United States Court of Appeals For the First Circuit

No. 19-1956

LUZ B. MELÉNDEZ COLÓN; MILTON RAMOS MELÉNDEZ

Plaintiffs, Appellants,

v.

JULIO ROSADO SÁNCHEZ; SINDICATO DE ASEGURADORES PARA LA SUSCRIPCION CONJUNTA DE SEGUROS DE RESPONSABILIDAD PROFESIONAL MEDICO HOSPITALARIA (SIMED)

Defendants, Appellees.

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

[Hon. Bruce J. McGiverin, U.S. Magistrate Judge]

Before

Barron and Selya, Circuit Judges, and Katzmann, Judge.

Manuel San Juan, with whom Héctor M. Alvarado-Tizol, Mariela Maestre-Cordero, and Law Offices of Manuel San Juan were on brief, for Appellants. Jeanette López de Victoria, with whom Oliveras & Ortiz, PSC was on brief, for Appellees.

April 21, 2021

 Of the United States Court of International Trade, sitting by designation. KATZMANN, Judge. This diversity case concerns a medical

malpractice claim filed by Luz Meléndez Colón and her son Milton

Ramos Meléndez ("Plaintiffs") against Dr. Julio Rosado Sánchez and

his insurer, SIMED ("Defendants").1 The appeal raises questions

regarding the bounds of constructive knowledge under Puerto Rico

law in the context of a statute of limitations where the one-year

clock for timely filing of a lawsuit begins to tick on the date of

the accrual of the claim. Here, as in other such cases, knowledge

by the plaintiffs of the injury and the person who caused it is

key to evaluating whether a claim has been filed before the clock

has run out. At what point can a plaintiff claiming medical

malpractice no longer reasonably be found to lack constructive

knowledge of a potential tort committed against her more than a

year before the filing? To that end, what diligence is required

on the part of a reasonable person whose injuries improve upon

securing treatment by a medical professional other than the alleged

tortfeasor?

In the case before us, the district court set aside a

jury verdict for Plaintiffs, granted Defendants' motion for

judgment as a matter of law, and dismissed the case as time-barred

The action below included Dr. Rosado's wife and their 1

conjugal partnership as co-defendants, but both were dismissed prior to this appeal on March 13, 2019. The initial suit also listed Insurance Company A-Z as a placeholder defendant but Plaintiffs have since identified SIMED as Dr. Rosado’s insurer.

- 2 - upon finding that a reasonable jury could not have concluded that

Plaintiffs' suit was timely filed. Plaintiffs subsequently

initiated this appeal, arguing that the district court erred in

setting aside the jury's finding that even with the exercise of

proper diligence, they could not have had the necessary knowledge

to file suit against Dr. Rosado more than a year before they did.

We determine that the lawsuit was timely filed and not outside the

statute of limitations, reverse the district court's dismissal,

vacate the judgment in favor of Defendants, and remand for

reinstatement of the jury verdict and for such other proceedings

as may be appropriate, consistent with this opinion.

I.

This appeal arises from a series of surgeries performed

by Dr. Rosado, a neurosurgeon, on Meléndez while she was a resident

of Puerto Rico. In 2013, at the age of seventy-two, Meléndez began

suffering from severe back pain. Her pain became so severe that

she retired from her career as a nurse and sought medical

assistance. Prior to consulting Dr. Rosado, Meléndez had

unsuccessfully sought the assistance of numerous doctors regarding

her pain.

On August 20, 2013, Meléndez first met with Dr. Rosado

on the recommendation of a prior treating physician. Dr. Rosado

initially attempted to treat Meléndez's pain without surgery, but

ultimately diagnosed her with spinal compression and recommended

- 3 - surgical treatment. Meléndez underwent the recommended surgery in

February of 2014 but continued to experience escalating back pain

following her operation, which ultimately rendered her bedridden.

In March 2014, Dr. Rosado performed a secondary surgery on Meléndez

but was again unable to alleviate her pain. Meléndez remained

bedridden following the second surgery despite ongoing physical

therapy.

Ultimately Meléndez's son Herminio, who is not a party

to this action, contacted Meléndez's other son, Plaintiff Ramos,

for support. Ramos was at the time employed in the healthcare

industry in Georgia. In June of 2014, Ramos traveled to Puerto

Rico to meet with Dr. Rosado because of his concern regarding his

mother's ongoing back pain and worsening health following her

surgeries. Ramos and Meléndez met with Dr. Rosado on June 6, 2014,

at which time Dr. Rosado initially confused Meléndez's case with

another surgery, but ultimately identified Meléndez and discussed

her ongoing pain and care with Ramos. After the meeting, Meléndez

was again hospitalized, and Dr. Rosado recommended a third surgery.

