Bango, et al v. Universal Insurance Company

Filing 41

OPINION and ORDER denying 31 Motion for Summary Judgment. Signed by US Magistrate Judge Marcos E. Lopez on 6/9/2017. (JMB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ISORIS BANGO SANCHEZ, et al.,
Plaintiffs,
v.

CIVIL NO.: 15-1299 (MEL)

UNIVERSAL INSURANCE COMPANY,
Defendant.

OPINION AND ORDER
On March 25, 2015, Isoris Bango Sánchez (“Mr. Bango”), Wanda Bango Sánchez
(“Ms. Bango”) and Saira Bango Sánchez (collectively “Plaintiffs”) filed the complaint in this case,
invoking the court’s diversity jurisdiction alleging the parties are from different states and the amount
in controversy exceeds $75,000. ECF No. 1. Plaintiffs’ seek recovery for pain, emotional distress,
and economic damages allegedly suffered due to a vehicle collision. Id. Pending before the court is
Defendant’s motion for summary judgment, which challenges the court’s diversity jurisdiction on the
grounds that the amount in controversy does not exceed $75,000. ECF No. 31. Plaintiffs filed a
response in opposition. ECF No. 32.
I.

SUMMARY JUDGMENT STANDARD
The purpose of summary judgment “is to 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). Summary judgment is granted when the record shows 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). “A dispute is genuine if the evidence about the fact is such that a
reasonable jury could resolve the point in the favor of the non-moving party. A fact is material if it
has the potential of determining the outcome of the litigation.” Farmers Ins. Exch. v. RNK, Inc., 632

F.3d 777, 782 (1st Cir. 2011) (quoting Rodríguez-Rivera v. Federico Trilla Reg’l Hosp., 532 F.3d 28,
30 (1st Cir. 2008)).
The party moving for summary judgment bears the burden of showing the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant
presents a properly focused motion “averring ‘an absence of evidence to support the nonmoving
party’s case[,]’ [t]he burden then shifts to the nonmovant to establish the existence of at least one fact
issue which is both ‘genuine’ and ‘material.’” Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.
1990) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)). For issues where the
nonmoving party bears the ultimate burden of proof, that party cannot merely “rely on the absence of
competent evidence, but must affirmatively point to specific facts” in the record “that demonstrate
the existence of an authentic dispute.” McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir.
1995). The plaintiff need not, however, “rely on uncontradicted evidence . . . . So long as the
plaintiff’s evidence is both cognizable and sufficiently strong to support a verdict in her favor, the
factfinder must be allowed to determine which version of the facts is most compelling.” CaleroCerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir. 2004) (emphasis in original).
In assessing a motion for summary judgment, the court “must view the entire record in the
light most hospitable to the party opposing summary judgment, indulging all reasonable inferences
in that party’s favor.” Griggs-Ryan, 904 F.2d at 115 (citations omitted). There is “no room for
credibility determinations, no room for the measured weighing of conflicting evidence such as the
trial process entails, [and] no room for the judge to superimpose his own ideas of probability and
likelihood . . . .” Greenburg v. P. R. Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987). The
court may, however, safely ignore “conclusory allegations, improbable inferences, and unsupported
speculation.” Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (citations
omitted).
2

II.

UNCONTESTED MATERIAL FACTS1
On or about May 7, 2014, Plaintiffs were involved in a vehicle collision the result of which

