Lazaro et al v. Abbott Medical Optics, Inc.

Filing 36

OPINION AND ORDER granting in part and denying in part 5 Motion to Dismiss for Failure to State a Claim. Signed by Judge Juan M. Perez-Gimenez on 4/17/2017. (PMA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ALBERTO M. LAZARO, et al.
Plaintiffs,
CIV. NO. 16-1248(PG)
v.
ABBOTT MEDICAL OPTICS, INC.,
Defendant.

OPINION AND ORDER
Before the court is defendant Abbott Medical Optics’ (“defendant”)
motion for partial dismissal, and plaintiffs Alberto M. Lazaro (“Lazaro”)
and Vanessa Aymerich’s (“Aymerich”)(collectively, “plaintiffs”) opposition
thereto. 1

See Docket Nos. 5 and 9. For the reasons specified below,

defendant’s motion is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
On February 12, 2016, plaintiffs filed a civil suit, alleging that
Lazaro

sustained

serious

injuries

directly

caused

by

a

contact

lens

disinfectant solution, the Complete MoisturePlus Multi Purpose Solution
(“CMMPS”). The solution is manufactured, marketed, and distributed by
defendant. See Docket No. 1. Plaintiffs allege that, less than twenty-four
hours after first using CMMPS on April 23, 2014, Lazaro’s lower half of the
right eye filled with pus and swelled to the point where he could not open
it. Plaintiffs claim Lazaro suffered severe pain and was diagnosed with
Acanthamoeba Keratitis, an infection they aver has led to permanent corneal
scarring and loss of vision.
Plaintiffs raise several causes of action, among them a claim for
breach of implied warranty. To that effect, plaintiffs allege that defendant
represented to the general public that CMMPS was of “merchantable quality”
and “safe and fit for its intended use.” Lazaro relied upon the “skill,
judgment and implied warranty of the defendant” and bought CMMPS. However,
plaintiffs claim CMMPS was unsafe when applied for its intended use, and
was not of merchantable quality as warranted by defendant.

1 Lazaro and Aymerich also file suit on behalf of the Lazaro-Aymerich conjugal
partnership (the “partnership”).

Civ. No. 16-1248 (PG)

Page 2

On April 18, 2016, defendant filed a partial motion to dismiss
plaintiffs’ complaint pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. Therein, defendant argues that both the partnership’s and
Aymerich’s claims are time-barred. Defendant also avers that the breach of
implied

warranty

claim

advanced

by

plaintiffs

is

time-barred

and,

alternatively, insufficiently plead.
Plaintiffs

opposed

defendant’s

motion.

They

argue

that

the

partnership’s and Aymerich’s claims are timely brought because the statute
of limitations period for these claims was tolled by a letter counsel sent
to defendant on February 17, 2015 (“the letter”). Furthermore, plaintiffs
claim that subsequent conversations between counsels for both parties
further put defendant on notice as to the legal claims all of the plaintiffs
intended to raise in court. Counsel for plaintiffs submitted, as an exhibit
attached to the opposition to defendant’s motion, a statement under penalty
of perjury (“the affidavit”) attesting the conversations that took place in
late March and early April of 2015, alerting defendant of Aymerich’s and
the partnership’s legal claims. See Docket No. 9-3. On June 15, 2015
plaintiffs tendered a settlement demand. Copies of the letter and the
settlement demand were submitted to the court as exhibits to plaintiff’s
opposition. See Docket Nos. 9-1 and 9-4. 2
Defendant, in turn, replied to plaintiff’s opposition. See Docket No.
13. Defendant argues the statute of limitations was not tolled as to any of
the partnership’s and Aymerich’s claims because the letter references
neither of them. Defendant also categorizes the affidavit as a last-ditch
attempt to preserve the partnership’s and Aymerich’s claims through a selfserving declaration that was tailor-made to survive defendant’s motion to
dismiss. Notwithstanding, defendant does not challenge the validity of the
letter as an extrajudicial tolling mechanism for Lazaro’s claims.
Plaintiffs rely on materials extraneous to the pleadings to oppose
defendant’s claim that the partnership’s and Aymerich’s claims are time-

2 Docket No. 9-4 was submitted in Spanish, with leave of the court. A certified
translation was later submitted. See Docket No. 16. The court will refer to the certified
translation when alluding to the settlement demand.

