USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-2214
MARTA NIEVES, IN REPRESENTATION AND ON BEHALF OF
HER MINOR SON ANGEL LUIS HERNANDEZ NIEVES,
Plaintiff, Appellant,
v.
UNIVERSITY OF PUERTO RICO, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
___________________
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
____________________
David Efron with whom Law Offices of David Efron was on brief for
___________ __________________________
appellant.
Efren T. Irizarry-Colon with whom Elisa M. Figueroa-Baez was on
_______________________ ______________________
brief for appellees.
____________________
October 18, 1993
____________________
CYR, Circuit Judge. Marta Nieves appeals a district
CYR, Circuit Judge.
______________
court order dismissing the medical malpractice action she brought
in behalf of her minor son Angel Luis Hern ndez Nieves against
Angel Gelp , M.D., and Gonz lez Recio, M.D., whom the district
court found immune from suit pursuant to P.R. Laws Ann. tit. 26,
4105. We affirm.
I
I
BACKGROUND
BACKGROUND
We recite the facts in the light most favorable to
plaintiff. See Goldman, Antonetti, Ferraiuoli, Axtmayer &
___ ______________________________________________
Hertell v. Medfit Int'l, Inc., 982 F.2d 686, 689 (1st Cir. 1993)
_______ ___________________
(summary judgment). In December 1983, Marta Nieves entered the
Federico Trilla Hospital ("the Hospital"), a privately owned and
operated medical facility in Puerto Rico. Appellee Angel Gelp
and Jose Mel ndez, medical residents under the supervision of the
attending physician, Dr. Ailed Gonz lez Recio, undertook the
delivery of Nieves' son Angel. The three physicians were affili-
ated with the University of Puerto Rico Medical School ("UPR").
Later, Angel was diagnosed with serious physical and mental
impairments, allegedly attributable to asphyxiation during
childbirth.
In December 1990, Nieves, by that time a resident of
Florida, brought this diversity action against, inter alia, UPR,
_____ ____
Drs. Gelp and Gonz lez Recio, and their insurers, alleging
2
professional negligence. See P.R. Laws Ann. tit. 31, 5141-
___
5142.1 Defendants answered and moved to dismiss the complaint
pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). UPR, noting
its status as an "arm" of the Commonwealth of Puerto Rico,
asserted its Eleventh Amendment immunity from unconsented suit,
see Perez v. Rodriguez Bou, 575 F.2d 21, 25 (1st Cir. 1978), and
___ _____ _____________
its insusceptibility to federal diversity jurisdiction, see Moor
___ ____
v. County of Alameda, 411 U.S. 693, 717 (1973).
_________________
The two appellees, who claimed to be UPR "employees,"
hence physicians employed by the Commonwealth, relied on P.R.
Laws Ann. tit. 26, 4105 (Supp. 1989) as a basis for dismissal:
No health service professional may be includ-
ed as a defendant in a civil suit for damages
due to malpractice caused in performance of
his profession while said health service
professional acts in compliance with his
duties and functions as an employee of the
Commonwealth of Puerto Rico, its dependen-
cies, instrumentalities and municipalities.
Id. Section 4105, a provision of Act No. 74 of 1976, otherwise
___
known as the Medico-Hospital Professional Liability Insurance Act
(MHPLIA), was enacted to alleviate the severe malpractice insur-
ance crisis facing Puerto Rico. See generally Enr quez P rez v.
___ _________ ______________
Fern ndez, 108 P.R. Dec. 674, 677-80 (1979). The appellee
_________
doctors contend that any patient injured by the professional
negligence of a physician covered by section 4105 has legal
recourse only against the physician's employer, or the Common-
____________________
1The original complaint also named Dr. Fern ndez, the
admitting physician, and Dr. Mel ndez, but Nieves dismissed as to
Fern ndez and failed to serve Mel ndez.
3
wealth, which is immune from compensatory damages liability in
excess of $75,000, see P.R. Laws Ann. tit. 32, 3077(a), and, in
___
any event, not amenable to suit in federal court.2
On January 31, 1992, following eight months of discov-
ery, Nieves filed her opposition to the motion to dismiss.
Nieves contended that section 4105 violated the Equal Protection
Clause and the Due Process Clause of the United States Constitu-
tion and their counterpart clauses in the Puerto Rico Constitu-
tion. Alternatively, Nieves argued that there remained a genuine
issue of material fact with respect to whether Drs. Gelp and
Gonz lez Recio were UPR "employees" entitled to section 4105
immunity, or merely "independent contractors" employed pursuant
to a contract between the Hospital and UPR.
On the same day that Nieves filed her opposition to the
motion to dismiss, the district court dismissed the complaint as
to all defendants.3 Three weeks later, however, the two appel-
lee physicians filed a "reply" to Nieves' opposition, to which
they attached a sworn statement by a UPR dean attesting that Dr.
