United States Court of Appeals For the First Circuit

No. 19-1139

GRETCHEN LAUREANO-QUIÑONES,

Plaintiff, Appellant,

v.

DR. RICHARD NADAL-CARRIÓN,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Silvia Carreño-Coll, U.S. Magistrate Judge]

Before

Lynch, Lipez, and Barron, Circuit Judges.

Hector M. Alvarado-Tizol, Sr. for appellant. Jeannette Lopez de Victoria, with whom Oliveras & Ortiz, PCS, was on brief, for appellee.

December 18, 2020 BARRON, Circuit Judge. This appeal concerns a pair of

claims that Gretchen Laureano Quiñones ("Laureano") brought in

2015 in the District of Puerto Rico against Dr. Richard Nadal

Carrión ("Nadal") following her abdominoplasty surgery. We affirm

the grant of summary judgment to Nadal. We also affirm the denial

of Laureano's motion for reconsideration.

I.

The undisputed facts are the following. Nadal conducted

an abdominoplasty surgery on Laureano on June 29, 2012, after

Laureano had signed a consent form that alerted her, among other

things, to the risk of scarring. The surgery left Laureano with

a scar that she alleges looks like a second belly button. Laureano

and Nadal agreed that he would perform a cosmetic scar revision

and repositioning procedure, but the procedure did not occur after

Laureano refused to sign a form that Nadal required her to sign in

advance.

Laureano filed suit against Nadal in a local court in

Puerto Rico, which was dismissed without prejudice. Laureano then

brought the action before us here in the United States District

Court for the District of Puerto Rico on October 16, 2015, based

on diversity of citizenship. See

. Both she and

Nadal consented to having it referred to a United States magistrate

judge for all further proceedings, including the entry of judgment.

See

(c).

- 2 - The operative complaint sets forth a number of claims

against Nadal under Puerto Rico law and requests compensatory

damages in the amount of $900,000. This appeal concerns two of

the claims, which were for, respectively, negligently failing to

obtain Laureano's informed consent before the abdominoplasty and

negligently abandoning her thereafter.

The informed consent claim alleges that Nadal failed to

disclose and discuss the risks of the abdominoplasty -- including

the risks of suffering "the negative results she obtained after

the surgery." Laureano contends that if Nadal had "advised that

she could obtain bad results, ending with the appearance of two

belly bottoms [sic]," she would not have agreed to the surgery.

The patient abandonment claim alleges that Nadal did not

perform a corrective procedure after that initial surgery and

"never[] followed up with her." Laureano recharacterized this

claim below, however, contending that the abandonment consisted

not of Nadal's failure to follow up but of his conditioning the

corrective procedure on her signing a consent form that she

considered unacceptable.

Laureano moved for summary judgment on all her

claims -- including the two just described -- on September 19,

2016, and refiled a corrected summary judgment motion ten days

later. Each time, she attached a consultation report from Dr.

- 3 - David Leitner ("Leitner") to support her allegations against

Nadal.

Upon Nadal's request, the Magistrate Judge denied

Laureano's motion for summary judgment as premature and ordered

discovery. After Nadal deposed Leitner, Laureano renewed her

motion for summary judgment. At that point, Nadal moved for

summary judgment on all of Laureano's claims and filed a motion in

limine to exclude Leitner's testimony pursuant to Daubert v.

Merrell Dow Pharms., Inc.,

(1993), and Federal Rule

of Evidence 702. The Magistrate Judge held a hearing on Nadal's

motion in limine and granted it on July 23, 2018, upon determining

that Leitner's testimony lacked a reliable foundation. Then, on

August 24, 2018, having previously denied Laureano's motion for

summary judgment, the Magistrate Judge granted Nadal's motion for

summary judgment on the ground that Laureano had failed to provide

expert testimony to support her claims against Nadal. The

Magistrate Judge reasoned that Puerto Rico law required such

testimony for her to establish both that Nadal breached his duty

to provide the minimum standard of care owed to her and that there

was a causal link between that breach and the harm for which she

sought recovery. The Magistrate Judge then denied Laureano's

motion for reconsideration. Laureano appeals both the grant of

summary judgment to Nadal on her informed consent and patient

- 4 - abandonment claims and the denial of her motion for reconsideration

of those rulings.

II.

We start with Laureano's challenge to the Magistrate

Judge's grant of summary judgment to Nadal on her informed consent

claim. We apply Puerto Rico law, see Rolon–Alvarado v.

Municipality of San Juan,

(1st Cir. 1993), and our

review is de novo, see Hill v. Walsh,

(1st Cir.

2018).

Under Puerto Rico law, "[i]n order to determine the

applicable standard of care in a medical malpractice action and to

make a judgment on causation, a trier of fact will generally need

the assistance of expert testimony." Pagés-Ramírez v. Ramírez-

González,

(1st Cir. 2010). Without taking issue

with this general requirement, Laureano, who does not challenge

the exclusion of Dr. Leitner's testimony on appeal, contends that

she did not need to support her informed consent claim with expert

testimony.

Laureano relies in part on Cruz Avilés v. Bella Vista

Hosp., Inc.,

(D.P.R. 2000),1 which also

1 Laureano also contends on appeal that Nadal's failure to give adequate warning violated a regulation issued by the Office of the Patient's Advocate of Puerto Rico. See Office of the Patient's Advocate of P.R., Regulations to Implement the Provisions of Public Law 194 of August, 2000, Regulation No. 7617

- 5 - concerned an informed consent claim under Puerto Rico law.