Civ. No. 16-1248 (PG)

Page 3

barred. Thus, defendant’s motion to dismiss will be partially converted
into a motion for summary judgment. Defendant’s challenge to plaintiffs’
action for breach of implied warranty will not undergo such conversion
because there are no extraneous materials regarding that matter for the
court to consider.
The court will first assess the challenge to plaintiffs’ implied breach
of warranty claim under a motion to dismiss standard. Then, it will address
the

conversion,

and

consider

the timeliness

of

the

partnership’s

and

Aymerich’s claims under a summary judgment standard.
II. IMPLIED BREACH OF WARRANTY CLAIM
A. Motion to Dismiss Standard
Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of
a complaint that fails to state a claim upon which relief could be granted.
“To avoid dismissal, a complaint must provide ‘a short and plain statement
of the claim showing that the pleader is entitled to relief.’” GarciaCatalan v. United States, 734 F.3d 100, 102 (1st Cir.2013) (quoting Fed. R.
Civ. P. 8(a)(2)). When ruling on a motion to dismiss for failure to state
a claim, a district court must “ask whether the complaint states a claim to
relief that is plausible on its face, accepting the plaintiff’s factual
allegations and drawing all reasonable inferences in the plaintiff’s favor.”
Cooper v. Charter Communications Entertainments I, LLC, 760 F.3d 103, 106
(1st

Cir.2014)(citing

Maloy

v.

Ballori-Lage,

744

F.3d

250,

252

(1st

Cir.2014)) (internal quotations marks omitted). Additionally, courts “may
augment these facts and inferences with data points gleaned from documents
incorporated by reference into the complaint, matters of public record, and
facts susceptible to judicial notice.” A.G. ex rel. Maddox v. v. Esevier
Inc., 732 F.3d 77, 80 (1st Cir.2013) (citing Haley v. City of Boston, 657
F.3d 39, 46 (1st Cir.2011).
“To

cross

the

plausibility

threshold,

the

plaintiff

must

‘plead

factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.’” Cooper, 760 F.3d at
106 (citing Maloy 744 F.3d at 252). See also Ashcroft v. Iqbal, 556 U.S.

Civ. No. 16-1248 (PG)

Page 4

662, 678 (2009). That is, “[f]actual allegations must be enough to raise a
right to relief above the speculative level, … , on the assumption that all
the allegations in the complaint are true (even if doubtful in fact) … .”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations
and quotation marks omitted).
“In resolving a motion to dismiss, a court should employ a two-pronged
approach. It should begin by identifying and disregarding statements in the
complaint that merely offer legal conclusions couched as fact or threadbare
recitals of the elements of a cause of action.” Ocasio-Hernandez v. FortunoBurset, 640 F.3d 1, 12 (1st Cir.2011) (citing Twombly, 550 U.S. at 555)
(internal quotations marks omitted). That is, the court “need not accept as
true legal conclusions from the complaint or naked assertions devoid of
further factual enhancement.” Maldonado v. Fontanes, 568 F.3d 263, 266 (1st
Cir.2009) (citing Iqbal, 129 S.Ct. at 1960). “A complaint ‘must contain
more than a rote recital of the elements of a cause of action,’ but need
not include ‘detailed factual allegations.’” Rodriguez-Vives v. Puerto Rico
Firefighters Corps of Puerto Rico, 743 F.3d 278, 283 (1st Cir.2014) (citing
Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 53 (1st Cir.2013)). “Nonconclusory factual allegations in the complaint must then be treated as
true, even if seemingly incredible.” Ocasio-Hernandez, 640 F.3d at 12
(citing Iqbal, 129 S.Ct. at 1951).
“Determining whether a complaint states a plausible claim for relief
will … be a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Iqbal, 129 S.Ct. at 1950.
Nevertheless, when evaluating the plausibility of a legal claim, a court
may not “attempt to forecast a plaintiff’s likelihood of success on the
merits; a well-pleaded complaint may proceed even if … a recovery is very
remote and unlikely.” Ocasio-Hernandez, 640 F.3d at 12-13 (citing Twombly,
550 U.S. at 556). As a result, courts should read the complaint “as a whole”
and be cautious not to apply the plausibility standard “too mechanically.”
See Rodriguez-Vives, 743 F.3d at 283 (citing Garcia-Catalan, 734 F.3d at
101, 103).

Civ. No. 16-1248 (PG)

Page 5

B. Discussion
Defendant

challenges

both

the

timeliness

and

the

sufficiency

of

plaintiffs’ breach of implied warranty claim. However, the court need not
consider these arguments. Plaintiff’s claim is merely the chariot’s fifth
wheel. Because breach of warranty claims based on personal injury are
tantamount to strict liability claims, pleading both is wholly unnecessary.
See

Kunkel

v.

Motor

Sport,

Inc.,

349

F.

Supp.