Gonz lez Recio was an "employee" of the UPR medical school campus
____________________
2Insurers are insulated from liability to the same extent
their insured physicians are entitled to 4105 immunity. See
___
Lind Rodr guez v. Commonwealth of Puerto Rico, 112 P.R. Dec. 67,
_______________ ___________________________
68 (1982) ( 4105 immunity not a personal defense, but the
"inexistence of a cause of action," so that "the insurer is not
liable").
3The district court granted Nieves' request for voluntary
dismissal of the complaint against UPR for lack of jurisdiction.
See Fed. R. Civ. P. 41(a)(2). A Rule 12(b)(1) dismissal would
___
not bar suit against UPR in the Commonwealth courts. See Costel-
___ _______
lo v. United States, 365 U.S. 265, 285 (1961) (Rule 12(b)(1)
__ ______________
dismissal not disposition on merits).
4
in December 1983, and that Dr. Gelp was a "resident" in the UPR
medical graduate program. On April 7, 1992, Nieves filed a
motion for clarification and reconsideration, expressing concern
that the district court overlooked the arguments presented in the
opposition memorandum she filed the day the court dismissed the
complaint. The district court denied the motion to reconsider.
II
II
DISCUSSION
DISCUSSION
A. Constitutionality of Section 4105.
A. Constitutionality of Section 4105.
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Nieves contends that section 4105 violates the equal
protection and due process clauses of the Puerto Rico Constitu-
tion4 because it (1) discriminates against "poor" people an
inherently "suspect" class under Puerto Rico constitutional law
who have no economic option but to use the low-cost public
health services provided by physicians employed by the Common-
wealth, or (2) divests all patients treated by Commonwealth-
employed physicians of a "fundamental" constitutional right; that
is, the right to recover full compensatory damages for injuries
____
____________________
caused by physician negligence.5 Nieves argues, therefore, that
4Article II, section 7, of the Commonwealth constitution
provides: "The right to life, liberty and enjoyment of property
is recognized as a fundamental right of man. The death penalty
shall not exist. No person shall be deprived of his liberty or
property without due process of law. No person in Puerto Rico
shall be denied equal protection of the laws. . . ." Article
II, section 1, provides: "The dignity of the human being is
inviolable. All men are equal before the law. No discrimination
shall be made on account of race, color, sex, birth, social
origin or condition, or political or religious ideas. Both the
laws and the system of public education shall embody these
principles of essential human equality."
5On appeal, Nieves has abandoned the equal protection and
due process arguments premised on the United States Constitution.
5
her constitutional challenges require us to subject section 4105
to "strict scrutiny." She requests that the district court's
interpretation of Puerto Rico law be set aside, or that these
constitutional questions be certified to the Puerto Rico Supreme
Court. See P.R. Laws Ann. tit. 4, App. I-A, Rule 27(a).6
___
Under Puerto Rico law, a statutory classification that
"affects fundamental rights of the citizen or is intended against
___________ ______
a suspect classification" is subjected to "strict scrutiny," a
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heightened standard under which the Commonwealth must demonstrate
"a compelling state interest which justifies the classification
and that the [classification] necessarily encourages the attain-
ment of that interest." Zachry Int'l of Puerto Rico v. Superior
___________________________ ________
Court of Puerto Rico, 104 P.R. Dec. 267, 277-78 (1975) (emphasis
_____________________
added). We have been unable to find a reported Puerto Rico
decision squarely addressing the constitutional questions raised
by Nieves. The cases cited by appellees, and presumably endorsed
by the district court, are distinguishable, either because they
involve statutory classifications which do not implicate the
____________________
6Rule 27 of the Supreme Court of Puerto Rico provides, in
pertinent part:
This court may take cognizance of any matter certified
for it by the Supreme Court of the United States, a
Circuit Court of Appeals of the United States, a Dis-
trict Court of the United States, . . . whenever it is
thus requested by any of said courts, if before the
petitioner court there is any judicial matter involving
questions of Puerto Rican law which may determine the
result thereof, and with regard to which, in the opin-
ion of the petitioner court, there are no clear prece-
dents in the case law of this Court.
P.R. Laws. Ann. tit. 4, App. I-A, Rule 27(a).
6
species of "fundamental right" or "suspect class" relied on by
Nieves in the present case, see, e.g., Lind Rodr guez v. Common-
___ ____ ______________ _______
wealth of Puerto Rico, 112 P.R. Dec. 67 (1982); V zquez Negr n v.
_____________________ ______________
Department of Health of Puerto Rico, 109 P.R. Dec. 19 (1979),7
_____________________________________
or because they treat with arguments exclusively based on the
United States Constitution, not the Commonwealth constitution,
see, e.g., Rodr guez Diaz v. Sierra Mart nez, 717 F. Supp. 27, 32
___ ____ ______________ _______________
(D. P.R. 1989) (presuming that Lind and V zquez also determined
____ _______
____________________
7The district court cited these two decisions in its dis-
missal order. V zquez Negr n reversed a summary judgment for a
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defendant-physician, finding that he was not covered by the pre-
___
1978 version of 4105, which excluded from its protection
physicians who worked only part-time for the Commonwealth.
