Filed: Dec. 11, 2003
Latest Update: Feb. 22, 2020
Summary: The Johns Hopkins records are a different story.7, For example, Arroyo's counsel was late in filing a response, to defendants' motion that plaintiffs be required to post a non-, resident bond, and when the court finally did order the plaintiffs, to post a bond, plaintiffs posted it late.
Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1086
ROSA M. ARROYO-VELÁZQUEZ, ET AL.,
Plaintiffs, Appellants,
v.
HOSPITAL HERMANOS MELÉNDEZ, INC.,
DR. JESÚS SEDA-RAMÍREZ, DR. JUAN MARTÍNEZ-RODRÍGUEZ, ET AL.
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Boudin, Chief Judge,
Howard, Circuit Judge,
and DiClerico,* District Judge.
Rafael F. Castro-Lang with whom Francisco Castro-Amy was on
brief for appellants.
Jeannette López de Victoria, Benjamín Morales-Del Valle and
Roberto Abesada-Aguet with whom Pinto-Lugo, Oliveras & Ortiz, PSC,
Jaime Morales-Morales, Morales-Morales Law Offices, Harold Vicente
Colón and Vicente & Cuebas were on brief for appellees.
December 11, 2003
*
Of the District of New Hampshire, sitting by designation.
BOUDIN, Chief Judge. This is an appeal from an order
dismissing with prejudice a medical malpractice action brought by
Rosa M. Arroyo-Velázquez ("Arroyo") and other family members; the
dismissal was based on their attorney's failure to comply with case
management orders. The primary defendants were Hospital Hermanos
Melendez, Inc. ("the hospital"), which operates a facility in
Bayamon, Puerto Rico, several of its doctors, and unnamed insurers.
The background is as follows.
On August 5, 1997, Arroyo underwent surgery at the
hospital for an ovarian cyst. Serious complications ensued and
several further operations were performed at the hospital; if
Arroyo's account is credited, there were serious medical blunders,
considerable suffering and permanent impairments. In due course,
she left the Hospital and began treatment at the Johns Hopkins
Hospital in Baltimore ("Johns Hopkins"). In November 1999, she and
her co-plaintiffs brought this diversity action in federal court
against the defendants.
A statute of limitations defense was asserted--the Puerto
Rico statute is one year, 31 P.R. Laws Ann. § 5298(2) (1990)--and,
after multiple extensions of time, opposed by the plaintiffs in
August 2000. It is not clear how much, if any, discovery was
conducted in this initial period–-seemingly not much. In all
events in October 2000, the statute of limitations defense was
rejected by the district court, apparently because a prior action
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had been brought in state court and dismissed without prejudice,
thereby tolling the limitations period. See 31 P.R. Laws Ann. §
5303 (1990); King v. TL Dallas & Co., 270 F. Supp. 2d 262, 270
(D.P.R. 2003).
There followed two years of fumbling trial preparation
until the case was finally dismissed by the district court on
August 19, 2002. To recount all of the pertinent discovery
problems and protests would take pages, but it appears that from
the outset Arroyo's trial counsel (not her counsel on this appeal)
found it difficult to meet ordinary discovery obligations; this he
attributed in part to unspecified family problems of his own during
the initial year. Because most of the trial preparation
difficulties are only background for the later dismissal, it is
enough to summarize the main themes.
First, it is often hard to find doctors to testify
against other doctors, and apparently especially hard in this case.
But Arroyo's counsel compounded the problem by naming successive
experts and then having to replace them, either because they had
never committed themselves or because they withdrew.1 He also
failed to produce expert reports on time and had difficulties in
producing promised experts for depositions. Of course, the
1
In the summer of 2001, plaintiffs represented to the court
that, after Dr. Mark Talamini, one of Arroyo's treating physicians
at Johns Hopkins, had refused to be their expert witness, they had
contacted some twenty-five doctors before finally finding a
replacement.
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defendants' own retention and preparation of experts were hostage
to these delays.
Second, for obvious reasons the defendants wanted to
procure Arroyo's treatment records from the time she had spent at
Johns Hopkins. The records were arguably relevant to her past
treatment at the defendant hospital and to her suffering and
current condition; in addition, one of her treating physicians at
Johns Hopkins was initially named as an expert and then (when he
disclaimed this status) as a fact witness for Arroyo. These
records were the subject of discovery requests directed to Arroyo
and, perhaps foolishly, her counsel repeatedly undertook to provide
the records–-although they were not in Arroyo's direct control--and
repeatedly failed to produce the full collection.
