* Of the Northern District of Illinois, sitting by designation.



# United Stat es Court of Appeals

For the First C ircuit

No. 01-2296 CARMEN GLORIA SANTOS ESPADA, Plaintiff, Appellant,

v. JAIME CANCEL LUGO, Defendant, Appellee, C/P CANCEL-DOE; HOSPITAL PAVIA,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Jaime Pieras, Jr., Senior District Judge ]

Before Boudin, Chief Circuit Judge , Lynch, Circuit Judge , and Shadur, * Senior District Judge

Alexander H. Bopp , with Ernesto G. López Soltero on brief, for appellant. Mirta E. Rodriguez-Mora for appellee.

December 2, 2002-2- SHADUR, Senior District Judge . Carm en Gl oria Santos Espada (“Santos”) brought this diversity-of-citizenship action against Dr. Jaime Cancel Lugo, claiming that Dr. Cancel had committedmedical malpractice under Article 1802 of the Puerto Rico Civil Code. Santos contends that Dr. Cancel acted negligently in performing a modified radical mastectomy that included the excision of 14 lymph nodes, causing lymphedema in her right arm.

When the case went to trial, Dr. Cancel moved under Fed. R. Civ. P. ("Rule”) 50(a) for judgment as a matter of law when Santos had completed her proofs and rested. That motion was grantedon statute of li mitations grounds, and the action was therefore dismissed. Santos appeals, and we reverse the district court's judgment an d r emand for further proceedings in light of this opinion. Standard of Review

We review the grant of a Rule 50(a) motion for judgment

as a matter of law de novo, using the same standards as the district court ( An dra de v. Jamestown Hous. Auth. , 82 F.3d 1179, 1186 (1st Cir. 1996)). All of the evidence and reasonable inferences drawn from the evidence are thus considered in the light most favorable to nonmovant Santos ( id .), and we take that approach in the Facts discussion below.

As for the legal standard to be applied to the facts, Andrade , id . (internal quotation marks omitted) spoke in terms of-3-

the older Rule 50(a) “directed verdict” language (which embodied the same concept) to teach that a “verdict may be directed only if the evidence, viewed from this perspective [most favorable to the nonmovant], would not permit a reasonable jury to findin favor of the plaintiff[ ] on any permissible claim or theory.” If instead fair-minde dpers ons could draw different inferences from the evidence presented at trial, the matter is for the jury ( Santiago Hodge v. Parke Davis & Co. , 909 F.2d 628, 634 (1st Cir. 1990)). Facts On May 27, 1997 Santos underwent a right modified radical mastectomy, performed by Dr. Cancel at Hospital Pavia in San Juan, Puerto Rico. That procedure included the removal of remaining breast tissue, as well as the axillary contents of 14 lymph nodes that were free of tumor. Santos was never warned of the risks of removing those axillary contents or of the effects that such a procedure may have, nor was she advis ed abo ut the appropriate

measures to take regarding her arm. Approximately a week after surgery, Dr. Cancel told Santos that 14 lymph nodes had been removed during surgery.

In July 1997 Santos visited Dr. Cancel to inquire about

s ome swelling of her right arm. Dr. Cancel told her tha t it wa s nothing. During other July appointments Dr. Cancel never mentioned the possibility of swelling or lymphedema to Santos.-4- In November 1997 Santos was told that she hadlymphedema bya d octo r in a Florida hospital. Santos began treatment for lymphedema by December 1997. Next Santos met with a lymphedema specialist in April or May 1998. In the meantim e she had communicatedwith the National Lymphedema Network in 1997, receiving some information about lymphedema.

On July 21, 1999 oncologists at the Veterans Hospital in Tampa, Florida first infor med Sa ntos that the procedure used for her intraductal carcinoma, the modified radical mastectomy, was not the re comm ended procedure. Those physicians also identified the modifiedradical mastectomy and removal of the 14 lymph nodes as the reason for the development of the lymphedema.