V zquez Negr n, 109 P.R. Dec. at 23. On appeal, plaintiff
_______________
proposed an alternative basis for reversal, arguing that 4105
violated his right to equal protection. Because the court found
4105 inapplicable, however, it expressly refused to reach (or
even to describe) plaintiff's constitutional argument. Id. at
___
25. On the other hand, the court reached, and rejected, a
distinct equal protection challenge raised by the defendant-
__________
physician, who contended that the pre-1978 version of 4105
_________
discriminated between physicians who worked exclusively for the
Commonwealth and those who worked part-time. Id. at 25-26.
___
Because part-time physicians are not a "suspect" class, and
immunity from suit is not a "fundamental" constitutional right,
see Alicea v. C rdova Iturregui, 117 P.R. Dec 676, 691 (1986)
___ ______ _________________
(noting that neither Lind nor V zquez dealt with any fundamental
____ _______
right of physicians), the court upheld the statute on a tradi-
tional "rational basis" analysis. V zquez Negr n, 109 P.R. Dec.
______________
at 25-26. ("[I]t is evident that those physicians whose income
is limited to the salary derived from the State deserve greater
protection.").
In Lind Rodr guez, the court affirmed summary judgment for a
______________
defendant-physician employed part-time by the Commonwealth, based
on a 1978 amendment to 4105 which eliminated its "exclusivity"
limitation. Lind Rodr guez, 112 P.R. Dec. at 68. Despite
_______________
plaintiffs' failure to preserve their equal protection claim in
the trial court, the Puerto Rico Supreme Court considered and
rejected the argument on its merits, adding that "[plaintiffs] do
not persuade us to change our decision in V zquez Negr n." Id.
______________ ___
at 68-69. This cryptic language in Lind Rodr guez provides no
_______________
guidance, however, as the court did not describe the equal
protection claim it was rejecting.
7
4105's validity under the United States Constitution, undertak-
ing its own independent inquiry of federal case law, and citing
_______
Schweiker v. Wilson, 450 U.S. 221 (1981)); supra note 5.
_________ ______ _____
Absent controlling state-law precedent, a federal court
sitting in diversity has the discretion to certify a state-law
question to the state's highest court. See Lehman Bros. v.
___ _____________
Schein, 416 U.S. 386, 391 (1974). Before this discretionary
______
decision is even considered, however, we must first undertake our
own prediction of state law for we may conclude that "the course
[the] state court[] would take is reasonably clear." Porter v.
______
Nutter, 913 F.2d 37, 41 n.4 (1st Cir. 1990); cf. Salve Regina
______ ___ _____________
College v. Russell, 499 U.S. 225, ___, 111 S. Ct. 1217, ____, 113
_______ _______
L. Ed. 2d 190, 203 (1991) (court of appeals erred by deferring to
district court interpretation of local state law).
1. Suspect Class Based on "Social Condition".
1. Suspect Class Based on "Social Condition".
_________________________________________
The equal protection clause of the Puerto Rico Consti-
tution, eclectically patterned on such works as the American
Declaration of the Rights and Duties of Man and the Universal
Declaration of the Rights of Man, is more liberally phrased than
its federal counterpart. See Pruneyard Shopping Ctr. v. Robins,
___ ________________________ ______
447 U.S. 74, 81 (1980) (state constitution may afford more, but
not less, protection than Federal Constitution). Specifically,
Article II, section 1, of the Commonwealth constitution bans
discrimination based on "social origin or condition." See supra
___ _____
note 4. The Puerto Rico Supreme Court has held that any statuto-
ry classification that discriminates on the basis of a "human
8
dignity" standard enumerated in Article II, section 1, is inher-
ently "suspect." See, e.g., L on Rosario v. Torres, 109 P.R.
___ ____ ____________ ______
Dec. 804, 813-14 (1980). Thus, although its precise contours
remain undefined, "poverty" is considered a suspect classifica-
tion under the Commonwealth constitution, triggering "strict
scrutiny" analysis unobtainable under the Equal Protection Clause
of the United States Constitution. Compare, e.g., Molina v.
_______ ____ ______
Urban Renewal and Hous. Corp., 114 P.R. Dec. 295, 312 (1983)
_______________________________
(summarizing history of Puerto Rico's constitutional convention,
noting that "there can be no doubt that the drafters of our
Constitution thought it was basic that there be no discrimination
against any person by reason of the person's poverty . . . and
any classification based on this should be regarded with suspi-
cion and be strictly scrutinized") (Irizarry, J., concurring),
with, e.g., Harris v. McRae, 448 U.S. 297, 323 (1980) ("[P]ov-
____ ____ ______ _____
erty, standing alone, is not a suspect classification.").
Notwithstanding the unique history, culture and legal
traditions of Puerto Rico, and the absence of a federal lodestar
for a constitutional classification based on poverty, see San
___ ___
Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973)
__________________________ _________
(noting that, unlike race or gender, "the class of disadvantaged
'poor' cannot be identified or defined in customary equal protec-
tion terms"), we are confident that Nieves would not prevail on
her claim under existing Commonwealth law. The claim falters on
evidentiary grounds in that the summary judgment record is
plainly deficient to enable a determination that the immunity
9
scheme established by section 4105 operates to discriminate on
________
the basis of a suspect classification.