Rather than agreeing to a third surgery, Ramos chose to bring

Meléndez with him to Georgia for further treatment and requested

her records from Dr. Rosado to facilitate a transfer of care. Dr.

Rosado agreed.

Nevertheless, Dr. Rosado did not transmit copies of

Meléndez's records to either Ramos or Meléndez at that time.

- 4 - Rather, it was only after multiple messages to Dr. Rosado

personally and to his office, along with a complaint regarding the

delay to the Medical Disciplinary and Licensing Board and

associated hearing before the Municipal Court of San Juan, that

Herminio received a copy of Meléndez's records on August 22, 2014.

Upon Ramos's receipt of the records, Meléndez traveled to Georgia

in September 2014 to stay with Ramos and seek additional medical

treatment.2

In Georgia, Meléndez sought treatment at the Emory

Health Emergency Room, and with an orthopedist at the Emory Spine

Center, before ultimately obtaining a referral to Dr. Daniel Refai.

She had her first appointment with Dr. Refai in November 2014.

Dr. Refai reviewed Meléndez's MRI, which had been performed by the

referring physician, and recommended a third surgery on Meléndez's

spine. While Meléndez remained hesitant to undergo another surgery

she ultimately agreed, and after receiving medical clearance was

operated upon by Dr. Refai on December 18, 2014. Following this

third surgery, while her pain was not eradicated, Meléndez

experienced substantial improvement such that she was able to lie

flat, sit, and walk with assistance. She was instructed by the

hospital to strictly limit her motion for six weeks following the

2 Meléndez became a citizen of Georgia. Ramos was already a citizen of Georgia, the Defendants are both citizens of Puerto Rico, and the amount in controversy exceeds $75,000. Accordingly, diversity jurisdiction exists. See

(a).

- 5 - surgery, and ultimately underwent physical therapy through June of

2015.

Dr. Refai continued to see Meléndez regularly until

November 2015 as part of his standard post-surgery recovery

procedure. At her last appointment, in November of 2015, Meléndez

and Ramos asked Dr. Refai to review the records from Meléndez's

earlier surgeries. He agreed, and in mid-2016 Plaintiffs provided

Dr. Refai with the translated records. Shortly thereafter, in

September of 2016, Dr. Refai provided Plaintiffs with a report

stating his opinion that Dr. Rosado had negligently operated upon

Meléndez.

After receiving Dr. Refai's report, Plaintiffs filed a

complaint in United States District Court against Defendants on

October 19, 2016. The case proceeded to a trial on the merits,

the United States Magistrate Judge presiding. At the close of

Plaintiffs' case-in-chief, and then again at the end of Defendants'

case-in-chief, Defendants moved pursuant to Federal Rule of Civil

Procedure 50(a) for judgment as a matter of law. They argued that

Plaintiffs' claims were time-barred; that Plaintiffs had not acted

diligently in investigating and/or pursuing their claims; and that

Plaintiffs had not presented legally sufficient evidence to

establish their claims. After both Rule 50 arguments, the court

advised Defendants that their Rule 50 motions would be held in

abeyance. The case was submitted to the jury. Because Dr. Rosado

- 6 - had raised a defense of statute of limitations, the instructions

for the jury included an instruction on the statute of limitations

for malpractice. On March 15, 2019, the jury returned a verdict

form where it determined that the case was not time barred, finding

that Plaintiffs proved by a preponderance of the evidence that

they exercised due diligence to acquire the knowledge necessary to

their claim and nevertheless did not obtain the relevant knowledge

until at least October 19, 2015. On that form, the jury also

returned a verdict against Dr. Rosado on Plaintiffs' claim of

medical malpractice, finding total compensatory damages in the sum

of $250,000. Judgment was entered accordingly. On April 24, 2019,

seeking to set aside the verdict, Defendants filed a Motion for

Judgment as a Matter of Law, or in the alternative for a new trial

or remittitur, which Plaintiffs opposed. In an Opinion and Order,

the district court granted Defendants' motion on August 20, 2019,

and set aside the jury's verdict, concluding that a reasonable

jury could not have found that the claim against Dr. Rosado was

timely filed. This rendered Defendants' alternative motion moot.