Third, Arroyo's counsel appears to have had trouble
completing interrogatory answers. Here, the details are less
clear; possibly some of the answers depended on expert witness
positions or medical records that were themselves difficult to
obtain. It is undisputed that even by the beginning of May 2001,
almost a year and a half after the complaint was filed, plaintiffs
had failed to answer adequately various defendants' interrogatories
or document requests, all of which had been sent to them many
months before.
After disposing of the statute of limitations issue in
October 2000, the district court set a final pretrial conference
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for February 27, 2001, with trial for May 24, 2001. This schedule
was several times postponed, usually at the defendants' behest
because of Arroyo's delays in furnishing the expert reports,
medical records, and interrogatory answers. There were also
deposition scheduling difficulties for which blame is less easily
apportioned.
In response to these problems, the defendants followed a
dual track. On the one hand, they filed motions to compel and, as
the delays impinged on their preparation, motions to reschedule
pre-trial conferences and trial dates. On the other hand, the
defendants also filed successive motions over a two-year period to
dismiss the complaint based on the failure of Arroyo's counsel to
meet deadlines.2 For a time, the district court denied such
requests on technical grounds or without explanation, although a
small monetary penalty was imposed on Arroyo's counsel for not
providing timely answers to interrogatories.
Gradually, in the second half of 2001 and early 2002
Arroyo began to accumulate expert reports,3 although the Johns
2
Motions or supplements to motions enlarging on the requests
for dismissal appear to have been filed by one or more of the
defendants on or about: April 23, 2001; April 27, 2001; May 3,
2001; May 18, 2001; June 19, 2001; November 29, 2001; December 6,
2001; December 12, 2001; January 25, 2002; and June 18, 2002.
3
Dr. José Gratacós (gynecology) filed an expert report on
August 31, 2001. Dr. Antonio González (an economist) filed an
expert report on January 8, 2002, relating to the extent of Mrs.
Arroyo's financial damages. Dr. Virgilio Brunet-Cardona (general
surgery) filed an expert report on February 14, 2002.
-5-
Hopkins records and depositions of the experts remained in arrears.
On February 14, 2002, a date scheduled for a final pretrial
conference, the parties met with the court to work out further
discovery plans. The court ordered Arroyo to produce the remaining
Johns Hopkins documents including progress notes, physician orders
and nurses' notes within 30 days. Arroyo's counsel was told that
the failure to produce would result in sanctions.
In the same hearing the district court noted that
depositions of three doctors to be called by Arroyo (Drs. José
Gratacós and Virgilio Brunet-Cardona as experts and Dr. Mark
Talamini as a fact witness) and one economics expert (Dr. Antonio
Gonzalez) were now scheduled on specific dates from May 14, 2002,
through June 27, 2002. The court gave the defendants until August
30, 2002, to name their own experts and the court set a new
pretrial conference for October 30, 2002, warning that no further
continuances would be allowed and that sanctions would follow if
anyone impeded the proceedings further.
In June 2002, the hospital moved to compel discovery or
to dismiss the case because the Johns Hopkins records had still not
been produced in full and because the deposition of Arroyo's
physician fact witness, Dr. Mark Talamini, had been further
deferred.4 In August 2002, another defendant moved to defer the
4
In the same month, another one of the defendant doctors, Dr.
Olga Rodríguez-Rivera, obtained an unopposed dismissal of the
claims against her because the expert reports offered no theory of
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deadline for naming his own experts because the deposition of an
Arroyo expert witness, Dr. Virgilio Brunet-Cardona, had been
deferred. In both instances the witnesses were among the four
whose deposition dates had been listed in the February 14
conference minutes and in both cases the defendant blamed Arroyo's
counsel for the deferral.
On August 19, 2002, the district court entered an order
dismissing plaintiffs' case against all of the remaining defendants
under Rule 16(f) for "failure to abide by the Court's case
management schedule." The court noted that the pending motions by
the hospital and Martinez were unanswered by the plaintiffs, and
recounted the defendants' allegations that the missing Johns
Hopkins documents had not been produced, that plaintiffs had
"failed to arrange for the deposition of Dr. Talimani (sic) to be
taken on June 27, 2002, as ordered by the Court," and that "the
deposition of Dr. Virgilio Brunet which was scheduled by the Court
for May 14, 2002, was cancelled by plaintiffs and rescheduled for
August 1, 2002."