. The district court explained there that, under Puerto Rico

law, a medical malpractice allegation based on lack of informed

consent "'constitutes an independent and distinct cause of action

from a cause of action for medical malpractice in diagnosis or

treatment.'"

at 202 (quoting Santiago Otero v. Méndez,

(1994), 1994 P.R.-Eng. 909, 224 (P.R. 1994)). But, in

so doing, Cruz Avilés did not purport to take issue with the

holding of the Supreme Court of Puerto Rico in Sepúlveda de

Arrieta v. Barreto,

(1994), 1994 P.R.-Eng. 98, 876

(P.R. 1994), that a plaintiff must "bring expert testimony to

establish that[] a reasonable medical practitioner . . . would

have divulged the information."

at 743 (citing Fuller v.

Starnes,

(1980)); see also id. at 752 (adopting the

"medical professional" standard requiring expert testimony). And

while Cruz Avilés relied on the Supreme Court of Puerto Rico's

decision in Santiago Otero, nothing in that precedent is at odds

with Sepúlveda de Arrieta regarding the issue at hand.

(Nov. 21, 2008). But, Laureano added this contention for the first time in her motion for reconsideration, and she makes no argument as to how, given that it was not made below in opposing Nadal's motion for summary judgment, it nonetheless suffices to show that the Magistrate Judge's grant of that motion must be overturned. See Crispin-Taveras v. Municipality of Carolina,

(1st Cir. 2011) ("Because appellants forfeited their argument by failing to raise it in a timely manner, we review only for plain error." (citing Rivera-Torres v. Ortiz Velez,

(1st Cir. 2003))).

- 6 - Laureano also relies on the D.C. Circuit's decision in

Canterbury v. Spence,

(D.C. Cir. 1972). But, that

case concerned the law of the District of Columbia, not Puerto

Rico.

. Moreover, in construing Puerto Rico law, the

Supreme Court of Puerto Rico has expressly rejected Canterbury's

approach and evaluated medical malpractice allegations based on

lack of informed consent from the perspective of the physician

rather than the patient. See Sepúlveda de Arrieta,

. Under Puerto Rico law, that is, courts determine

the scope of a physician's duty of disclosure by looking to the

"prevailing medical practice,"

, and assess "causation

between the negligent . . . omission and the harm" by asking "what

the physician [could] foresee as a normal consequence of his

omission,"

.

Thus, because Laureano identifies no supportive

precedent and develops no argument as to why, despite the absence

of any such authority, her particular claim could survive summary

judgment without expert testimony to support it, her challenge to

the grant of summary judgment to Nadal on this claim fails. See

Rodríguez-Díaz v. Seguros Triple-S, Inc.,

(1st

Cir. 2011). And because her motion for reconsideration is

"directed to the underlying substantive issue (the propriety vel

non of summary judgment) rather than the procedural issue (the

desirability vel non of reconsideration)," Best Auto Repair Shop,

- 7 - Inc. v. Universal Ins. Grp.,

(1st Cir. 2017)

(quoting Santiago v. Puerto Rico,

(1st Cir.

2011)), her challenge to the denial of that motion fails as well,

id.2

III.

Laureano's challenge to the Magistrate Judge's grant of

summary judgment to Nadal on her patient abandonment claim also

lacks merit. Here, too, Laureano contends that the Magistrate

Judge erred in granting summary judgment against her based on her

failure to provide supportive expert testimony, as she claims that

there is no such requirement under Puerto Rico law for a claim of

this type. And here, too, our review is de novo. See Hill,

.

Laureano identifies no case law that supports her

contention that, although Puerto Rico law generally requires that

a plaintiff bringing a medical malpractice claim "needs the

assistance of expert testimony" to demonstrate "the applicable

2 Although Laureano did raise her contention about Regulation No. 7617 in her motion for reconsideration, she does not argue that the Magistrate Judge committed an abuse of discretion in denying her motion without addressing that contention. Nor do we see how any such argument could succeed, given that Laureano could have raised her Regulation No. 7617 contention earlier but did not. See Feliciano-Hernández v. Pereira-Castillo,

(1st Cir. 2011) (finding no abuse of discretion in the district court's denial of a motion for reconsideration where the movant had asked the court "to consider new arguments that [she] could have made earlier").

- 8 - standard of care . . . and to make a judgment on causation," Pagés-

Ramírez,

, a plaintiff who is bringing a medical

malpractice claim for patient abandonment needs no such

assistance. Nor does she develop any argument that the Supreme

Court of Puerto Rico would hold that a plaintiff bringing such a

claim is relieved of that requirement.3 Accordingly, her challenge

to the grant of summary judgment to Nadal on this claim fails, as

does her challenge to the denial of her motion for reconsideration.

See Best Auto Repair Shop, Inc.,

.4

IV.

The judgment below is affirmed.

3 Just as Laureano does in connection with her challenge to the Magistrate Judge's grant of summary judgment to Nadal on her claim for lack of informed consent, she argues to us that, based on Regulation No. 7617, the Magistrate Judge erred in granting summary judgment to Nadal on her patient abandonment claim. But, Laureano offers no explanation for how this argument could suffice to require us to overturn the Magistrate Judge's ruling on that score given that she made it for the first time in her motion for reconsideration. See Crispin-Taveras,

(applying plain error review to arguments in civil cases not properly preserved). 4 Laureano included her Regulation No. 7617 argument in her motion for reconsideration in connection with her challenge to the Magistrate Judge's grant of summary judgment to Nadal on her patient abandonment claim. But, she provides no basis for concluding that the Magistrate Judge committed an abuse of discretion in denying her motion as to the Regulation No. 7617 argument, given that she "could have made [it] earlier." Feliciano-Hernández,

.

- 9 -