Judgment was entered dismissing the case with prejudice.

- 7 - Plaintiffs timely appealed on September 10, 2019.

II.

The Puerto Rico statute of limitations for medical

malpractice is one year.3 Villarini-Garcia v. Hosp. Del Maestro,

Inc.,

(1st Cir. 1993) (quoting

(1955)). The statutory period begins to run once the

plaintiff "possesses, or with due diligence would possess,

information sufficient to permit suit."

For accrual purposes,

that information includes not only (1) the fact of the plaintiff's

injury, but also (2) knowledge of "the author of the injury."4

Colón Prieto v. Géigel,

, 330 (1984)

(quoting I. A. Borrell y Soler, Derecho Civil Español 500 (Bosch

ed., 1955)). We have interpreted this latter requirement to extend

beyond "an awareness of some ill effects resulting from an

operation by a particular doctor." Galarza v. Zagury,

The parties agree that the case is before us under diversity jurisdiction, and thus Puerto Rico substantive law applies. That is correct. Sitting in diversity, the court must apply the "[Commonwealth’s] substantive law and federal rules for procedural matters." Alejandro-Ortiz v. P.R. Elec. Power Auth.,

(1st Cir. 2014). Because in Puerto Rico, the statute of limitations is not a procedural matter but rather an issue of substantive law, see Vera v. Dr. Bravo,

, __ P.R. Offic. Trans. __, __ (2004), Commonwealth law applies. 4 The verdict form below required the jury to find by a preponderance of the evidence whether Plaintiffs had the necessary knowledge to file suit at any time before October 19, 2015, or whether they could have had the necessary knowledge before that date if they exercised proper diligence.

- 8 - 20, 24 (1st Cir. 1984). Rather, a putative plaintiff must have

knowledge that "the injury could be considered a tort rather than

an expected side effect." Espada v. Lugo,

(1st Cir.

2002). "If a plaintiff is not aware of some level of reasonable

likelihood of legal liability on the part of the person or entity

that caused the injury, the statute of limitation will be tolled."

(quoting Rodriguez–Suris v. Montesinos,

, 13–14 (1st

Cir. 1997))

Under Puerto Rico law, either actual knowledge (where a

claimant is aware of the relevant facts underlying her potential

claim) or constructive knowledge, often referred to as "deemed

knowledge," (where she would have been aware of such facts, had

she engaged in due diligence) can trigger the statute of

limitations. Rodriguez-Suris,

.5

In determining a plaintiff's knowledge, the relevant

inquiry is whether a putative plaintiff knew or with due diligence

would have known "the facts that gave rise to the claim, not their

full legal implications." Villarini-Garcia,

(citing

Osborn v. United States,

(8th Cir. 1990)). Where

5An exception, not applicable in this case, exists where "a diligent plaintiff reasonably relies upon representations made by a tortfeasor that her symptoms are not the result of a negligent or otherwise tortious act," which permits such a plaintiff to toll the limitation period regardless of her knowledge of the underlying injury and its cause. Rodriguez-Suris, 123 F.3d at 16–17 (citing Colón Prieto, 15 P.R. Offic. Trans. at 329–30; Villarini-Garcia, 8 F.3d at 85–86).

- 9 - a plaintiff's ignorance of a potential cause of action is caused

only by her failure to timely consult an attorney, the statute of

limitations is not tolled. Aldahonda-Rivera v. Parke Davis & Co.,

, 593–94 (1st Cir. 1989). Similarly, where a plaintiff

is aware of a potentially tortious injury but makes no effort to

ascertain its source, she is not excused in delaying a potential

claim. Id.; Espada,

. Rather, "[o]nce a plaintiff

is made aware of facts sufficient to put her on notice that she

has a potential tort claim, she must pursue that claim with

reasonable diligence, or risk being held to have relinquished her

right to pursue it later, after the limitation period has run."

Rodriguez-Suris,

(citing Villarini-Garcia,

). As we have previously noted, the requirement that actual

or constructive knowledge trigger the statutory period "is

designed to accommodate a plaintiff's interests but not to make

them trump all others." Villarini-Garcia,

.

Accordingly, "there is nothing unfair in a policy that insists

that the plaintiff promptly assert her rights" where she knew or

with due diligence would have known the relevant facts more than

a year before bringing her claim.

(citing Aldahonda-Rivera,

).

Where, as here, an action was instituted more than one

year after the alleged tortious harm, the plaintiff bears the

burden of showing her claim was timely filed. Torres v. E.I.