On May 30, 2000 Santos fileda complaint alleging medical malpractice in the course of the May 27, 1997 surgery. Trial by jurybegan on July 16, 2001. When Santos rested her case, Dr. Cancel mov ed fo r dismissal of the action under Rule 50(a) on the grounds that the cause of action was time-barred and, alternatively, that Santos had failed to satisfy her e vide ntiary burden in her case in chief. In a July 17 order ( Santos Espadav. Cancel Lugo , 165 F. Supp. 2d 76 (D.P.R. 2001)) the District Court dismissedthe action with prejudice by finding that Santos knew of her injury as early as 1997 or 1998 and also that Santos “should have known during the course of her treatment for lymphedema that the excision of the axillarycontents of 14 lymph nodes may not-5-

have b een necessary given the nature of [Santos’] breast cancer” ( id . at 78). That order did not address Dr. Cancel's other Rule 50(a) argument that Santos had failed to sat isfy h er evidentiary burden. Statute of Limitations Considerations

This diver sity action looks to the Puerto Rico Civil Code, which sets a one-year statute of limit ati ons for personal injury claims (31 P.R. Laws Ann. §5298(2); see also Ramos-Baez v. Bossolo-Lopez , 240 F.3d 92, 93 (1st Cir. 2001)). That one-year time clock begins to tick on the day after the date of accrual of the claim ( Carreras-Rosa v. Alves-Cruz , 127 F.3d 172, 175 (1st Cir. 1997)(per curiam)). Because Santos filed suit on May 30, 2000, its timeliness therefore depends on a date of accrual no later than May 30, 1999.

For accrual purposes, the injured person must have both notice of her i njury and knowledge of the likely identity of the tortfeasor ( Tokyo Marine & Fire Ins. Co. v. Perez y Cia. de Puerto Rico, Inc. , 142 F.3d 1, 3 (1st Cir. 1998)). We therefore examine when both of those elements were present in this case.

Notice of an injuryoccurs when there “exist some outward

or physical signs through which the aggrieved party may become

aware and realize that [s]he has suffered an injurious aftereffect” ( Kaiser v. Armstrong World Indus., Inc. , 872 F.2d 512, 516 (1st Cir. 1989), quoting Puerto Rico authorities). Santos gained such-6-

notice o f her injury at the latest by November 1997, when th e swelling in her arm was diagnosed as lymphedema.

But such a diagnosis of lymphedema is not necessarily sufficient for knowledge that a tortfeasor was involved as well. Colon Prieto v. Geigel , 115 P .R. Dec. 232, 15 P.R. Offic. Trans. 313 (1984) teaches that “not only must the aggrieved person know that [s]he has been injured; [s]he must know who is the author of the injuryin order to address the action against him, so [s]he may know who to sue” ( 15 Offic. Trans. at 330)(internal quotation marks omitted; emphasis in original). And Galarza v. Zagury , 739 F.2d 20, 24 (1st Cir. 1984) has read Colon Prieto as making “clear that knowledge of the author of the harm means more than an awareness of

some ill ef fects resulting from an operation by a particular doctor .” From that it follows that ( Rodriguez-Suris v. Montesinos , 123 F.3d 10, 13-14 (1st Cir. 1997)): 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. It was only when Santos knew that the lymphedema may have been caused by an improper surgical procedure that she also had actual knowledge of the possibility that Dr. Cancel was the author of her injury--that is, enough to provide a causal nexus between Dr. Cancel's conduct and the injury. That knowledge came on July 21, 1999, when Santos first learned that Dr. Cancel's removal of 14 lymph nodes was not a recommended procedure. And that knowledge-7-

that Dr. Cancel had increased the likelihood of Santos developing lymphedema meant that the injury could be considered a tort rather than an expected side effect ( se e , e.g. , Villarini-Garcia v. Hospital Del Maestro, Inc. , 8 F.3d 81, 85-87 (1st Cir. 1993); Galarza , 739 F.2d at 21-24).

But the limitations period c an beg in to run not simply when a claimant gains “actual knowledge” but at an earlier date when “by due diligence, such know ledge would likely have been acquired” ( Rodriguez-Suris , 123 F.3d at 16, quoting Villarini-Garcia , 8 F.3d at 84). In cases where a tort claim is filedbeyond the one-year statutory term, plaintiff bears the burden of proving timeliness by establishing that she la cked the

neces s aryknowledge or imputed knowledge before instituting the action ( Torres v. E.I. DuPont de Nemours & Co. , 219 F.3d 13, 19 (1st Cir. 2001)). And for that purpose the question whet her the plaintiff has exercisedreasonable diligence is typically given to the jury, “even where no raw fac ts ar e in dispute,” because “the issues of due diligence and adequate knowledge are still ones for th e jury so long as the outcome is within the range where reasonable men and women can differ” ( Villarini-Garcia , 8 F.3d at 87). Moreover, the statute of limitations can be tolled “[i]f

a p laintiff’s suspicions that she may have been the victim of a tort are assuaged by the person who caused the injury” ( Rodriguez-1 Because the tri al testimony of Santos' expert witness Dr.

