Opinion
Civil No. 99-1056 (JAG)
July 1, 2002
Raul O. Hernandez-Gonzalez, San Juan, PR, Raul S. Mariani-Franco, San Juan, PR for plaintiffs.
Miguel G. Laffitte, Delgado Fernandez, San Juan, PR, Jeannette M. Lopez, Pinto-Lugo, Oliveras Ortiz, PS, San Juan, PR, Jamie E. Morales-Morales, Morales-Morales Law Offices, San Juan, PR, Luis F. Montijo, San Juan, PR for defendants.
OPINION AND ORDER
Plaintiff Awilda Serrano-Strubbe (hereinafter "Serrano-Strubbe"), filed this medical malpractice claim against several codefendants on January 19, 1999. (Docket No. 1.) The jurisdiction of the Court is premised on the parties's diversity of citizenship. The co-defendants, through various dispositive motions, have raised the issue whether Serrano-Strubbe's causes of action are barred by the one-year statute of limitations period.
The last amendment to the Complaint was filed on April 13, 2000 (Docket No. 48)
Serrano-Strubbe brings forth two claims arising out of the same operative facts, i.e., the medical interventions leading to the death of her mother. She brings a personal claim as well as an inherited claim as her mother's sole legal representative.
United States Magistrate Judge Aida Delgado issued a Report and Recommendation on March 27, 2002 (Docket No. 90), specifically addressing the issue of whether Serrano-Strubbe's claims were time barred. In her report the Magistrate Judge recommended that the Court DENY the motion to dismiss and/or summary judgment filed by co-defendant Doctors' Community Hospital (Docket No. 33). She further recommended that the Court DENY the motion to dismiss filed by co-defendant Juan hernández-Plana (Docket No. 34), and the motion for entry of judgment filed by co-defendant Doctors' Community Hospital. (Docket No. 39). In addition, the Magistrate Judge recommended that co-defendant Wilmer Rodriguez's motion for summary judgment (Docket No. 70) be DENIED.
Co-defendants Rufino Montañez-Fancón and PHICO Insurance Co. joined the motion to dismiss filed by Doctors' Community Hospital. (See Docket No. 53.)
Pending before this Court are several objections to the Magistrate Judge's Report and Recommendation. Specifically, co-defendant Wilmer Rodríguez's objections (Docket Nos. 91 and 96); co-defendant Doctors Community Hospital's objections (Docket No. 93); and plaintiff Serrano-Strubbe's objections (Docket No. 92). After reviewing the objections, the Court ADOPTS the Report and Recommendation (Docket No. 90) in its entirety, and DENIES WITHOUT PREJUDICE Dockets Nos. 33, 34, 39 and 70.
STANDARD OF REVIEW
A district court may, on its own motion, refer a pending matter to United States Magistrate Judge for a Report and Recommendation. 28 U.S.C. § 636 (b)(1)(B); Fed.R.Civ.P. 72(b); Local Rule 503. The losing party may contest the Report and Recommendation by filing written objections within ten days of being served with a copy of the Report and Recommendation. The Court must then make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. The Court may accept, reject or modify, in whole or in part, the magistrate's recommendation. "Failure to raise objections to the Report and Recommendation waives that party's right to review in the district court and those claims not preserved by such objections are waived on appeal." Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir. 1992)
DISCUSSION
Co-defendants Juan hernández-Plana, Rufino Montañez-Fancón, and PHICO Insurance Co. did not object to the Magistrate Judge's report. Therefore, the well-reasoned recommendations made by Magistrate Judge Delgado will be adopted in their entirety as to these three co-defendants.