- 10 - DuPont De Nemours & Co.,

(1st Cir. 2000). Where

timeliness hinges on the presence or absence of due diligence, and

constructive rather than actual knowledge, it raises "a normative

question of how much diligence should be expected of a reasonable

lay person." Villarini-Garcia,

. Accordingly, "the

question [of] whether the plaintiff has exercised reasonable

diligence is typically given to the jury, 'even where no raw facts

are in dispute,' because 'the issues of due diligence and adequate

knowledge are still ones for the jury so long as the outcome is

within the range where reasonable men and women can differ.'"

Espada,

(quoting Villarini–Garcia,

).

Such a question may only be withdrawn from the jury where a

reasonable jury could not, given the evidence, "find that the

plaintiff lacked knowledge despite due diligence." Villarini-

Garcia,

.

III.

We review the grant of judgment as a matter of law de

novo. Grande v. St. Paul Fire & Marine Ins. Co.,

(1st Cir. 2006). Thus, we consider on appeal whether the

evidence before the jury "could lead a reasonable person to only

one conclusion" – namely, that Plaintiffs had either actual or

constructive knowledge of a potential claim prior to October 19,

2015. Acevedo-Diaz v. Aponte,

(1st Cir. 1993)

(quoting Hiraldo-Cancel v. Aponte,

, 12 n.2 (1st Cir.

- 11 - 1991)). To affirm the district court, we must therefore conclude

that no reasonable jury could find that Plaintiffs (1) exercised

due diligence to acquire the knowledge needed to sue and (2)

nevertheless did not obtain that knowledge until sometime after

one year prior to filing suit.

Because Plaintiffs filed suit on October 19, 2016, the

timeliness of that action depends on a date of accrual no earlier

than October 19, 2015. Plaintiffs contend that the jury reasonably

determined that the statutory period had not expired and posit

accrual upon either their request that Dr. Refai review Meléndez's

records in November 2015, or their receipt of his expert report on

September 21, 2016. Plaintiffs argue that it was not unreasonable

for the jury to conclude that Meléndez and Ramos acted with

reasonable diligence in focusing initially on Meléndez's

rehabilitation, and only upon the completion of that

rehabilitation requesting Dr. Refai's assistance in the review of

Meléndez's medical records. In support of the jury's finding,

Plaintiffs note that they did not initially suspect any malpractice

in Dr. Rosado's treatment of Meléndez, that they only requested

Meléndez's medical records from Dr. Rosado to assist in her ongoing

treatment, and that they discussed the particulars of Meléndez's

- 12 - earlier surgeries with Dr. Refai even before requesting that he

review her medical records in November of 2015.

Conversely, Defendants argue that Meléndez and Ramos

were aware of facts sufficient to put them on notice of a potential

claim prior to October 19, 2015, and that they failed to pursue

that claim with reasonable diligence. Defendants specifically

identify three potential dates by which Plaintiffs had knowledge

of both Meléndez's injury and the author of that injury: (1) March

24, 2014, the date of Meléndez's second surgery; (2) June 2014, on

whatever date Plaintiffs, Herminio and Meléndez's husband

collectively determined that Meléndez should seek treatment in

Georgia; or (3) August 22, 2014, the date on which Plaintiffs

received Meléndez's medical records from Dr. Rosado. Defendants

further allege that there is no evidence whatsoever of any

affirmative diligence undertaken by Plaintiffs in the fifteen

months between their receipt of Meléndez's medical records, in

August 2014, and their request that Dr. Refai review those medical

records in November 2015.

These arguments derive from much of the same evidence

but require analysis through the distinct lenses of actual and

constructive knowledge. Accordingly, we first consider

Defendants' contention that Plaintiffs' knowledge of the

information necessary for suit (in either March, June, or August

of 2014) precludes a reasonable jury from finding that their claim

- 13 - was timely filed. We then consider Plaintiffs' argument that the

question of constructive or actual knowledge should properly be

reserved to the jury, and Defendants' counterargument that

Plaintiffs' lack of due diligence between August of 2014 and

November of 2015 also precludes a reasonable jury from finding

their claim was timely filed. We conclude that a reasonable jury

could find that Plaintiffs exercised due diligence in

investigating their potential claim and nevertheless did not have

"sufficient information to permit suit," Villarini-Garcia,

, in advance of the one-year statutory period.