they are claiming damages. ECF No. 31-1 at ¶1; ECF No. 32-1 at pg. 1 ¶1. The collision left minor
scratches on the rear bumper of the vehicle Plaintiffs were driving. ECF No. 31-1 at ¶2; ECF No. 321 at pg. 1 ¶2. Immediately after the collision, Plaintiffs drove to the house of Ms. Bango’s aunt, where
Mr. Bango called the Police. ECF No. 31-1 at ¶3; ECF No. 32-1 at pg. 1 ¶3; ECF No. 31-1 at ¶4;
ECF No. 32-1 at pg. 1 ¶4. That night, Ms. Bango felt “very stressed and started having a bad
headache,” and developed tension in her neck, limitation of movement on her right and left sides, and
pain in her upper back. ECF No. 32-1 at pg. 4 ¶¶6 and 7. Mr. Bango did not sleep the night of the
incident. ECF No. 32-1 at pg. 4 ¶ 8.
Plaintiffs first visited a hospital the morning after the incident, where they remained for the
entire day. ECF No. 31-1 at ¶7 and 8; ECF No. 32-1 at pg. 2 ¶¶7 and 8. ECF No. 32-1 at pg. 5 ¶17.
Although Ms. and Mr. Bango did not suffer any fractures, (ECF No. 31-1 at ¶9; ECF No. 32-1 at pg.
3 ¶9), Mr. Bango’s neck was immobilized in a “cervical collar” and Ms. Bango’s neck was
immobilized with a “brace.” ECF No. 32-1 at pg. 5 ¶¶12 and 13.
After receiving initial treatment in Puerto Rico, Ms. and Mr. Bango returned to their home in
Florida where they received further medical care. After arriving home in Florida, Mr. Bango felt a

1

Local Federal Court Rule 56 (d) provides:
A party replying to the opposition to a motion for summary judgment shall submit with its reply a
separate, short, and concise statement of material facts which shall be limited to any additional facts
submitted by the opposing party. The reply statement shall admit, deny or qualify those additional
facts by reference to the numbered paragraphs of the opposing party's statement of material facts.
Unless a fact is admitted, the reply shall support each denial or qualification by a record citation . . . .

Several of the Defendant’s replies to Plaintiffs’ proposed facts neither admitted nor denied the corresponding proposed
fact in its entirety, nor included record citations. See e.g., ECF No. 34-1 at ¶ 3 (“It is admitted that the assertions contained
in this paragraph were part of Mr. Isoris Bango’s testimony during his deposition”) see also ECF No 34-1 ¶¶ 4-18, 20,
22, 28-29, and 32. In accordance with Local Federal Court Rule 56, Plaintiffs’ proposed facts were treated as admitted to
the extent Defendant’s corresponding denials or qualifications were not supported by record citations.

3

constant pain in his head and the epidural area, radiating down by the shoulders to his arms and the
upper back. ECF No. 32-1 at pg. 6 ¶19; ECF No. 34-1 at ¶19. After the incident, Mr. Bango received
three epidural injections. ECF No. 32-1 at pg. 7 ¶28; ECF No. 34-1 at ¶ 29. After the epidural
injections, Mr. Bango was referred to a neurosurgeon who recommended a cervical fusion at three
different levels of his neck. ECF No. 32-1 at pg. 7 ¶29; ECF No. 34-1 at ¶29.
Mr. Bango also received psychiatric treatment after the incident; however, he began
psychiatric treatment before the incident. ECF No. 31-1 at ¶24; ECF No. 32-1 at pg. 3 ¶24. Ms. Bango
did not receive any psychological or psychiatric treatment, although she did miss two to three days of
work for other medical treatment due to incident. ECF No. 31-1 at ¶22; ECF No. 32-1 at pg. 3 ¶22.
Among the medical treatment she received, Ms. Bango attended more than fifteen physical therapy
sessions for her upper back, shoulders, and neck. ECF No. 32-1 at pg. 6 ¶26.
On September 28, 2015, Ms. and Mr. Bango each sought and received independent medical
evaluations by medical expert Dr. José López Reymundí. Ms. Bango’s only complaints during her
evaluation with Dr. López Reymundí were upper back pain, worsening when working as a nurse or
doing house chores, and improving with medications. ECF No. 31-1 at ¶11; ECF No. 32-1 at pg. 3
¶11. At the time of the medical evaluation, Ms. Bango referred to having difficulties with bathing,
dressing and sleeping. ECF No. 32-1 at pg. 8 ¶35; ECF No. 34-1 at ¶35. Ms. Bango sat comfortably
during the interview, was able to stand from the chair unassisted, ambulate independently, ambulate
on tiptoes and heels, stand on one leg with good balance, and squat fully. In addition, she had full
range of motion of the upper extremities without evidence of muscle atrophy and no muscle spasms
in the cervical spine. ECF No. 31-1 at ¶10; ECF No. 32-1 at pg. 3 ¶10. Dr. López Reymundí found
that her cervical spine range of motion was well preserved consistent with the neck motions observed
during the interview but with tenderness at the end of the motions. ECF No. 32-1 at pg. 7 ¶33; ECF
No. 34-1 at ¶33. After reviewing relevant medical records, Dr López Reymundí concluded that
4