I. Objections by the Doctor's Community Hospital
In its opposition to the Magistrate's report and recommendation (Docket No. 93), co-defendant Doctors' Community Hospital (hereinafter "the Hospital") fails to raise any material issues not adequately addressed by the Magistrate Judge in her report. Once again, the Hospital argues that the letter of January 22, 1998 does not toll the statute of limitations because it was sent on behalf of the conjugal partnership, rather than by Serrano-Strubbe independently. (See Docket No. 93, pgs. 7-8). The Magistrate Judge specifically addressed this issue in her report (See Docket No. 90, pg. 18). A look at the record reveals that the Magistrate Judge's interpretation of the January 22, 1998 letter is correct. The letter contains clear language indicating a possible claim by both Jerry Monserrate and Serrano-Strubbe, and makes no mention as to the conjugal partnership between them. (Docket No. 47. Exhibit 7.) In addition, co-defendants have failed to cite a single authority, and the Court has found none, indicating that the fact that Mrs. Awilda Serrano is married to Jerry Monserrate, and did in fact mail this letter on behalf of both her husband and herself, would destroy the letter's tolling effect as Serrano-Strubbe's inherited claim.
Co-defendant the Hospital disagrees with the Magistrate Judge's finding that there are genuine issues of material fact as to the date of accrual of Serrano-Stubbe's personal claim. (i.e., the date in which she knew or should have known that she had a personal claim against the co-defendants). From a procedural standpoint, the Hospital's objections are misguided. First, the Hospital filed a motion to dismiss (Docket No. 33), which the Magistrate Judge analyzed as a summary judgment motion. The Hospital never submitted a proper 311.12 statement with its motion as required by the local rule, however. Therefore, the Magistrate Judge correctly relied on the facts contained in the plaintiff's 311.12 statement and viewed them in the light most favorable to her, as required by the summary judgment standard. After an extensive analysis of the facts, the Magistrate Judge concluded that there was an issue of material fact as to the date in which Serrano-Stubbe's personal claim accrued. In fact, the Magistrate Judge clearly stated that this might be an issue that the parties probably would revisit at trial.
The Hospital did refer to its motion as one to dismiss and/or for summary judgment.
II. Objections by Wilmer Rodriguez
Co-defendant Wilmer Rodriguez also filed objections to the Magistrate Judge's report. (Docket No. 96). In his efforts to assert that the claims against him are time-barred, Rodríguez argues that the Magistrate Judge erred in its application of the solidarity doctrine. This argument will not detain the Court for long. As the Magistrate Judge correctly stated, the solidarity doctrine allows for the timely inclusion of a solidary tortfeasor, such as co-defendant Rodríguez. See Arroyo v. Hospital La Concepción, 130 D.P.R. 596, official translation at p. 9 (1992) (See also, Tokyo Marine and Fire Insurance Co., L.T.D. v. Perez CIA, de Puerto Rico, Inc., 142 F.3d 1, 5-8 (1st Cir. 1998); In re Rio Piedras Explosion Litigation, 106 F. Supp.2d 198 (D.P.R. 2000) (discussing the solidarity doctrine of joint tortfeasors) Therefore, as long as the original claim is considered to be timely, the subsequent addition of an alleged tortfeasor, such as Rodríguez, is not time barred.
As the Magistrate Judge concluded, there are genuine issues of material fact as to whether or not plaintiff's claim are timely.
III. Plaintiff Serrano Strubbe's objections
Plaintiff also filed objections (Docket No. 92) to the Magistrate Judge's report. In particular, plaintiff finds fault with the fact that the Magistrate Judge rejected plaintiff's proposed prescription accrual date of April 1999. (See Docket No. 90, pgs. 20-24). This objection is of little consequence, given that, as the Magistrate Judge stated, an earlier accrual date would suffice to establish the timeliness of the complaint.
This is the date in which the plaintiff allegedly learned the identity of all the joint tortfeasors.
A careful look at the record suggests, as the Magistrate Judge correctly concluded, that the plaintiff should have known sometime prior to April 1999 that she had a personal claim against the co-defendants, since there was nothing in the record suggesting that a "diligent effort" was made to obtain information that was readily available to plaintiff prior to said date. It should be noted, that if the Court were to allow plaintiff's theory pertaining to the accrual date of April of 1999, the original Complaint (filed on January 19, 1999) would have been premature.
CONCLUSION
In view of the aforementioned, this Court ADOPTS the Report and Recommendation (Docket No. 90) in its entirety, and DENIES WITHOUT PREJUDICE Dockets Nos. 33, 34, 39 and 70.
IT IS SO ORDERED.