Robert De Jager (a specialist whose extensive curriculum vitae, includedin the recordon appeal, reflects credentials that support the district court's Fed. R. Evid. 702 admission of his testimony as an expert), has not been transcribed for inclusion in the appellate record, what is said hereafter in this opinion regarding lymphedema is drawn from Dr. De Jager's Rule 26(a)(2)(B) ex per t report (included in the pretrial order in the case). -8- Suris , 123 F.3d at 16, citing Colon Prieto , 15 P.R. Offic. Trans. at 329-30). Finally, such tolling may be halted by further information that renders plaintiff’s reliance on those assurances no longer reasonable, so that plaintiff then has an obligation of diligent investigation ( Rodriguez-Suris , 123 F.3d at 17).

How do those principles play out in this case? Santos knew shortly after the operation that 14 lymph nodes had been removedand that her right arm was swelling. But she was promptly reassuredby Dr. Cancel, the surgeon who had performed the surgery, that the swelling in her arm was nothing andtha t the incision lookedgood. Consequently Santos was initially entitled to rely on the analysis from her doctor that the operation had been performed properly. Because the swelling persisted, however, Santos continued her investigation and discovered that the swelling in her arm was lymphedema. It would surely be permissible for a jury to find that Santos was diligent in her investigation of the cause of her lymphedema by communicating with the National Lymphede ma N etwork andby meeti ng wi th other doctors in her attempt to discover the cause of her lymphedema. 1-9- Lymphedema is a possible outcome any time a lymph node is removed, and it is thus a common side effect from breas t cancer surgery. Lymphedema can stem from the removal of lymph nodes from

a radical mastectomy, either from a single lymph node (as Santos claims is conventional and recommend ed p ractice) or from the removal of as many as 14 lymph nodes (as occurred in this case). Hence a jury could reasonably conclude that Santos’ investigation into the cause of the lymphedema would not necessarily have triggeredfurther inquiry as to whether the excision of 14 lymph nodes was actionably wrongful. Here Santos clearly knew more than one year before the suit

was filed that a serious and persistent affliction had followed her surgery and that Dr. Cancel was responsible for the surgery. But lymphedema can occur after properly done surgery, and Santos had no

reason to know or suspect, until she was so told on July 21, 1999, that less radical surgery had been a reasonable and less risky alternative--or so the jury could permissibly conclude--so the jury didnot have to findthat the s tatute barred her claim. It is worth stressing that on somewhat different facts, an unexpected adverse consequence from an operat ion could well be sufficiently suspicious that a plaintiff would have to pursue that possibility diligentlyat the risk of being barred by the statute of limitations.-10- We should not be misunderstood as sign alin g the actual outcome of the necessary factual inquiry. It is rather that Santos is entitled to the benefit of her version of events in resisting a Rule 50(a) judgment as a matter of law. And on that version a reasonable factfinder could deter mine that Santos, despite the exercise of due diligence in investigating and treating her lymphedema, obtained the requisite knowledge only when she learned of Dr. Cancel's possible malpractice on July 21, 1999. Because July21, 1999 is less than one year before the May30, 2000 date of filing, Santos' claim is not barred by limitations as a matter of law. Santos' Appellate Relief

As stated earlier, Dr. Cancel's Rule 50(a) motion at the conclusion of Santos' case in chief was predicated not only on limitations grounds but on a claimed failure of proof sufficient to justifysu bmiss ion to the jury. From Dr. De Jager's report (see n.1) there may well have been enough evidence to support such submission, but the district judge did not reach that issue, and it has not been briefed before us. Hence a determi nati on of that issue by the district court on remand is called for.-11- Conclusion We therefore REVERSE the order of the dist rict court granting Dr. Cancel’s Rule 50(a) motion for judgment as a matter of law. We R EMAND the case to the district court for further proceedings in light of this opinion.