To substantiate their claim that Plaintiffs were

actually aware of facts sufficient to put them on notice of their

claim against Dr. Rosado after Meléndez's second surgery,

Defendants rely primarily on testimony that Meléndez was in pain

following the surgery. In particular, they point to Meléndez's

own testimony that her life "changed entirely" during the period

following the second surgery. They note that Meléndez was unable

to care for herself or perform her daily activities after the

second surgery and conclude that Plaintiffs were therefore aware

of the "outward physical manifestations" of Dr. Rosado's

negligence.

We find this argument uncompelling. There is no

indication in Meléndez's testimony that the change in her quality

of life was sudden or otherwise suspicious. As already noted,

- 14 - Meléndez was bedridden even before her second surgery.

Furthermore, when describing her pain following the second surgery

Meléndez specifically highlighted the intensive care she required

following her discharge from the hospital in May of 2014, a month

and a half after her second surgery. Under the circumstances, a

reasonable person in Meléndez's situation could have believed that

her increasingly unmanageable pain was simply a continuation of

the decline which she was already suffering, and which prompted

her to seek medical assistance from Dr. Rosado in the first place.

We conclude that a reasonable jury could find that Meléndez had no

knowledge of her potential claim insofar as she was aware of

neither an additional injury following her surgery, nor its

potentially tortious origin.

In the alternative, Defendants suggest that Plaintiffs

were aware of facts sufficient to put them on notice of their claim

upon Meléndez's departure from Dr. Rosado's care in June of 2014.

To substantiate their argument, Defendants highlight Herminio's

testimony before the court, including his statements that

following Meléndez's second surgery she was bedridden and in severe

pain, and that her family no longer trusted Dr. Rosado. Defendants

also point to Ramos's testimony that he initially met with Dr.

Rosado because Meléndez's condition was worsening, and because her

pain had increased rather than decreased after her second surgery.

These statements and others are presented as evidence that

- 15 - Plaintiffs knew of Meléndez's injury, knew that it was a result of

her surgeries at the hands of Dr. Rosado, and knew that the injury

could be considered tortious rather than a mere side effect.

We again find Defendants' argument uncompelling. In

light of our prior decisions, the statements made by Plaintiffs

and Herminio do not preclude a reasonable jury from finding that

Plaintiffs had no knowledge of their claim as of June 2014. Not

only could Plaintiffs reasonably have concluded that Meléndez's

ongoing pain was a result of her initial, pre-surgery spinal

problems, they also had no basis for believing any further injury

(if identified) was tortious in nature. It is well-established

that a plaintiff may "reasonably rel[y] upon representations made

by a tortfeasor that her symptoms are not the result of a negligent

or otherwise tortious act," even where she is aware of her

underlying injury and its cause. Rodriguez-Suris, 123 F.3d at 16–

17 (first citing Colón Prieto, 15 P.R. Offic. Trans. at 329–30;

and then citing Villarini-Garcia, 8 F.3d at 85–86). As Plaintiffs

note, Dr. Rosado warned Meléndez in advance of her operations that

side effects including severe pain, re-compression of the spine,

or even paralysis could all result from surgical intervention.

Indeed, Ramos testified to being apprehensive about the outcome of

the surgeries even before Meléndez underwent her first operation

simply because he was aware that spinal surgery is a very delicate

process. While warnings prior to a risky surgery do not rise to

- 16 - the level of assurances that an operation was non-negligently

performed, they nevertheless provide a basis for a reasonable

person to assume that, insofar as an identifiable injury results

from surgery, that injury is not potentially tortious in origin.

Furthermore, Plaintiffs provide a reasonable alternative

explanation for their loss of trust in Dr. Rosado. They argue

that a jury could reasonably infer that Meléndez and Ramos lost

trust in Dr. Rosado because he failed to visit Meléndez during her

post-surgery hospitalization, or because he confused her with

another patient when she visited his office for a follow up

appointment. We agree. A patient who decides that her current

doctor is unsuitable, untrustworthy, or simply unlikeable may

nevertheless not suspect him of malpractice. Similarly, a patient

warned of the many risks of a medical procedure and suffering only

an escalation of her original condition following the procedure,

may reasonably not suspect that the procedure itself caused some

tortious harm. We therefore conclude that a reasonable jury could

find that Plaintiffs had no knowledge of their potential claim

when they withdrew Meléndez from Dr. Rosado's care in June of 2014.