Nieves does not contend that section 4105 discriminates
either on its face or as applied against "poor" patients.
Nor is it self-evident that patients utilizing public health
services in Puerto Rico a facially neutral statutory classifi-
________
cation are all, or even primarily, "poor." In addition, since
section 4105 merely provides a "defense" which may be invoked by
private civil litigants, i.e., public health service doctors,
____
against any patient allegedly injured as a result of medical
malpractice by a public health service physician, Nieves cannot
demonstrate that the Commonwealth has applied the statute select-
_______
ively against only that subset of public health service patients
who are "poor." Rather, Nieves' only colorable argument is that
section 4105 has the actual effect of discriminating against
______
"poor" people because a disproportionate share of public health
________________
services in Puerto Rico is administered to the "poor." Given
this position, we think that Nieves' proposed showing would not
establish unlawful discrimination under existing Puerto Rico
judicial authority.
As a preliminary matter, we note that Nieves' claim of
disparate impact rests on a fragile foundation. The data are
presented in the form of a lawyer's assertions,8 rather than in
____________________
8Nieves' opposition memorandum, signed by her attorney David
Efron, Esquire, recites the following data:
Puerto Rico's per capita income is $18,705.00 according
to the Planning Board's 1988 Report to the Governor.
10
the form required by Rule 56(e),9 and are much less compelling
and probative than Nieves' counsel claims.10 Nonetheless, we
____________________
In that same year, the Medical Assistance Program of
the Puerto Rico Health Department reported that out of
667,753 patients who attended public health facilities
on the island, 387,091 had annual income of less than
$12,501; 57,750 of less than $3,300, 45 less than
$5,800. Only 891 persons had annual income of $12,800
or more. Some 75% of the patients at public institu-
tions are indigent.
9Nieves conceded that the district court correctly treated
defendants' motion to dismiss as a motion for summary judgment.
See Fed. R. Civ. P. 12(b)-(c). Thus, as the nonmoving party,
___
Nieves was required to "set forth specific facts showing that
there was a genuine issue for trial." Fed. R. Civ. P. 56(e).
Quoting data out of context, Nieves did not attach either the
full or excerpted reports she cited as the source of those data.
See, e.g., Garside v. Osco Drug, Inc., 895 F.2d 46, 49-50 (1st
___ ____ _______ ________________
Cir. 1987). Factual assertions by counsel in motion papers,
memoranda, briefs, or other such "self-serving" documents, are
generally insufficient to establish the existence of a genuine
issue of material fact at summary judgment. See, e.g., Fragoso
___ ____ _______
v. Lopez, 991 F.2d 878, 887 (1st Cir. 1993); Transurface Carri-
_____ __________________
ers, Inc. v. Ford Motor Co., 738 F.2d 42, 46 (1st Cir. 1984); see
_________ ______________ ___
generally 10A Charles A. Wright, Arthur R. Miller & Mary K. Kane,
_________
Federal Practice & Procedure 2723, at 63-65 (1983 & Supp.
______________________________
1993); cf. also Fed. R. Evid. 201(d) (judicial notice of adjudi-
___ ____
cative facts is required only where proponent supplies court with
necessary information).
10For example, the opposition memorandum states that only
891 out of 667,753 persons treated at public health facilities in
1988 had annual incomes in excess of $12,800, and that Puerto
Rico's "per capita income" that year was $18,705. It does not
specify, however, whether the $18,705 figure is the median or the
average annual income, nor explain the basis for selecting
$12,800 as the "poverty" cut-off figure, nor indicate the per-
centage of the total population of Puerto Rico that falls below
the suggested "poverty" cut-off.
Moreover, the data presented in the memorandum are inconsis-
tent. Although the memorandum asserts that 75% of public health
patients were "indigent," the other figures cited, if taken to be
poverty "lines," would yield indigency rates of either 66%
(444,886 patients of 667,753 below $12,501), or more than 98%
(666,862 out of 667,753 below $12,800). Both the 66% and the 98%
indigency rates assume that the ambiguous figure of 387,091 does
not really include all patients with incomes "less than $12,501,"
as Nieves describes, but only those with incomes falling between
_______
11
assume, for present purposes only, that many of the users of
Puerto Rico public health services are likely to be poorer than
the average population. Still, we are not persuaded that the
Puerto Rico courts would find that such a showing was a disposi-
tive basis from which to declare section 4105 unconstitutional.
