declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant
is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Conclusory assertions or
arguments found in affidavits must be ignored – in the absence of “specific factual knowledge to
support a statement,” it “cannot serve as probative evidence.” Reynolds v. Steward St. Elizabeth's
Med. Ctr. of Bos., Inc., 364 F. Supp. 3d 37 (D. Mass. 2019).
Affirming that the declarant was the hospital’s Nursing Associate Director in December
2011, is currently Associate Director of the Computer Center, and has reviewed the “emergency
room guides and procedures that are currently in use by [defendant],” Exhibit 9 at 1 (emphasis
ours), does nothing to prove personal knowledge and competence to testify about the contents of

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the EMTALA protocols in place in December of 2011, nor to establish their subsequent loss or
destruction. Such deficiencies deal a fatal blow to the affidavit and, in consequence, to defendant’s
entire motion for summary judgment.
In short, the court cannot consider the protocols that postdate December 2011. See Exhibits
1, 2, 3 and 7. The foundation for the court’s conclusion is twofold. First, the court cannot take the
late protocols as proof of the contents of the protocols in force in December 2011 because they are
not originals or duplicates of the earlier writings, and defendant has failed to demonstrate loss or
destruction and the absence of its own bad faith. Exhibits 1, 2, 3 and 7 are thus inadmissible.7
Second, Exhibit 9 – the affidavit which gives context to the late protocols – cannot support
defendant’s motion for summary judgment because it runs afoul of Rule 56(c)(4). The late protocols
are meaningless without the affidavit.
B. Of Issues at Odds: Material Facts in Controversy
The exclusion of the late protocols and the affidavit stops defendant’s motion for summary
judgment in its tracks because the present case hinges on whether the hospital’s protocols were
followed in 2011. Per EMTALA, covered hospitals must screen emergency room patients for
emergency medical conditions “within the capability of the hospital’s emergency department.” 42
U.S.C. § 1395dd(a). Such screenings must be “reasonably calculated to identify critical medical
conditions” and provided “uniformly to all those who present substantially similar symptoms.”
Correa v. Hosp. San Francisco, 69 F.3d 1188, 1192 (1st Cir. 1995). However, “when a hospital
prescribes internal procedures for a screening examination, those internal procedures set the

7 Undisputed facts can be proven or controverted only by “materials of evidentiary quality.”

Mulvihill,
335 F.3d at 19. On a motion for summary judgment, courts may only consider evidence that would be
admissible or usable at trial. See Asociacion De Periodistas De Puerto Rico v. Mueller, 680 F.3d 70, 78 (1st
Cir. 2012); Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993), certified question answered, 418 Mass. 615, 638
N.E.2d 33 (1994); 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE &
PROCEDURE § 2721 (4th ed. 2018). Cf. Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 89 (1st Cir.
2018) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)) (“hearsay evidence, inadmissible
at trial, cannot be considered on a motion for summary judgment”).

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CIV. NO. 13-1906 (PG)

parameters for an appropriate screening.” Cruz-Queipo v. Hosp. Español Auxilio Mutuo de P.R.,
417 F.3d 67, 70 (1st Cir. 2005) (quotations omitted). Thus, whether defendant followed the
hospital’s existing protocol is the “touchstone [for] gauging” whether plaintiff received an
appropriate, uniform screening. Cruz-Vazquez v. Mennonite Gen. Hosp., Inc., 717 F.3d 64, 70 (1st
Cir. 2013).
Due to the exclusion of the late protocols and the affidavit, Defendant’s Statement of
Uncontested Material Facts (“DSUMF”) ¶¶ 2, 3, 4, 7, 9, 34, 35, 36, 38, 44, 66, 67, and 74 are either
completely unsupported or partly unverifiable. See Fed. R. Civ. P. 56 (c)(1)(A) (parties must support
assertions of undisputed material facts “by citing to particular parts of materials in the record…”)
As such, the aforementioned assertions of uncontested material facts remain in controversy
because defendant cannot demonstrate they are devoid of genuine disputes. See Sands, 212 F.3d at
660. To boot, they all pertain to the core inquiry of plaintiff’s EMTALA screening claim: whether
defendant followed its own protocols when plaintiff visited its Emergency Room in December 2011.
See Cruz-Vazquez, 717 F.3d at 70. As such, it is beyond contest that these facts are material.8 See
Calero-Cerezo, 355 F.3d at 19.
Because there are material facts in genuine controversy, summary judgment cannot be
granted. See Fed. R. Civ. P. 56(a); Sands, 212 F.3d at 660. Defendant’s motion is thus DENIED.
IV. CONCLUSION
For the reasons above, defendant’s motion for summary judgment is DENIED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, April 26, 2019.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PÉREZ-GIMÉNEZ
SENIOR U.S. DISTRICT JUDGE

8

These are not the only material facts in controversy in this case.