Ms. Bango suffered a cervical spine strain due to the May 7, 2014, incident, which in his opinion
translates into a 1% whole person impairment. ECF No. 31-1 at ¶12; ECF No. 32-1 at pg. 3 ¶12.
Dr. López Reymundí conducted an independent medical evaluation of Mr. Bango and
concluded that he presented a cervical spine strain, a cervical spine C4/C5 disc protrusion, and bulging
disc C5/C6 and C6/C7. ECF No. 31-1 at ¶13; ECF No. 32-1 at pg. 3 ¶13. He found that Mr. Bango
was able to “squat 60% with low back pain.” ECF No. 32-1 at pg. 8 ¶37; ECF No. 34-1 at ¶37. He
also found tenderness to palpation at the trapezium and base of the neck and muscle spasms. ECF No.
32-1 at pg. 8 ¶38; ECF No. 34-1 at ¶38. Dr. López Reymundí concluded that due to the May 7, 2014,
collision, Mr. Bango suffered a cervical spine strain, and a 2% whole person impairment. ECF No.
32-1 at pg. 8 ¶39; ECF No. 34-1 at ¶39; ECF No. 31-1 at ¶15; ECF No. 32-1 at pg. 3 ¶15.
On the other hand, Dr. López Reymundí found that the disc protrusion that Mr. Bango
presented during his evaluation was more likely than not related to another car accident that he
suffered subsequent to the events giving rise to this case. ECF No. 31-1 at ¶14; ECF No. 32-1 at pg.
3 ¶14. Furthermore, Dr. López Reymundí’s opinion was rendered assuming that Mr. Bango did not
have a problem with his neck prior to the events giving rise to this case. ECF No. 31-1 at ¶17; ECF
No. 32-1 at pg. 3 ¶17. Dr. López Reymundí did not review Mr. Bango’s medical record with the
Social Security Administration as part of the process of rendering his expert report. ECF No. 31-1 at
¶18; ECF No. 32-1 at pg. 3 ¶18.
Defendant’s expert, Dr. José Suárez Castro, reviewed all relevant medical records, including
Mr. Bango’s record with the Social Security Administration, and the expert reports rendered by
Dr. López Reymundí. ECF No. 31-1 at ¶19; ECF No. 32-1 at pg. 3 ¶19. Dr. Suárez Castro concluded
that: (1) Dr. López Reymundí’s opinion is based on the fact that Mr. Bango did not have any history
of cervical conditions prior to the incident of May 7, 2014; (2) Mr. Bango did have chronic problems
with his cervical spine prior to that day; and (3) Mr. Bango has no impairment that can be associated
5

to the events giving rise to this case. ECF No. 31-1 at ¶20; ECF No. 32-1 at pg. 3 ¶20. The parties
agree that Saira Bango, Ms. and Mr. Bango’s minor daughter, did not suffer any injuries from the
May 7, 2014, incident. ECF No. 31-1 at ¶21; ECF No. 32-1 at pg. 3 ¶21.
III.

ANALYSIS
The jurisdiction of a federal court in diversity cases such as this one is limited to actions in

which the controversy is between citizens of different states and involves a sum greater than $75,000.
28 U.S.C. § 1332(a)(1). Defendant contends that the case must be dismissed because the amount in
controversy falls below the jurisdictional threshold.2 Plaintiffs claim damages for pain and suffering
valued “not lower than $250,0000.00 in the matter of Mr. Isoris Bango; $150,000.00 in the matter of
Ms. Wanda Bango Sanchez; [and] $100,000.00 in the matter of Ms. Saira Bango Sanchez.” ECF No.
1 ¶10. They also claim “additional damages” valued not less than $50,000.00 for each Plaintiff.3
A plaintiff’s general allegation of damages that meet the amount requirement suffices unless
questioned by the opposing party or the court. Spielman v. Genzyme Corp., 251 F.3d 1, 5 (1st Cir.
2001). Once the damages allegation is challenged, “the party seeking to invoke jurisdiction has the
burden of alleging with sufficient particularity facts indicating that it is not a legal certainty that the
claim involves less than the jurisdictional amount. A party may meet this burden by amending the
pleadings or by submitting affidavits.” Id. (internal quotations and citations omitted).