2d

198,

210

(D.P.R.

2004)(citing Mendoza v. Cerveceria Corona, 97 P.R.R. 487 (1969)).
How Puerto Rico courts approach breach of implied warranty claims
depends on if they are of an ex delicto or an ex contractu nature. 3 See In
re Dupont-Benlate Litig., 877 F. Supp. 779, 787 (D.P.R. 1995); Ramos
Santiago v. Wellcraft Marine, 93 F. Supp. 2d 112 (D.P.R. 2000).
If

they

are

ex

contractu

in

nature

–

claims

that

stem

from

a

contractual obligation – then they arise from Article 1373 of the Puerto
Rico Civil Code. See P.R. LAWS ANN. tit. 31, § 3841. These claims rely on
contractual law and must observe a six-month statute of limitations period.
See Torres-Mas v. Carver Boat Corp., 233 F. Supp. 2d 253, 257 (D.P.R. 2002)
On the other hand, if they are ex delicto creatures – claims that stem from
a tort - courts analyze them pursuant to the tenets of strict liability
theory, and apply the one-year statute of limitations proscribed for those
actions under Puerto Rico law. See In re Dupont-Benlate Litig., 877 F. Supp.
at 787; Ramos Santiago, 93 F. Supp. 2d 112.
Plaintiffs’ claim of breach of implied warranty is an ex delicto claim
because it stems from a personal injury. Accordingly, this court must apply
the

one-year

statute

of

limitations

to

plaintiffs’

breach

of

implied

warranty claim.
Plaintiffs raise claims of strict liability and negligence in their
complaint, as well as a general tort action under Article 1802 of the Puerto
Rico Civil Code. See P.R. LAWS ANN. tit. 31, § 5141. As stated supra, because
breach of warranty claims based on personal injury are tantamount to strict

3 Ex delicto claims arise from a tort, while ex contractu claims arise from a contract.
See Ex delicto, BLACK’S LAW DICTIONARY (10th ed. 2014); Ex contractus, BLACK’S LAW DICTIONARY (10th
ed. 2014).

Civ. No. 16-1248 (PG)

liability

claims,

the

Page 6

breach

of

implied

warranty

claim

is

rendered

duplicitous by plaintiffs’ other claims. See Kunkel, 349 F. Supp. 2d at 210
(quoting In re DuPont–Benlate Litig., 877 F.Supp. at 784 n. 4. (it does
“not make much sense to [plead] contractual implied warranty and negligence
with strict liability”)). Hence, considering the breach of implied warranty
claim would result in an inefficient use of the court’s resources. See
Kunkel, 349 F. Supp. 2d at 210 (“alleging breach of warranty claims was
superfluous and resulted in the inefficient use of this court’s resources”).
At any rate, plaintiffs’ ability to recover compensation remains
unhindered by this disposition – plaintiffs have already raised plausible
indemnifiable claims for the damages resulting from the same set of facts.
The elements of their breach of warranty claim are encompassed therein. For
these reasons, defendant’s motion is GRANTED IN PART and plaintiffs’ breach
of implied warranty claim dismissed.
III. THE PARTNERSHIP’S AND AYMERICH’S CLAIMS
A. Conversion
Courts may not consider matters outside the pleadings when ruling on
a 12(b)(6) motion to dismiss. See Cooperativa de Ahorro y Credito Aguada v.
Kidder, Peabody & Co., 993 F.2d 269, 272 (1st Cir. 1993) (quoting Watterson
v. Page, 987 F.2d 1, 3 (1st Cir. 1993)). When materials extraneous to the
pleadings are presented to and accepted by the court, the motion to dismiss
shall be converted into a motion for summary judgment, and construed as
such. See C.B. Trucking, Inc. v. Waste Mgmt., Inc., 137 F.3d 41, 43 (1st
Cir. 1998)
Yet, “conversion by the district judge should be exercised with great
caution and attention to the parties’ procedural rights.” 5C CHARLES ALAN
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1366 (3d ed. 2004). To
that extent, when courts convert a Rule 12(b)(6) motion to a motion for
summary judgment, “all parties shall be given reasonable opportunity to
present all material made pertinent to such a motion by Rule 56.” Fed. R.
Civ. P. 12(b).