Nor do we accept Defendants' argument that Plaintiffs

had knowledge of their potential claim by the time they received

Meléndez's records from Dr. Rosado on August 22, 2014. Defendants

support this argument by reference to the testimony already

considered above, and to statements by Plaintiffs' counsel alone

- 17 - at sidebar that trial testimony on Plaintiffs' efforts to obtain

Meléndez's medical records was relevant to the statute of

limitations. The statements of counsel at sidebar are not evidence

before the jury and are therefore not relevant to the disposition

of a motion for judgment as a matter of law. See Fed. R. Civ. P.

50(a)(1); see also, e.g., United States v. Mejia-Lozano,

(1st Cir. 1987) (discussing the sufficiency of jury

instructions regarding statements of counsel). Defendants

therefore suggest no basis for their proposed August 22, 2014,

date that has not already been considered and rejected with respect

to the March and June dates. Accordingly, we determine that a

reasonable jury could have concluded that Plaintiffs lacked the

requisite knowledge of Meléndez's injury, its author, and its

potentially tortious nature as of their acquisition of Meléndez's

medical records.

We move now to the question of whether Plaintiffs had

constructive knowledge of their potential claim more than one year

before filing suit. To determine that they had such knowledge as

a matter of law, we must examine whether a reasonable jury could

find that Plaintiffs exercised due diligence and yet were not aware

(1) of Meléndez's injury, (2) that the injury was caused by Dr.

Rosado, and (3) that the injury was potentially tortious. See

Colón Prieto, 15 P.R. Offic. Trans. at 330–31; Espada,

. We begin by considering, in light of the circumstances and

- 18 - arguments recounted above, whether Plaintiffs could reasonably be

found to have exercised due diligence prior to October 19, 2015.

The diligence required to preclude a finding that a

plaintiff's claim is time-barred depends on the plaintiff's

specific situation. In Espada, the plaintiff underwent a

mastectomy to treat her breast cancer, including the removal of

numerous lymph nodes, and subsequently suffered persistent

swelling in her arm. 312 F.3d at 2—3. She was reassured by her

physician that the swelling was normal, despite receiving no

warning prior to the surgery that it was a potential side effect.

. The plaintiff sought treatment for her swelling

(diagnosed as lymphedema) from other physicians and ultimately

learned, two years after her surgery, that it was caused by the

removal of her lymph nodes.

. While the plaintiff was

aware "more than one year before the suit was filed that a serious

and persistent affliction had followed her surgery and that [her

doctor] was responsible for the surgery," we determined that her

claim was not time-barred as a matter of law.

We indicated

specifically that the plaintiff (1) was initially entitled to rely

on her doctor's assessment that the operation was properly

performed, and (2) had no reason to suspect malpractice until she

was alerted of the possibility by a medical professional, given

- 19 - that lymphedema could result even from non-negligent surgeries.

In Villarini-Garcia, the plaintiff underwent a mole

removal surgery on her back during which her physician, without

her consent, removed a portion of her muscle tissue.

. She was reassured that the removal was normal and that she

would suffer "no lasting harm," but nevertheless developed

debilitating arm pain which continued in the years following her

surgery.

Three years after her surgery, she consulted a

number of doctors about her persistent pain, before ultimately

receiving a diagnosis suggesting malpractice and filing suit.

. We determined that her negligence claim was not time barred

as a matter of law because (1) she was initially entitled to rely

on her doctor's assurances that she would suffer no lasting harm,

and (2) she could reasonably have lacked knowledge of her

negligence claim until she was informed of its existence by a

medical professional, despite failing specifically to investigate

whether the mole removal surgery could be the source of her pain.

.

Plaintiffs argue, and we agree, that the instant case is

largely comparable to Espada and Villarini-Garcia. On their face,

the injuries suffered by Meléndez were if anything less apparent

than those suffered by the plaintiffs in Espada and Villarini-

Garcia. Neither surgery resulted in an abrupt or identifiable

- 20 - additional impairment, such as a swollen arm following a

mastectomy, or severe arm pain resulting from the removal of a

mole on the back. Espada,

; Villarini-Garcia,

. Rather, they were of like kind and manifestation to

Meléndez's original condition. While Meléndez did experience an

increase in her back pain following the surgeries performed by Dr.

Rosado, she had been experiencing increasing pain for some time,

so much so that she had within the prior year found herself unable

to work, sit, or even stand for extended periods. Indeed, Meléndez

was initially able to continue managing her pain with medication

following the first surgery, and only after some time had passed

did her pain worsen to the point where she was confined to her

bed. Similarly, she was bedridden both before and after her second

surgery. Finally, while Meléndez did not receive direct assurances

from Dr. Rosado that her continuing pain was normal or nothing to

worry about, as did the Espada and Villarini-Garcia plaintiffs,

she nevertheless was clearly warned that the surgeries could be

unsuccessful or potentially result in additional pain even without

any negligence by Dr. Rosado.

