Opinion
CIV. No. 03-1451(PG).
April 14, 2004
OPINION AND ORDER
Plaintiffs, Juanita Marrero Negrón ("Marrero") and Ruth E. Cruz Marrero, filed the present action claiming diversity jurisdiction under 28 U.S.C. § 1332(a)(1). (See Docket No. 1.)
Before the Court is defendant, Dr. Francisco F. Rafucci's ("Dr. Rafucci") "Motion to Dismiss" (Docket No. 9.) Also before this Court is plaintiffs', "Motion in Opposition to Motion to Dismiss". (Docket No. 15.)
Upon reviewing the parties' motions, the Court finds that plaintiffs filed their complaint within the prescribed period. Therefore, the Court DENIES defendant's motion to dismiss.
DISCUSSION
I. Factual Background
On May 15, 1999, Marrero felt pain in the right lower quadrant of her abdomen which eventually led to her visit to the emergency room of the Auxilio Mutuo Hospital on May 17, 1999. Marrero's treating physician consulted Dr. Rafucci, a general surgeon, who treated her the afternoon of the seventeenth. Dr. Rafucci diagnosed Marrero with an inguinal hernia and posted her for surgery the next day. On May 20, 1999, Marrero was discharged from Auxilio Mutuo. Subsequently, Marrero experienced pain in the wound area which prompted her to visit her primary physician, Dr. Victor Gordo, who prescribed antibiotics.
Marrero then visited Dr. Rafucci's office when the pain increased. After an examination, Dr. Rafucci told Marrero there was another hernia. On the advice of Dr. Gordo, Marrero visited Dr. José Silva Ayala, another surgeon for a second opinion. Dr. Silva referred Marrero to an anesthesiologist specialized in pain management who told her there appeared to be a problem with the inguinal nerve. Marrero went once again to visit her primary physician, Dr. Gordo who recommended another visit to Dr. Silva.
On October 6, 1999, Dr. Silva performed exploratory surgery on Marrero in which he found "an entrapment of the nerve at the right groin". (Docket No. 1 at 5.) Dr. Silva had to remove portions of the inguinal nerve and repair some areas in the femoral nerve. He disclosed to Marrero's family she would have some deficit in that area. On October 8, 1999, Marrero was discharged from the hospital.
On May 16, 2000, plaintiffs filed a medical malpractice claim in the Puerto Rico Superior Court against Auxilio Mutuo Hospital, John Doe, Richard Doe and Linda Poe, ("first complaint") alleging the same facts as the ones contained in the following two complaints filed. This first complaint was voluntarily dismissed without prejudice on November 2, 2000. On October 19, 2001, plaintiffs filed a second medical malpractice claim ("second complaint") before this District Court against Auxilio Mutuo Hospital and Dr. Francisco Rafucci. This second complaint was also dismissed without prejudice on May 9, 2002. On April 28, 2003, plaintiffs filed the present action against Auxilio Mutuo Hospital, Dr. Francisco Rafucci, his wife, their conjugal partnership, and others, ("third complaint") alleging the same facts as in the previous complaints.
Co-defendant, Dr. Rafucci filed a motion to dismiss on July 17, 2003, alleging plaintiffs' third complaint is time-barred. (Docket No. 9.) He argues his last intervention on Marrero was on June 30, 1999 and because the third complaint was filed on April 28, 2003, almost four years after the intervention, the statute of limitations has expired.
II. Standards
A. Motion to Dismiss Standard
Motions to dismiss under Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6) are subject to the same standard of review.See Negrón-Gaztambide v. Hernández Torres, 35 F.3d 25, 27 (1st Cir. 1994). A court should not dismiss a complaint for failure to state a claim or lack of subject-matter jurisdiction unless it is clear that the plaintiff will be unable to prove any set of facts which would entitle him to recovery. See La Chapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508 (1st Cir. 1998); See also Garita Hotel Ltd. Partnership v. Ponce Fed. Bank, 958 F.2d 15, 17 (1st Cir. 1992). A plaintiff, however, may not merely rest on "unsupported conclusions or interpretations of law". Washington Legal Found. v. Massachusetts Bar Found., 993 F.2d 962, 971 (1st Cir. 1993). The court will accept all well-pleaded factual allegations as true, drawing all reasonable inferences in the plaintiff's favor. See Correa-Martínez v. Arrillaga-Beléndez, 903 F.2d 49, 51 (1st Cir. 1990).