Civ. No. 16-1248 (PG)

However,

the

Page 7

First

Circuit

“does

not

mechanically

enforce

the

requirement of express notice of a district court’s intention to convert a
Rule 12(b)(6) motion into a motion for summary judgment.” Chaparro-Febus v.
Int’l Longshoremen Ass’n, Local 1575, 983 F.2d 325, 332 (1st Cir. 1992). A
court’s failure to expressly notify the conversion is treated as harmless
when the opposing party has received the extraneous materials, had ample
time to respond to them, and has not controverted their accuracy. Moody v.
Town of Weymouth, 805 F.2d 30, 31 (1st Cir. 1986). Still, the court should
not exercise conversion when it would surprise or be unfair to the defeated
party. Clorox Co. Puerto Rico v. Proctor & Gamble Commercial Co., 228 F.3d
24, 31 (1st Cir. 2000).
The need for these protections is greatly reduced when plaintiffs
themselves submit extraneous materials in their efforts to defeat a motion
to dismiss. MHI Shipbuilding, LLC v. Nat’l Fire Ins. Co. of Hartford, 286
B.R. 16, 21 (D. Mass. 2002) (citing Watterson, 987 F.2d at 4 (citing Cortec
Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991)))(“The
primary reason for not considering documents outside the complaint is to
protect the plaintiff from unfair surprise and therefore the need for the
rule is greatly reduced when it is the plaintiff (and not the defendant)
who seeks to introduce additional documents.”)
In

the

present

case,

where

plaintiffs

have

brought

extraneous

materials into the record, the court will convert defendant’s 12(b) motion
to dismiss into a motion for summary judgment.
B. Summary Judgment Standard
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). The Supreme Court encourages employing summary judgment in
federal courts - it “[avoids] full blown trials in unwinnable cases, …
[conserves] parties’ time and money, and [permits] the court to husband
scarce judicial resources.” McCarthy v. Northwest Airlines, Inc., 56 F.3d

Civ. No. 16-1248 (PG)

Page 8

313, 314 (1st Cir. 1995). See also Celotex Corp. v. Catrett, 477 U.S. 317
(1986).
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). The court must review the record “taken as a whole,” and “may
not make credibility determinations or weigh the evidence.” Reeves v.
Anderson Plumbing Productions Inc., 530 U.S. 133, 135 (2000). Credibility
determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are functions of a jury, not of a judge. See id.
In short, when there is a genuine dispute as to any material fact, and
when a court would be required to make credibility determinations, weigh
the evidence, or draw legitimate inferences from the facts in order to
adjudicate a controversy, summary judgment will not be granted. While no
legitimate inferences can be drawn, the court will construe all reasonable
inferences in favor of the nonmoving party. See Stoutt v. Banco Popular de
Puerto Rico, 158 F. Supp. 2d 167, 171 (D.P.R. 2001). Still, the nonmoving
party is required to demonstrate “through submissions of evidentiary quality
that a trial worthy issue persists.” Iverson v. City of Boston, 452 F.3d
94, 108 (1st Cir. 2006).
C. Discussion
Defendant argues that the partnership’s and Aymerich’s claims are
time-barred. In response, plaintiffs contend that extrajudicial claims
tolled the statute of limitations period.
The

Puerto

Rico

Civil

Code

establishes

a

one-year

statute

of

limitations period for tort claims. See P.R. LAWS ANN. tit. 31, §§ 5298,
5299.
when

There is no doubt that the clock started ticking on April 24, 2014,
plaintiffs

first

gained

constructive

knowledge

of

the

damage to

Civ. No. 16-1248 (PG)

Page 9

Lazaro’s right eye. Plaintiffs filed suit on February 12, 2016, almost two
years after the onset of the statute of limitations period.
However,

a

creditor’s

extrajudicial

claim

tolls

the

limitations

period. See P.R. LAWS ANN. tit. 31, § 5303. Extrajudicial claims must
constitute an “unmistakable manifestation of one, who threatened with the
loss of his right, expresses his wish not to lose it.” Vargas–Ruiz v. Golden
Arch Dev., Inc., 283 F.Supp.2d 450, 456 (D.P.R. 2003). Moreover, they “must
require or demand the same conduct or relief ultimately sought in the
subsequent lawsuit.” Kery v. Am. Airlines, Inc., 931 F. Supp. 947, 953
(D.P.R. 1995).
“Once the statute of limitations is tolled on an action, the one year
period is reset and begins to run again from the beginning.” Ramos v. Roman,
83 F.Supp.2d 233, 241 (D.P.R. 2000). Puerto Rico courts favor allowing
tolling - “[the] prescription of the right is the exception, being its
exercise or conservation the norm.” Kery, 931 F. Supp. at 952. (quoting
Galib–Frangie v. El Vocero de Puerto Rico, 95 JTS 71, 922 (1995)).
The party who maintains the existence of an obligation bears the burden
of its proof. See P.R. LAWS ANN. tit. 31, § 1168. Thus “the burden of proving
tolling, either through direct or circumstantial evidence, falls upon the
party asserting it.” Kery, 931 F. Supp. at 951. The court finds that
plaintiffs ably bear that burden through their evidentiary submissions.
Plaintiffs submit a letter, a settlement demand, and an affidavit to
support their position that the limitations period was tolled. The letter
does not evince tolling of the limitations period for the partnership and
Aymerich because their claims are not sufficiently set forth therein. The
settlement demand cannot achieve the same goal because it took place after
the period had expired (dated June 15, 2015). The affidavit, howbeit,
strikes the right note.
Through