The court then said:
The record is plagued with instances of
non-compliance by plaintiffs and their
attorney with discovery deadlines and Court's
Orders. For the most part, the Court has been
tolerant, although it did previously sanction
plaintiffs' attorney in the amount of $600.00
for his untimely submission of answers to
wrongdoing directed against her.
-7-
interrogatories. The Court had observed
before that plaintiffs had evidenced a
"continuing pattern of delays." It only
appears to have progressed for the worse.
These latest incidents reported by
movants in their motions only serve to
demonstrate plaintiffs' contumacious disregard
for the discovery schedule and deadlines
established by the Court. They have seriously
hampered defendants' preparation for trial,
and in so doing have disrupted the orderly
progress of this case toward its resolution.
Clearly, they merit the imposition of the
harshest of sanctions: dismissal.
On August 28, 2002, Arroyo's counsel filed a motion to
alter or amend the judgment. Fed. R. Civ. P. 59(e). He said that
the reason the most recent motions to dismiss and compel had not
been answered was that they had been sent to his former address and
not to a new one identified by him in May 2001 in an informative
motion. Counsel also offered explanations for the rescheduling of
the depositions and said that he had already given the defense in
March 2002 all of the Johns Hopkins documents he could obtain.
The defendants filed an opposition to the Rule 59 motion,
arguing on the basis of circumstantial evidence that Arroyo's
counsel had likely received the motions at his old address. The
oppositions also quarreled in detail with counsel's ameliorating
explanations for the deposition delays. The defense also asserted
that the Johns Hopkins documents were still incomplete. On
November 18, 2002, the district court denied the motion without
opinion, making no findings on any of the disputed points (e.g.,
-8-
whether counsel had received the motions), and this appeal
followed.
The cases commonly say that a dismissal for failure to
comply with scheduling orders is tested on appeal under an abuse of
discretion standard. E.g., Tower Ventures, Inc. v. City of
Westfield, 296 F.3d 43, 46 (1st Cir. 2002). Strictly speaking,
this test applies primarily to the overall balancing of
considerations pro and con, such as the extent and repetitive
character of the defaults, deliberateness, prejudice to the
opposing party, adequate warning, and a range of similar common
sense concerns. See Robson v. Hallenbeck,
81 F.3d 1, 2-3 (1st Cir.
1996).
In this case, we are concerned primarily with a judgment
call but one that rests in substantial measure on disputed
assumptions of facts; indeed, appellants' main attack is primarily
upon those assumptions. If there are pertinent factual findings
underpinning a dismissal or pure issues of law raised by the
appeal, these issues are tested by the ordinary standards
(respectively, clear error and de novo review). See Cameron v.
Otto Bock Orthopedic Indus., 43 F.3d 14, 16 (1st Cir. 1994).
In dismissing the case, the district court's initial
judgment was surely colored by the failure of Arroyo's counsel to
respond to the final motions to dismiss or compel. Yet there
appears to be no dispute that Arroyo's counsel had moved his office
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and had provided notice, and that, according to their respective
certificates of service, the motions in question were mailed to the
wrong address. In the Rule 59 motion, Arroyo's counsel flatly
denied receiving them; the defendants in response offered some
inference evidence to the contrary,5 but no explicit findings were
made by the district court.
If counsel did receive the papers and failed to answer,
this last straw after a history of delays would be fatal. Yet on
this record we cannot ourselves conclude that he did receive the
documents and we are unwilling to impute such a finding to the
district judge based on her summary denial of Arroyo's Rule 59
motion; sometimes an implicit finding is obviously intended or
inferable but in this case it would have been hard to resolve the
dispute without an evidentiary hearing. Yet, it is not clear that
the counsel's failure to respond to the defendants' motions was
intended by the judge as a specific reason for the dismissal.
Based on the dismissal order, the district judge may have
been principally concerned with the failures as to deposition
5
Defendants claim that at least some of the correspondence
that they sent to the wrong address was received by plaintiffs'
counsel, as evidenced by a deposition notice that they sent to
counsel's old address on May 22, 2002, and which counsel
subsequently forwarded on to Dr. Talamini on May 29, 2002.