Furthermore, the diligence undertaken by Meléndez is

comparable to that pursued by the plaintiffs in Espada and

Villarini-Garcia. We determined in Espada that "[i]t would surely

be permissible for a jury to find that [the plaintiff] was diligent

in her investigation of the cause of her lymphedema by

- 21 - communicating with the National Lymphedema Network and by meeting

with other doctors in her attempt to discover the cause of her

lymphedema." 312 F.3d at 4–5. In Villarini-Garcia, we noted that

while the plaintiff "might be faulted for not specifically asking

the doctors" she saw following her surgery "whether the operation

had caused the new pain, at least some of these specialists were

aware of the operation but none of the varying diagnoses she

received pointed to the operation as a possible cause."

. We therefore concluded that "a reasonable factfinder . . .

could find that [the plaintiff] did exercise due diligence" as to

her potential claim, but "the final ingredients for the

[negligence] claim did not fall into place until after the pain

persisted and [a new physician] gave his opinion."

Similarly,

Meléndez consulted multiple physicians regarding her persistent

back pain after her first two surgeries. Despite knowing of her

prior surgeries, even Dr. Refai did not suggest that Meléndez had

a potential claim for malpractice until he fully reviewed her

translated medical records.

We conclude that a reasonable jury could find that

Plaintiffs had neither actual nor constructive knowledge at any

time prior to her third surgery at the hands of Dr. Refai. First,

the basis for actual knowledge is not notably different between

Plaintiffs' acquisition of Meléndez's records in August of 2014

and their pre-surgery consultations with Dr. Refai in December of

- 22 - that year. Meléndez remained bedridden from before her second

surgery until her third surgery, and her diagnosis by Dr. Refai

was the same diagnosis of spinal compression she had initially

received from Dr. Rosado. Indeed, the treatment suggested by Dr.

Refai (a third surgery) was also the treatment suggested by Dr.

Rosado. Our analysis of the facts prior to the third surgery

therefore mirrors our analysis with respect to Defendants'

suggested June and August dates, and we conclude that a reasonable

jury could find that Plaintiffs had no actual knowledge of their

potential claim prior to Meléndez's third surgery.

Second, there is no basis for concluding that a

reasonable jury could not find Plaintiffs lacked constructive

knowledge immediately prior to Meléndez's third surgery. Our

decisions in Espada and Villarini-Garcia demonstrate that even

where an injury is readily identifiable, and the author of the

injury is readily known, a plaintiff can be found to exercise

adequate diligence where she diligently seeks treatment for her

injury from additional physicians. Meléndez did exactly that.

While Meléndez was not directly reassured by Dr. Rosado that her

first two surgeries were non-negligent, she nevertheless had

reason to suspect, like the Espada plaintiff, that injury could

result even from non-negligently performed surgery. See

. Indeed, we have previously noted that a putative plaintiff

must have knowledge that "the injury could be considered a tort"

- 23 - and not merely "an expected side effect."

. That it is

possible to believe that Meléndez could have done more to

investigate her injury does not preclude a reasonable jury from

finding that she was nevertheless reasonably diligent under the

law. We therefore conclude that a reasonable jury could find that

Plaintiffs exercised due diligence but were nevertheless not aware

of the facts necessary to establish a claim at the time of

Meléndez's third surgery.

The district court found that even if Plaintiffs had no

actual knowledge of their potential claim as of the proposed dates,

they at least had constructive knowledge following Meléndez's

successful third surgery. Indeed, the district court concluded

that Meléndez's recovery following the third surgery would lead a

reasonable person to question the first two surgeries and seek

answers. Rather than seeking answers, however, the district court

found – and Defendants argue on appeal – that Plaintiffs engaged

in no due diligence prior to their request that Dr. Refai review

Meléndez's medical records in November of 2015, and therefore

failed to satisfy their burden with respect to constructive

knowledge.