the

affidavit,

counsel

for

plaintiffs

stipulates

that

defendant was put on notice of the partnership’s and Aymerich’s claims by
way of conversations that took place in late March and early April 2015,
before the original statute of limitations period had expired. Defendant

Civ. No. 16-1248 (PG)

Page 10

refutes the affidavit by essentially characterizing it as a sham, tailormade to surmount defendant’s motion. The court disagrees.
While

the

affidavit

is

self-serving,

it

is

adequate

evidentiary

support for plaintiffs’ contention. “Even a clearly self-serving affidavit
constitutes evidence which the court must consider when resolving summary
judgment motions.” Levine-Diaz v. Humana Health Care, 990 F. Supp. 2d 133,
140 (D.P.R. 2014)(quoting Malave–Torres v. Cusido, 919 F.Supp.2d, 198, 204
(D.P.R. 2013)(citing Cadle Co. v. Hayes, 116 F.3d 957, 961 n. 5 (1st
Cir.1997)(“A party’s own affidavit, containing relevant information of which
he has first-hand knowledge, may be self-serving, but it is nonetheless
competent to support or defeat summary judgment.”))).
Furthermore, pursuant to Rule 56 of the Federal Rules of Civil
Procedure, affidavits submitted in support or opposition to a motion for
summary judgment “shall be made on personal knowledge, shall set forth facts
as would be admissible in evidence, and shall show affirmatively that the
affiant is competent to testify in the matters stated therein.” Fed. R.
Civ. P. 56(e). Plaintiffs’ affidavit complies with all the requirements for
the court’s consideration. The affiant, plaintiffs’ counsel, attests as to
his personal actions in a form which would be admissible in evidence,
regarding matters as to which he is competent to testify. Thus, the affidavit
is adequate evidentiary support for plaintiffs’ arguments.
The affidavit references verbal conversations which would have tolled
the statute of limitations period. “Puerto Rico law imposes no formal
requirements on extrajudicial tolling, permitting both written and verbal
tolling.” Deutsche Bank Trust Co. Americas v. Doral Fin. Corp., 841 F. Supp.
2d 593, 603 (D.P.R. 2012). Thus, construing all inferences in favor of the
nonmoving

party,

the

conversations

described

in

plaintiffs’

counsel’s

affidavit signal that plaintiffs complied with all the requirements of an
extrajudicial claim and effectively tolled the limitations period for the
partnership and Aymerich before its expiration. There is no doubt that
extensive conversations between opposing counsels, leading to settlement
negotiations, sufficiently put defendant on notice of plaintiffs legal
claims.

Civ. No. 16-1248 (PG)

Page 11

Although defendant posits the contrary, the grounds set forth in
support for its position are insufficient to tilt the scales in its favor.
The defendant simply did not offer any evidentiary support for its claim
that plaintiffs’ attorney’s sworn statement belied the nature or the content
of plaintiffs’ extrajudicial claims. Thus, plaintiffs have established a
genuine dispute as to a material fact. See Sands, 212 F.3d at 660. In
effect, defendant’s motion has, at this point, run into a stone wall- the
court cannot grant summary judgment where such a dispute subsists. See Id.
Furthermore, plaintiffs have aptly demonstrated “through submissions of
evidentiary quality that a trial worthy issue persists.” Iverson, 452 F.3d
at

108.

Thus,

defendant’s

motion

is

DENIED

IN

PART

insofar

as

the

partnership’s and Aymerich’s claims will not be dismissed at this stage.
IV. CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss is GRANTED
IN PART insofar as plaintiffs’ claim of breach of implied warranty is hereby
dismissed. Defendant’s motion to dismiss, after being converted into a
motion for summary judgment, is DENIED IN PART inasmuch as the claims set
forth by the partnership and by Aymerich survive.
IT IS SO ORDERED.
In San Juan, Puerto Rico, April 17, 2017.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PEREZ-GIMENEZ
SENIOR U.S. DISTRICT JUDGE