Defendant has not challenged the parties’ diversity of citizenship.
“When several plaintiffs assert separate and distinct demands in a single suit, the amount involved in each separate
controversy must be of the requisite amount to be within the jurisdiction of the district court, and that those amounts
cannot be added together to satisfy jurisdictional requirements.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S.
546, 585 (2005) (internal citations and quotations omitted). Title 28 U.S.C. §1367, however, authorizes supplemental
jurisdiction over the claims of a plaintiff in the same controversy—even if those claims are for less than the jurisdictional
amount—so long as the other elements of jurisdiction are present and at least one named plaintiff satisfies the amount-incontroversy requirement. Exxon Mobil Corp., 545 U.S. at 549. Thus, notwithstanding the fact that Plaintiffs submitted no
direct evidence of injuries sustained by Saira Bango, she may remain as a plaintiff in this action so long as the other
jurisdictional elements are present and at least one co-plaintiff satisfies the amount-in-controversy requirement.
2
3

6

As Defendant brought this challenge at the summary judgment stage, the parties have the
benefit of the discovery conducted in this case. In sum, Plaintiffs cited to their depositions and medical
evaluations showing Ms. and Mr. Bango’s alleged pain and suffering has a basis in physical injuries
they sustained from the incident, which continued to linger for more than a year. As of September 28,
2015, Ms. Bango continued to complain of upper back pain, which worsens when she works as a
nurse or does chores and continued to have problems with bathing, dressing and sleeping. As to
Mr. Bango, there is some evidence that he requires future medical care, including surgery. Their
alleged pain and suffering is at least somewhat supported by medical evidence as Dr. López
Reymundí found Ms. and Mr. Bango each suffered cervical strains and 1% and 2% whole person
impairments from the incident, respectively.
While Defendant’s medical expert disputes the cause of Mr. Bango’s medical condition,
weighing the conflicting expert conclusions is better left to a jury. See Greenburg v. P. R. Mar.
Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987) “The precincts patrolled by Rule 56 admit of no
room for credibility determinations, no room for the measured weighing of conflicting evidence such
as the trial process entails, no room for the judge to superimpose his own ideas of probability and
likelihood (no matter how reasonable those ideas may be) upon the carapace of the cold record.” Id.
Although Plaintiffs’ respective 1% and 2% whole person impairments appear relatively mild, and the
possibility of a jury awarding the Plaintiffs much less than the jurisdictional amount is not a remote
one given the circumstances of this case, it is not a legal certainty that the verdict will not at least
barely surpass the $75,000 threshold.
The case presently before the court, however, does not even reach the 3% impairment, thus
making the decision regarding the pending motion for summary judgment a close call. A jury may
well return a verdict below the jurisdictional threshold for each of Plaintiffs’ claims in light of the
minor damage to the vehicle, Ms. Bango’s relatively mild impairment, and uncertainty over the cause
7

of Mr. Bango’s injuries. But it is not legally certain that Mr. Bango’s damages involve less than the
jurisdictional amount. As Mr. Bango met his burden of establishing diversity jurisdiction, the court
exercises supplemental jurisdiction over Ms. Bango and Saira Bango’s claims.4 For the foregoing
reasons, the Defendant’s motion for summary judgment (ECF No. 31) is DENIED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 9th day of June, 2017.
s/Marcos E. López
U.S. Magistrate Judge

No expression is made as to whether it is legally certain that Ms. Bango’s and Saira Bango’s individual claims involve
less than the jurisdictional amount.
4

8