In addition to raw statistical data of disproportionate
impact, we think the Commonwealth courts would require evidence
(e.g., historical patterns of discrimination against the targeted
____
class, or pre-enactment legislative history) that the Puerto Rico
legislature enacted section 4105 with an invidious discriminatory
purpose or intent against the "poor" as a class. Cf., e.g.,
___ ____
Personnel Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 278-80
________________________________ ______
(1979) (upholding gender-neutral state statute that gave civil
service employment preference to "veterans," even though pre-
ferred class was proven to be 98% male, absent proof that Legis-
lature enacted it "because of," rather than "in spite of" its
adverse effects on women); Washington v. Davis, 426 U.S. 229, 239
__________ _____
(1976) (upholding testing for police officer applicants, despite
statistical evidence that test had disproportionate adverse
impact on black applicants, absent other evidence of "racially
discriminatory purpose" of legislative enactment). Nieves
proffered no such evidence of discriminatory purpose. In fact,
section 4105's legislative history suggests that the Legislature
____________________
$3300 and $12,501. If Nieves' other cited figures (57,750
patients and 45 patients) merely represent further breakdowns of
this overall figure of 387,091 patients, the indigency rate
_______
actually falls to 58%.
12
was animated by far more beneficent motives concern that
inflationary malpractice insurance premiums would dry up the
supply of physicians willing to practice in public health servic-
es, depriving many Puerto Rican families of quality health care.
See generally Enr quez P rez, 108 P.R. Dec. at 677-80.
___ _________ ______________
Given this shortfall, we simply lack a reliable
evidentiary base from which to appraise whether section 4105 dis-
criminates against the alleged suspect classification under
Commonwealth law.11
2. Fundamental Right to Civil Suit for Damages.
2. Fundamental Right to Civil Suit for Damages.
___________________________________________
Nieves' alternate constitutional claim bypasses the
problematic "poverty" classification discussed above. Nieves
contends that "strict scrutiny" analysis is required because the
Puerto Rico Constitution guarantees the "fundamental" right to
maintain a civil suit for full compensatory damages, see Torres
___ ______
v. Castillo Alicea, 111 P. R. Dec. 792, 801-802 (1981), without
_______________
regard to whether the challenged statutory classification targets
a suspect class. She argues that section 4105 unconstitutionally
deprives a non-suspect class all patients who use Puerto Rico
public health services of this fundamental right without
____________________
11The Puerto Rico Supreme Court would reject any certifica-
tion of this factually undeveloped issue. See Pan Am. Computer
___ _________________
Corp. v. Data Gen. Corp., 112 P.R. Dec. 780, 788 (1982) (Rule 27
_____ _______________
certification is warranted only if, inter alia, "the case makes
_____ ____
an account of all the facts relevant to said questions showing
clearly the nature of the controversy giving rise to the ques-
tions").
13
positing a compelling governmental interest in its classification
__________
scheme. But cf., e.g., Christensen v. Ward, 916 F.2d 1462, 1472
___ ___ ____ ___________ ____
(10th Cir.) (pursuit of state-law tort action not fundamental
right guaranteed by Federal Constitution), cert. denied, 498 U.S.
_____ ______
999 (1990); Edelstein v. Wilentz, 812 F.2d 128, 131 (3d Cir.
_________ _______
1987) (same).
In Alicea v. C rdova Iturregui, 117 P.R. Dec. 676
______ __________________
(1986), the Puerto Rico Supreme Court struck down P.R. Laws Ann.
tit. 26, 4109(1), a MHPLIA companion provision to section 4105,
which established a maximum two-year statute of limitations for
all medical malpractice claims, without regard to whether the
injury was discoverable within the two-year limitations period.
The court noted that section 4109 created different (albeit non-
suspect) classifications for patients who sustained patent
injuries and patients with latent injuries. Id. at 688. The
___
court reaffirmed its earlier statement in Torres "that the right
______
to commence a civil action is a fundamental right," and went on
___________ _____
to conclude that "any legislative classification affecting such
right will have to withstand the strict judicial scrutiny analy-
sis." Id. at 690 (citing Torres, 111 P. R. Dec. at 801-02)
___ ______
(emphasis added). In Alicea, the court held that the Common-
______
wealth lacked a sufficiently "compelling state interest" to
justify even this non-suspect classification, and that the
purported goals of the MHPLIA assuring the general avail-
ability of medical malpractice insurance and avoiding the in-
creasing medical costs and declining quality of care associated
14
with exorbitant malpractice insurance premiums would not do.
Id. at 693.
___
The Alicea court's depiction of Torres has engendered a
______ ______
splintered precedent that ultimately undermines Nieves' argument.
Only two justices joined the opinion of the court in Alicea
______
without reservation. Three justices filed separate concurrences;
one justice lodged a vigorous dissent.12 In her concurring
opinion, Justice Naveira de Rod n concluded that the right to
bring a civil suit for damages was at best a "property" right,
and though section 4109(1) was violative of procedural due
process, she opined that Torres did not recognize a "fundamental"
______ ___
constitutional right of access to the civil courts. Alicea, 117
______
P.R. Dec at 699-70 n.1 (Naveira de Rod n, J., concurring).13
Moreover, the dissent warned that such a reading of Torres would
______
expose all Puerto Rico civil statutes of limitations to strict
scrutiny. Id. at 710 (Rebollo L pez, J., dissenting). Thus, five
___
of the seven justices on the Court did not endorse Nieves' inter-
pretation of Torres. See In re San Juan Dupont Plaza Hotel Fire
______ ___ _______________________________________
Litig., 687 F. Supp. 716, 733-34 (D. P.R. 1988) (citing Alicea as
______ ______
support for interpreting Torres as recognizing a "property"
______
right, not a "fundamental" right, to bring civil suit for damag-
____________________
12Justice Denton did not participate in the Alicea decision,
______
and Justice Pons Nu ez concurred without a separate opinion.