While plausible, this line of reasoning is not so

persuasive that a reasonable jury could not disagree. First, as

Plaintiffs point out, given the potential complications of spinal

decompression surgery the jury could have reasonably concluded

- 24 - that Meléndez's improvement did not raise suspicion that the prior

surgeries were unsuccessful due to medical malpractice. Just as

a jury could find Plaintiffs acted reasonably in assuming

Meléndez's negative surgical outcomes were expected and non-

negligent, there is no clear reason why a jury could not find

similar grounds for Plaintiffs' acceptance of positive surgical

outcomes. There is no evidence that either of Meléndez's surgeons

indicated that the unsuccessful first two surgeries were in any

way suspicious or out of the ordinary. Rather, Dr. Refai even

informed Meléndez that there would be significant risks to a third

surgery, thus providing a further ground for Plaintiffs to conclude

that spinal surgeries are simply often unsuccessful. Second,

although Meléndez "did remarkably well" after her third surgery,

it is not the case that the outcome was so radically different as

to preclude a finding that they lacked constructive knowledge.

After her first surgery, for example, Meléndez felt "okay" and

could manage her pain with medication as she had done previously.

Likewise, after her successful third surgery, it still took

Meléndez six weeks to be able to walk three quarters of a mile.

While Meléndez could have questioned the first two surgeries in

light of the third, a plaintiff's failure to act optimally does

not necessarily render her behavior unreasonable. See Villarini-

Garcia,

(noting that plaintiff "might be faulted" for

failing to inquire about the relationship between her earlier

- 25 - surgery and current injury, but nevertheless declining to grant

judgment as a matter of law on the question of timeliness). A

jury could nevertheless conclude that a reasonable person would

withhold judgment as to the efficacy of the third surgery until

some time had passed and Meléndez was farther along the road to

full recovery.

Finally, although Defendants allege that Plaintiffs

engaged in no medical consultations or similar due diligence even

in the months following her third surgery, this is not entirely

true. Rather, Meléndez met with Dr. Refai "at regular intervals"

following the third surgery to discuss her recovery. Once it

became apparent that Meléndez's third surgery was indeed

successful, Plaintiffs proactively sought Dr. Refai's professional

opinion regarding the standard of care followed by Dr. Rosado in

Meléndez's first and second surgeries. Although eleven months

elapsed between Meléndez's third surgery and Plaintiffs' request

that Dr. Refai review her medical records, those eleven months

involved both a lengthy recovery process (during which it took at

least a month and a half for Meléndez to even walk a reasonable

distance) and consistent meetings with Dr. Refai about the very

condition that this action addresses. Given the precedent of

Villarini-Garcia, where a plaintiff's meetings with various

specialists for treatment of her arm pain over a four-year period

constituted adequate due diligence even where she knew that she

- 26 - began suffering new and unusual pain following a surgical

intervention, it is not clear that Meléndez's ongoing pursuit of

treatment for her own back pain could not constitute due diligence

under the relevant law.

.

Nor is the fact that there are plausible arguments

against Plaintiffs' exercise of due diligence dispositive. It is

not the task of Plaintiffs to prove beyond a shadow of a doubt

that their diligence was adequate and that they therefore lacked

the constructive knowledge that would time-bar their complaint.

Rather, Plaintiffs must only show that the question of their

knowledge is one on which "reasonable men and women can differ."

. If a reasonable jury could have found Plaintiffs' claim

was timely filed, we must reverse the district court's issuance of

judgment as a matter of law. Astro-Med, Inc. v. Nihon Kohden Am.,

Inc.,

(1st Cir. 2009). Under the relevant case

law, a reasonable jury could indeed have found that Plaintiffs

exercised adequate diligence to preclude a finding of constructive

knowledge as of Meléndez's final post-operative appointment with

Dr. Refai in November of 2015.

CONCLUSION

Let us be perfectly clear. We do not hold that the

record in this case compels a finding that Plaintiffs complied

with the statute of limitations. We recognize that there is enough

evidence on both sides of the limitations issue such that the

- 27 - district court quite properly determined in response to

Defendants' initial Rule 50 motions that the issue should, in the

first instance, be left to the jury. We conclude that a reasonable

jury could have found that, despite exercising due diligence to

acquire the knowledge needed to sue, Plaintiffs nevertheless did

not obtain that knowledge until sometime after one year prior to

filing suit. Accordingly, the dismissal of the case is reversed,

the judgment for Defendants is vacated, and the case is remanded

to the district court for reinstatement of the verdict,

consideration of defendants' alternative motion for a new trial or

remittitur, and such other proceedings as may be appropriate,

consistent with this opinion. Costs are taxed in favor of

plaintiffs-appellants.

So ordered.

- 28 -