When deciding whether to dismiss a complaint for lack of subject-matter jurisdiction the court may consider extrinsic materials and, to the extent of jurisdictional fact-finding, may test the truthfulness of the plaintiff's allegations. See Dynamic Image Techs., Inc. V. United States, 221 F.3d 34, 37-8 (1st Cir. 2000). The court "may consider whatever evidence has been submitted, such as depositions and exhibits submitted. . . ."Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996).
III. Analysis
To determine whether this action is time-barred the Court must first determine when the statute of limitations began running. In diversity tort actions filed in Puerto Rico, state law governs statute of limitation issues inasmuch as they are considered substantive law. See Erie v. Tompkins, 304 U.S. 64, 78, 82 (1938), Daigle v. Maine Medical Center, 14 F.3d 684, 689 (1st Cir. 1994). Pursuant to art. 1802 of the Puerto Rico Civil Code, 31 P.R. Laws Ann. § 5141, obligations arising from fault or negligence have an applicable limitation of one year from the time the aggrieved person had knowledge of the injury. This one year period begins running one day after the date of accrual.See Carrera Rosa v. Alves-Cruz, 127 F.3d 172 (1st Cir. 1997). A plaintiff is considered to have knowledge of an injury when he or she has notice of the injury as well as notice of the person who caused it. Colón-Prieto v. Geigel, 115 D.P.R. 232, 243 (1984). Under Article 1873 of the Puerto Rico Civil Code, there are three ways to toll the limitations period: (1) by filing a complaint, (2) by extrajudicial claim of the creditor, and (3) "by any act of acknowledgment of the debt by the debtor." 31 P.R. Laws Ann. § 5303. If the statute of limitations is tolled the period starts to run a new. See Díaz de Diana v. A.J.A.S., 110 D.P.R. 471, 474 (1980), Durán Cepeda v. Morales-Lebrón, 112 D.P.R. 623, 625-26 (1982).
In the case at bar, Marrero learned of the entrapment of her nerve after she underwent exploratory surgery on October 6, 1999. (Docket No. 1.) Accordingly, the one year period began running on October 7, 1999, expiring on October 7, 2000. Marrero filed the first complaint in state court on May 16, 2000. Thus, this first complaint tolled the statute of limitations. The new one year period began on November 3, 2000, they day after this first complaint was dismissed without prejudice.
The second one year period was also tolled by the second complaint filed on October 19, 2001 before this Court. This second complaint was also dismissed without prejudice on May 9, 2002, and a new one year period began the following day, expiring May 10, 2003. This third one year period was tolled when plaintiffs filed the present case (third complaint) on April 28, 2003. Therefore, inasmuch as plaintiffs properly tolled the statute of limitations with each complaint they filed, this action is not time-barred.
Dr. Rafucci's argument, however, is based solely on the filing date of the second complaint. He conveniently ignores that a first complaint was filed within the time limit. The fact that in the first complaint Dr. Rafucci is named as Dr. John Doe does not alter our conclusion. In the first complaint Marrero alleged the same set of facts against Dr. Rafucci as in the second and third complaints. Specifically, Marrero claimed that the doctor who treated and operated her on May 17, 1999, at Hospital Auxilio Mutuo was solidarily liable to her with Hospital Auxilio Mutuo for the damage she suffered. (See Docket No. 15, Exh. A) Dr. Rafucci was the only doctor who operated Marrerro in Hospital Auxilio Mutuo on the seventeenth. Moreover, Marrero alleges Dr. Rafucci is a joint tortfeasor, and as such, the statue of limitations for the claim against him was tolled by the complaints filed against another joint tortfeasor, Auxilio Mutuo Hospital. Pursuant to Puerto Rico law, joint tortfeasors are solidarily liable and therefore, the interruption of the tolling period against one defendant tolls the period for any defendant who is solidarily liable with the first. See Tokyo Marine Fire Ins. v. Pérez CIA, 142 F.3d 1, 4.
Pursuant to Puerto Rico law, "under article 1802, when the negligent acts of more than one person have adequately caused harm, each such person is a joint tortfeasor who is liable in full to the plaintiff for the harm caused." Tokyo Marine Fire Ins. v. Pérez CIA, 142 F.3d 1, 6.
In sum, Marrero properly tolled the statute of limitations. Hence, this case is not time barred.
CONCLUSION
In view of the foregoing the Court DENIES co-defendant Dr. Rafucci's Motion to Dismiss.