13The concurrence aptly notes that, unlike states such as
Texas and Arizona that presumably recognize such a fundamental
constitutional right, see Kenyon v. Hammer, 688 P.2d 961 (Ariz.
___ ______ ______
1984); Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984), Puerto Rico
______ ______
has no separate or explicit "open access to courts" provision in
its constitution.
15
es); see also Gregg v. Georgia, 428 U.S. 153, 169 n. 15 (1976)
___ ____ _____ _______
(noting that, when no rationale commands the respect of a majori-
ty of the court, "the holding of the Court may be viewed as that
position taken by those Members who concurred in the judgments on
the narrowest grounds") (emphasis added).
_________ _______
Moreover, our own analysis of the Torres decision
______
confirms that the reservations expressed by the concurring and
dissenting justices in Alicea conflict with the broader inter-
______
pretation of Torres proposed by Nieves. Torres struck down a
______ ______
statute which capped tort damages in malpractice actions against
the Commonwealth, but permitted plaintiffs who won higher jury
awards to petition the Legislature for special exemption from the
caps. See Torres, 111 P. R. Dec. at 795. Although Torres cites
___ ______ ______
language suggesting that the challenged statute fatally impeded a
"fundamental" right to bring a civil action, the court struck
down the statute without mentioning the need to demonstrate a
"compelling state interest," thereby raising grave doubt whether
"strict scrutiny" analysis was engaged. Arguably, at least,
Torres invalidated the legislative exemption scheme simply as an
______
undue encroachment on the judicial branch, "in contravention to
the principle of separation of powers." Id. at 803; cf. V lez
___ ___ _____
Ruiz v. Commonwealth of Puerto Rico, 111 P.R. Dec. 747, 762
____ ____________________________
(1981) (striking down MHPLIA's compulsory arbitration provision
as undue interference in judicial function). Thus, Nieves'
proposed reading of Torres, the mooring for her constitutional
______
claim, derives from language which may well be mere dicta.
16
Since a majority of the Puerto Rico Supreme Court has
not interpreted (indeed, has declined, as in Alicea, to inter-
______
pret) Torres as Nieves urges, it would be unfitting for us to
______
chart the future course of Commonwealth law or to enlist the
Puerto Rico Supreme Court in her pathfinding effort. See Venezia
___ _______
v. Miller Brewing Co., 626 F.2d 188, 192 n.5 (1st Cir. 1980)
___________________
(court should be wary of certification where requesting party
merely seeks to persuade state court to extend current state
______
law). State-law claimants who bypass an available state forum
generally are not entitled to adventurous state-law interpreta-
tions from the federal forum,14 nor have we been receptive to
their requests for certification newly asserted on appeal.15
____________________
14See Putnam Resources v. Pateman, 958 F.2d 448, 470 n.25
___ _________________ _______
(1st Cir. 1992); Carlton v. Worcester Ins. Co., 923 F.2d 1, 3
_______ __________________
(1st Cir. 1991); Ryan v. Royal Ins. Co., 916 F.2d 731, 744 (1st
____ _______________
Cir. 1990); Taylor v. Aetna Casualty and Sur. Co., 867 F.2d 705,
______ ___________________________
706 (1st Cir. 1989); see also Tidler, 851 F.2d at 425.
___ ____ ______
15See Fischer v. Bar Harbor Banking & Trust Co., 857 F.2d 4,
___ _______ ______________________________
8 (1st Cir. 1988), cert. denied, 489 U.S. 1018 (1989); Cantwell
_____ ______ ________
v. University of Massachusetts, 551 F.2d 879, 888 (1st Cir.
____________________________
1977); see also Seaboard Sur. Co. v. Garrison, Webb & Stanaland,
___ ____ _________________ ___________________________
P.A., 823 F.2d 434, 438 (11th Cir. 1987); Colonial Park Country
____ ______________________
Club v. Joan of Arc, 746 F.2d 1425, 1429 (10th Cir. 1984); Smith
____ ___________ _____
v. FCX, Inc., 744 F.2d 1378, 1379 (4th Cir. 1984), cert. denied,
_________ _____ ______
471 U.S. 1103 (1985).
Nieves first requested certification on appeal; thus her
entitlement is "considerably weaken[ed]." Boston Car Co., Inc.
_____________________
v. Acura Auto. Div., Am. Honda Motor Co., 971 F.2d 811, 817 n.3
______________________________________
(1st Cir. 1992); see also Croteau v. Olin Corp., 884 F.2d 45, 46
___ ____ _______ __________
(1st Cir. 1989); Fischer, 857 F.2d at 8; Tidler, 851 F.2d at 426;
_______ ______
Perkins v. Clark Equip. Co., 823 F.2d 207, 210 (8th Cir. 1987)
_______ _________________
("The practice of requesting certification after an adverse
judgment has been entered should be discouraged."). Absent a
timely request to the district court, the requesting party must
advance some "compelling" reason for certification on appeal.