Defendants also claim that none of the motions were returned to
them as undeliverable. In addition, counsel for defendant Martinez
filed an affidavit from his secretary, in which the secretary says
that the August 2002 motion to request an extension of time for
notifying expert witnesses was in fact sent to the correct address
despite the wrong address appearing on the certificate of service.
-10-
scheduling and document production that her dismissal order had
identified. And, conceivably, the judge found the explanations
given by Arroyo's counsel in the Rule 59 motion to be inadequate to
excuse these scheduling and production gaffes and, against the
background of prior delays, found this enough to justify the
dismissal--whether or not counsel's failure to answer the motions
was excusable.
If all of the district court's expressed concerns as to
scheduling and production were borne out by supportable findings or
even by record evidence identified by the defendants, we would
affirm. Given the record of delays by plaintiffs' counsel and the
court's clear warning on February 14, 2002, three post-warning
defaults would be enough to justify the dismissal, severe though
the sanction would be. But, once again, the situation is more
complicated than appears on the surface.
The weakest of the charges–-at least on this record--is
that Arroyo's counsel violated the court's scheduling order by
failing to produce Dr. Talamini for deposition on June 27, 2002.
The court's dismissal order said that at the February 14, 2002,
conference, "[p]laintiffs were [] ordered to arrange for the
depositions of two of their experts [Drs. Talamini and Brunet] on
May 14, 2002 and June 27, 2002, respectively." On appeal, Arroyo
objects that there was no formal order to this effect; rather,
-11-
along with other formal orders, the "minutes of proceedings" simply
list the depositions and dates.
With or without a formal order, the minutes reflect the
schedule as an understanding of the court and the parties; thus, an
unjustified failure to carry through could reasonably be
sanctioned. The difficulty is that Dr. Talamini was not an expert
witness biddable by plaintiffs' counsel but, at least by 2002,
merely a fact witness designated by Arroyo. Ordinarily, it would
be defense counsels' job to subpoena such a witness for deposition.
Here, defendants seem to be arguing that Arroyo's counsel had
represented to them that he could produce Dr. Talamini on the
specified date and then failed to carry through.
In his Rule 59 motion, Arroyo's counsel explained (and
the record confirms) that he had had great difficulty in getting
the doctor to cooperate. However, whether Arroyo's counsel made
commitments or representations that he should not have made and
could not keep is much less clear. Without that, defendants do not
get very far by blaming Arroyo's counsel for failure to move
promptly after the February conference to nail down Dr. Talamini's
agreement to appear. There are no findings by the district court
on this issue.
As to Dr. Brunet, he was an expert witness for Arroyo, so
Arroyo's counsel had a responsibility to produce him for the
scheduled deposition listed in the court's order, cf. Barrett v.
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Atl. Richfield Co., 95 F.3d 375, 380-81 (5th Cir. 1996), but it is
common ground that the doctor failed to appear because he had to
undertake an emergency surgery on the deposition date–-obviously
something over which counsel had no control. The defense says that
the deposition should have been rescheduled more quickly (it
finally occurred on August 1, 2002) but it is hard to tell without
findings how far the re-scheduling delay was counsel's fault and
how far due to the doctor's own commitments.
The Johns Hopkins records are a different story. Here,
it is undisputed that Arroyo's counsel undertook to produce them,
was ordered finally to do so by the court within 30 days of
February 14, 2002, under threat of sanction, and never managed to
produce the complete set.6 So far as we can tell, counsel never
should have subjected himself to such a commitment; Arroyo did not
control the records directly and it would probably have been enough
for her counsel to provide a written release from her and leave it
to the defense to depose Johns Hopkins and secure the records from
it.
This is only partial mitigation. Arroyo's counsel could
not promise to secure the records, fail to protest about the
6
Indeed, it appears that he had earlier been directed by court
order of July 17, 2001, to produce the records within thirty days.
Between July 17, 2001, and February 14, 2002, plaintiffs' counsel
apparently failed to produce any additional documents. On March
13, 2002, he produced some, but not all of the missing records, but
the extent of the remaining deficiency has never been addressed by
the district court.
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obligation or time limits, and then excuse the failure to comply by
saying he had done his best. Nor is it an answer that, after the
dismissal, Arroyo's counsel said that his client had a year earlier
provided the defense with a general release granting access to her
hospital records. Still, there is no finding that Arroyo
ultimately failed to produce any documents that he reasonably could
have or even that there presently exist any documents that Arroyo
has failed to produce.
