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

United States Court of Appeals

For the First Circuit

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
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SHADUR, Senior District Judge. Carmen Gloria Santos

Espada (“Santos”) brought this diversity-of-citizenship action

against Dr. Jaime Cancel Lugo, claiming that Dr. Cancel had

committed medical 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

granted on statute of limitations grounds, and the action was

therefore dismissed. Santos appeals, and we reverse the district

court's judgment and remand 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 (Andrade 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
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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 find in favor of

the plaintiff[ ] on any permissible claim or theory.” If instead

fair-minded persons 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 advised about 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

some swelling of her right arm. Dr. Cancel told her that it was

nothing. During other July appointments Dr. Cancel never mentioned

the possibility of swelling or lymphedema to Santos. 
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In November 1997 Santos was told that she had lymphedema

by a doctor 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 meantime she had

communicated with the National Lymphedema Network in 1997,

receiving some information about lymphedema.

On July 21, 1999 oncologists at the Veterans Hospital in

Tampa, Florida first informed Santos that the procedure used for

her intraductal carcinoma, the modified radical mastectomy, was not

the recommended procedure. Those physicians also identified the

modified radical mastectomy and removal of the 14 lymph nodes as

the reason for the development of the lymphedema.

On May 30, 2000 Santos filed a complaint alleging medical

malpractice in the course of the May 27, 1997 surgery. Trial by

jury began on July 16, 2001. When Santos rested her case, Dr.

Cancel moved for 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 evidentiary

burden in her case in chief. In a July 17 order (Santos Espada v.

Cancel Lugo, 165 F. Supp. 2d 76 (D.P.R. 2001)) the District Court

dismissed the 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 axillary contents of 14 lymph nodes may not
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have been 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 satisfy her evidentiary

burden.

Statute of Limitations Considerations

This diversity action looks to the Puerto Rico Civil

Code, which sets a one-year statute of limitations 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 injury 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 injury occurs 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
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notice of her injury at the latest by November 1997, when the

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 injury in 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 effects 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
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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 (see, 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 can begin to run not simply

when a claimant gains “actual knowledge” but at an earlier date

when “by due diligence, such knowledge 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

filed beyond the one-year statutory term, plaintiff bears the

burden of proving timeliness by establishing that she lacked the

necessary knowledge 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 whether the

plaintiff has exercised reasonable diligence is typically given to

the jury, “even where no raw facts are in dispute,” because “the

issues of due diligence and adequate knowledge are still ones for

the 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 plaintiff’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 trial testimony of Santos' expert witness Dr.

Robert De Jager (a specialist whose extensive curriculum vitae,

included in the record on 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) expert

report (included in the pretrial order in the case).

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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

removed and that her right arm was swelling. But she was promptly

reassured by Dr. Cancel, the surgeon who had performed the surgery,

that the swelling in her arm was nothing and that the incision

looked good. 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 Lymphedema Network

and by meeting with other doctors in her attempt to discover the

cause of her lymphedema.1
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Lymphedema is a possible outcome any time a lymph node is

removed, and it is thus a common side effect from breast 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 recommended practice) 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

triggered further 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

did not have to find that the statute barred her claim. It is

worth stressing that on somewhat different facts, an unexpected

adverse consequence from an operation could well be sufficiently

suspicious that a plaintiff would have to pursue that possibility

diligently at the risk of being barred by the statute of

limitations.
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We should not be misunderstood as signaling 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 determine 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

July 21, 1999 is less than one year before the May 30, 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

justify submission 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 determination of that

issue by the district court on remand is called for.
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Conclusion

We therefore REVERSE the order of the district court

granting Dr. Cancel’s Rule 50(a) motion for judgment as a matter of

law. We REMAND the case to the district court for further

proceedings in light of this opinion.