Id. Although on occasion we have ordered certification sua
___ ___
sponte, we find here no countervailing reasons for allowing
______
certification in these circumstances.
17
While Nieves did not raise the section 4105 "defense," of course,
it was a clearly foreseeable response to her federal complaint
against appellees.
B. Definition of "Employee" in Section 4105.
B. Definition of "Employee" in Section 4105.
________________________________________
Finally, Nieves contends that a genuine issue of
material fact remained with respect to whether Drs. Gelp and
Gonz lez Recio were independent contractors working for UPR
pursuant to a contract with the Hospital, a privately-owned
medical facility. See Flores Rom n v. Ramos, 90 J.T.S. 132, at
___ ____________ _____
8243-44 (1990) (holding that physicians who were merely indepen-
dent contractors of Commonwealth, and not its "employees," were
not entitled to section 4105 immunity). To determine whether a
physician claiming section 4105 immunity is an "independent
contractor," or merely a Commonwealth "employee," the court must
consider the totality of the circumstances, focusing principally
on the level of control contractually reserved to the governmen-
tal entity over the physician's provision of patient services.
See Flores Rom n, 90 J.T.S. 132, at 8244. Relevant indicia of
___ _____________
"independent contractor" status may include, inter alia, evidence
_____ ____
that the physician
(1) earned compensation on a per-patient
basis, rather than a flat salary;
(2) received no fringe benefits of a type
given to the principal's employees (-
_
e.g., vacation or sick leave, pension
____
benefits, tax withholding);
(3) personally owned, invested in, or paid
for the medical equipment and supplies
18
used to treat patients, or the facili-
ties which formed the situs of that
treatment, or personally hired and su-
pervised her own administrative or sub-
sidiary medical personnel;
(4) held and paid for her own medical mal-
practice insurance policy; or
(5) exercised final judgment as to the ap-
propriate medical treatment to render to
patients.
Id.; see also Rivera v. Hospital Universitario, 762 F. Supp. 15,
___ ___ ____ ______ ______________________
17 (D. P.R. 1991).
On appeal, Nieves and the appellees bandy various
statements relating to the physicians' status, without much
regard to whether these "facts" were ever substantiated in the
summary judgment record as required by Rule 56. In their answer
and motion to dismiss, Drs. Gelp and Gonz lez Recio claimed that
they were "state employed physicians" entitled to section 4105
immunity. Later, they introduced a sworn statement by John M.
Rom n Rodr guez, Dean of UPR's Medical Science Campus and custo-
dian of its personnel records, attesting that Dr. Gonz lez Recio
was an "employee" of the UPR medical school in December 1983, and
that Dr. Gelp , while not an "employee" of UPR, was enrolled as a
"resident" in training in UPR's medical graduate program.16
____________________
16We assume for present purposes that appellees had the
burden of proof with respect to their status as Commonwealth
"employees." See P.R. Laws Ann. tit. 32, 1971; but see supra
___ ___ ___ _____
note 2. We note, however, that Nieves might have raised a
distinct issue of statutory interpretation in the district court
and on appeal; namely, whether the affiant's mere assertion that
Gelp was a UPR medical "resident" or trainee was probative, as a
matter of law, of his status as a UPR "employee" under section
4105. Generally speaking, of course, not all UPR students would
necessarily be deemed school "employees" merely by virtue of
19
Nieves conceded at oral argument that the motion to
dismiss was properly converted to a motion for summary judgment
pursuant to Fed. R. Civ. P. 12(b)-(c). As the nonmoving party,
Nieves was required to set forth specific facts demonstrating a
trialworthy issue as to whether these defendant physicians were
independent contractors. See Fed. R. Civ. P. 56(e). In support
___
of her "independent contractor" theory, Nieves contends that (1)
prior to December 1983, pursuant to contract, UPR placed its
faculty and medical graduate students (residents and interns) at
the Hospital for training purposes, the Hospital paid UPR for
their services, and UPR paid the physicians a salary out of the
contract proceeds; (2) Dr. Gonz lez Recio, Dr. Gelp 's super-
visor, headed the Hospital's OB-GYN department, and received no
direct supervision in the performance of her Hospital duties from
any UPR official; (3) UPR carried malpractice insurance coverage
on both physicians at its own expense, allegedly a superfluous
expenditure if the physicians were "employees" entitled to
section 4105 immunity; and (4) the medical equipment and facili-
ties the defendant physicians used to treat patients were neither
provided nor owned by UPR. Nieves faces two difficulties on
appeal.
____________________
their student status. But as framed on appeal, Nieves' argument
does not contest Gelp 's status as a UPR "employee" on this
ground. Therefore, we merely consider whether there was a
genuine factual dispute as to Gelp 's status as an "independent
contractor" of UPR. See Vanhaaren v. State Farm Mut. Auto. Ins.