Finally, the district court relied upon a background of
prior delinquencies: "[t]he record is plagued with instances of
non-compliance by plaintiffs and their attorney with discovery
deadlines and Court's Orders." On appeal, Arroyo's appellate
counsel makes little attempt to challenge this characterization
beyond saying that the district court did not seriously sanction
earlier defaults. Given that there were earlier defaults as to
deadlines, this cuts more against Arroyo's position than in favor.
Our own unaided review of the record suggests that
Arroyo's counsel was regularly in default on small items;7 and, on
7
For example, Arroyo's counsel was late in filing a response
to defendants' motion that plaintiffs be required to post a non-
resident bond, and when the court finally did order the plaintiffs
to post a bond, plaintiffs posted it late. Counsel also failed to
answer defendants' May 18, 2001, motion that the district court
reconsider its decision on one of their previous motions to
dismiss--this failure to respond prompted the district court to
order the plaintiffs to show cause why the case should not be
dismissed for lack of prosecution--plaintiffs finally filed their
response on June 25, 2001. See also note 6 above.
-14-
one occasion, he failed to appear for a scheduled pretrial
conference, saying that his calendar was faulty. Further, counsel
was guilty of failures to meet discovery deadlines, seek necessary
extensions, or even respond in timely fashion to defendants'
filings.
Ordinarily, we would affirm the dismissal where, as in
this case, the plaintiff's counsel had a history of missed
deadlines and delays, was given a clear last chance warning and
defaulted again–-here by the failure to produce all of the Johns
Hopkins records. This is so even though Arroyo may well have a
serious medical malpractice claim, prejudice to the defendants from
the delay is unspecific, and the two doctors in question have now
been deposed. Trial courts cannot manage their heavy case loads
unless appeals courts back them up against an attorney's disregard
of deadlines.
But in this instance three of the charges against
plaintiffs' counsel (failure to answer the motions and the two
delayed depositions) are simply insupportable without fact findings
that have never been made; the fourth charge (Johns Hopkins
records) is borne out but involves partial compliance (perhaps as
much as was possible). What remains is only the charge that
Arroyo's counsel regularly missed deadlines, but it is not clear
that much that occurred after February 14, 2002, made the situation
worse.
-15-
Despite the denial of the Rule 59 motion, we are far from
clear that the district court would have exercised its discretion
to dismiss if–-as may be the case-–(1) Arroyo's counsel never
received the motions because defense counsel sent them to the wrong
address, (2) the court concluded that Arroyo's counsel was not at
fault as to the deposition delays, and (3) the extent of counsel's
efforts to secure the missing Johns Hopkins records were known.
Accordingly, because the dismissal rests on at least
three unsupported premises and some uncertainty attends the fourth,
we think it prudent to remand for further consideration. Without
limiting the scope of the district court's authority, we note
several options that are available. The most obvious, if the
district court is so disposed, is to determine whether the
plaintiffs' counsel did receive the defense motions and failed to
answer, or was significantly at fault as to the scheduling of
depositions. An affirmative supportable answer as to either would
in our view adequately support the dismissal.
Alternatively, the district court is free to conclude
that these excavations into past history are more trouble than they
are worth and to lay down strict conditions for the future conduct
of the case. These could include limitations on plaintiffs' proof
or recovery if past delays have provably handicapped the defense;
ample latitude for the defense to complete their own discovery and
-16-
preparations; and a very tight rein on whichever counsel ends up
representing the plaintiffs in the district court.
Neither side has covered itself in glory in this case.
If the district judge does end up dismissing the claim, as she may,
Arroyo is well warranted in converting her medical malpractice
claim into one for possible legal malpractice. As for the defense,
it has admittedly been abused by the toleration of past delays by
Arroyo's counsel; but if defense counsel had sent the motions to
the right address and so indicated on their certificates, the
present uncertainty would likely have been sorted out by now and
greatly simplified this appeal.
The judgment of dismissal as to Hospital Hermanos
Meléndez, Inc., Dr. Juan Martinez-Rodriguez, and Dr. Jesús Seda-
Ramírez is vacated and remanded for further proceedings consistent
with this opinion. This vacation does not reflect the dismissal of
the claims against Dr. Olga Rodríguez-Rivera, from which plaintiffs
have not appealed. Each side shall bear its own costs on this
appeal.
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