___ _________ __________________________
Co., 989 F.2d 1, 5 (1st Cir. 1993) (party to diversity action
___
waives state-law interpretation not raised in district court at
summary judgment); see also Hansen v. Continental Ins. Co., 940
___ ____ ______ _____________________
F.2d 971, 983 n.9 (5th Cir. 1991) (same).
20
First, assuming these "facts" to be probative on the
issue of "independent contractor" status (e.g., minimal UPR
____
supervision of Dr. Gonz lez Recio), the only "proof" presented by
Nieves consisted of the undocumented and unsubstantiated asser-
tions contained in her opposition memorandum of January 31, 1992.
Although Nieves argues that "the facts . . . depend on the super-
vision and control over [the doctors'] functions pursuant to
________ __
contract," and even though she deposed both physicians and con-
________
ducted discovery for eight months prior to dismissal, she never
submitted the pertinent contract provisions, the malpractice
insurance policies, or an affidavit in support of the factual
assertions set forth in her opposition memorandum.17 Factual
assertions by counsel in motion papers, memoranda, or briefs are
generally not sufficient to generate a trialworthy issue. See
___
Fragoso v. Lopez, 991 F.2d 878, 887 (1st Cir. 1993); see also In
_______ _____ ___ ____ __
re Morris Paint and Varnish Co., 773 F.2d 130, 134 (7th Cir.
_________________________________
1985); S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde
__________________________________________ ____________
& Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1982).
___________
Second, even though a party may not generate a trial-
worthy dispute at summary judgment merely by presenting unsub-
stantiated allegations in its memoranda or briefs, a party may
nonetheless concede facts adverse to its position on summary
_______
____________________
17We appreciate that Nieves may have been caught off guard
by appellees' reply memorandum, filed three weeks after the
court's dismissal order. Nevertheless, if Nieves lacked suffi-
cient time to present her evidence in admissible form, she could
have moved for a continuance pursuant to Fed. R. Civ. P. 12(c)
and 56(f).
21
judgment. See 10A Charles A. Wright, Arthur R. Miller & Mary K.
___
Kane, Federal Practice & Procedure 2723, at 63-65 (1983 & Supp.
____________________________
1993) (adverse facts are the functional equivalent of "admissions
on file" explicitly cognizable under Rule 56). Nieves makes
several important concessions relevant to the appropriate "inde-
pendent contractor" analysis prescribed by Flores Rom n. The
____________
mere existence of a residency contract between UPR and the
Hospital, together with UPR's payment of the physicians'
salaries, indicates that UPR exercised ultimate "control" over
the conditions under which the doctors were to provide medical
services at the Hospital. Further, UPR's provision and payment
of medical malpractice insurance coverage for these physicians
suggested, unless competently rebutted, an employer-employee
relationship between UPR and these physicians under the UPR-
Hospital contract. Cf. Flores Rom n, 90 J.T.S. 132, at 8244
___ _____________
(because physicians' contract with state agency gave them abso-
lute control over medical treatment, contract also required the
doctors to pay for, and maintain in force at all times, their own
malpractice insurance policies, and to reimburse government
entity for all legal expenses arising from the doctors' negligent
acts).18 Finally, Nieves misapprehends the fundamental message
of Flores Rom n, by arguing that the Hospital's ownership of the
____________
____________________
18Nieves argues that UPR would not need to insure the physi-
cians if they were "employees," hence absolutely immune from
liability under section 4105. Of course, this is not necessarily
true, since UPR, as an "arm" of the Commonwealth, could still be
liable for the negligence of its immune employees up to the
statutory limits prescribed by P.R. Laws Ann. tit. 32, 3077(a).
See supra pp. 3-4.
___ _____
22
medical equipment and facilities establishes that the doctors
were independent contractors. The proper focus is not whether
the putative principal (viz., UPR) owns or controls the equipment
____
and facilities, but whether the performing party (viz., the
____
physician) uses his own "tools" to perform the required services.
Nieves readily concedes that these physicians did not own the
medical equipment used to treat their patients, nor did they hire
or supervise their own support personnel, nor contribute to
Hospital operating expenses. Moreover, individual physicians did
not contract with the Hospital to obtain privileges or accommoda-
tions. Cf. Flores Rom n, 90 J.T.S. 132, at 8244 (noting that the
___ ____________
contract provided that the contract doctors would hire their own
support personnel, and treat patients with their own equipment,
at their own facilities).
We conclude that the summary judgment record contained
no competent evidence, and accordingly did not raise a colorable
factual dispute, from which the district court could have made a
determination that either physician was an "independent contrac-
tor" of UPR. Appellees therefore were entitled to judgment as a
matter of law.19
Affirmed.
Affirmed.
________
____________________
19On appeal, Nieves argues for the first time that Dr. Gelp
produced no evidence that he was a "health care professional"
within the meaning of the MHPLIA. We decline to address this
belated claim as it was never raised in the district court. See
___
Miller v. United States Postal Serv., 985 F.2d 9, 12 (1st Cir.
______ ___________________________
1993).
23
