United States Court of Appeals

For the First Circuit

No. 19-1450

LUIS GONZÁLEZ-CABÁN; BRAULIO GONZÁLEZ-REYES; JENNIFER GONZÁLEZMALDONADO; ARLENE GONZÁLEZ-SOTO,

Plaintiffs, Appellants,

v.

JR SEAFOOD INC.; PACKERS PROVISIONS OF PUERTO RICO INC.; PUERTO 

RICO MISCELLANEOUS INSURANCE GUARANTY ASSOCIATION, AS SUCCESSOR 

IN INTEREST OF INTEGRAND INSURANCE COMPANY; COOPERATIVA DE 

SEGUROS MÚLTIPLES DE PUERTO RICO; EVARISTO RIVERA-BERRIOS, d/b/a

El Nuevo Amanecer,

Defendants, Appellees,

RAMÓN GUTIÉRREZ, d/b/a GB Trading,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpí, Jr., Chief U.S. District Judge]

Before

Barron, Chief Judge,

Lynch and Lipez, Circuit Judges.

Jaime F. Agrait Lladó, with whom Blanca E. Agrait-Lladó, 

Francisco Agrait-Oliveras, and Agrait-Lladó Law Firm were on 

brief, for appellants. 

Jeannette Lopez de Victoria, with whom Nuyen Marrero-Bonilla
and Sánchez Betances, Sifre & Muñoz Noya, P.S.C. were on brief,

for Evaristo Rivera-Berrios d/b/a El Nuevo Amanecer and 

Cooperativa de Seguros Múltiples de Puerto Rico, appellees.

Igor J. Domínguez, with whom Igor J. Domínguez Law Offices, 

P.S.C. was on brief, for Puerto Rico Miscellaneous Insurance 

Guaranty Association in the interest of Packers Provisions of 

Puerto Rico Inc., appellee.

Miriam González Olivencia, with whom Law Offices of Miriam 

González Olivencia was on brief, for Puerto Rico Miscellaneous 

Insurance Guaranty Association in the interest of JR Seafood, Inc., 

appellee. 

September 2, 2022
- 3 -

LIPEZ, Circuit Judge. Luis González-Cabán alleges that 

he contracted paralytic shellfish poisoning ("PSP") after eating 

a contaminated shrimp at a restaurant in Puerto Rico. Along with 

several members of his family, he sued the restaurant and the food 

distributors who handled the shrimp before it reached the 

restaurant, arguing that their negligence caused his severe 

illness. The district court granted summary judgment to the

defendants, concluding that González-Cabán had not sufficiently 

established that any of their acts or omissions had proximately 

caused his illness. We affirm.

I.

We draw the relevant factual background from the 

pleadings and other record materials, "recount[ing] the facts and 

draw[ing] all reasonable inferences in the light most favorable 

to" appellants. Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 156 

(1st Cir. 1998). 

On February 19, 2005, González-Cabán ate at Restaurante 

El Nuevo Amanecer in Barranquitas, Puerto Rico. He ordered an 

appetizer platter that included jumbo shrimp. After biting into 

a piece of shrimp, González-Cabán recalled "a feeling of stinging 

and numbness." Shortly thereafter, he "started developing 

problems with [his] breathing" and "[his] heart started pounding." 

He drove home but was later taken to the hospital in an ambulance, 

unconscious. 
- 4 -

 During his hospitalization, González-Cabán suffered 

from numerous additional symptoms, including "severe hypotension," 

"acute renal failure secondary to acute tubular necrosis," and 

"weakness and paresthesia." He eventually developed complete 

quadriplegia, which remains to this day. After sixteen days, 

González-Cabán was discharged from the hospital with several 

"principal diagnoses," including Guillain-Barré syndrome, cervical 

myelopathy, and quadriparesis, and several "secondary diagnoses," 

including prerenal azotemia and sacral erosion.

These symptoms are consistent with PSP, which humans may 

contract by consuming food products contaminated with saxitoxin, 

a naturally occurring substance that can accumulate in the gut or 

flesh of shellfish and crustaceans and that can "pose a significant 

food safety risk to humans who eat them, either raw or cooked." 

Symptoms of PSP may include "numbness or tingling in the face, 

lips, tongue, and extremitie[s] . . . . headache, fever, rash, 

nausea, and vomiting, with impaired coordination, changes in 

mental status, incoherent speech, and difficulty in swallowing, 

flaccid paralysis, and respiratory failure in severe cases."

The parties have attempted to trace the origin of the 

shrimp consumed by González-Cabán in February 2005, and the record 

evidence supports the following timeline. The shrimp was harvested 

in freshwater in India, was designated as "size U-5", and was sold 
- 5 -

by a company named Calcutta Seafoods.1 In August 2004, the shrimp 

was received in Newark by Sterling Seafood Corporation. 

Subsequently, JR Seafood purchased 816 boxes of U-5 freshwater 

shrimp from Seafood Sales, Inc.2 JR Seafood then sold 150 boxes 

of U-5 freshwater shrimp to Packers Provisions of Puerto Rico, who 

sold two boxes to GB Trading. GB Trading then sold one box of U5 shrimp to El Nuevo Amanecer in December 2004, about two months 

before González-Cabán dined there.3 

In 2014, González-Cabán and his family members 

(hereafter, "González-Cabán") filed an action in federal court

against El Nuevo Amanecer and its insurer, Cooperativa de Seguros 

Múltiples de Puerto Rico; JR Seafood and Packers Provisions, which 

were both insured by Integrand Assurance Company; and GB Trading.4 

1 "U-5" is a size designation that appears to correspond to a 

shrimp weighing approximately 3.2 ounces.

2 There appears to be documentation in the record of a transfer 

from Sterling Seafood to Seafood Sales, though its relevance is 

unclear. Regardless, the parties do not dispute that JR Seafood 

received a shipment of 816 boxes of U-5 freshwater shrimp in August 

2004 that originated in India. 

3 JR Seafood and Packers Provisions dispute that the shrimp 

they distributed is the same shrimp consumed by González-Cabán. 

At this stage, we recount the evidence in the record concerning 

the shrimp's origin in the light most favorable to González-Cabán. 

Moreover, because, as explained below, we affirm the district 

court's grant of summary judgment as to the food distributors on 

other grounds, we need not delve into this factual dispute. 

4 Integrand was liquidated in 2019 and the Puerto Rico 

Miscellaneous Insurance Guaranty Association now insures JR 

Seafood and Packers Provisions. GB Trading is not a party on 
- 6 -

The complaint alleged that González-Cabán suffered from PSP (also 

referred to as "saxitoxin intoxication") from consuming shrimp at 

El Nuevo Amanecer, and that this illness was caused by the 

defendants' negligent failure to trace the origin of, inspect, or 

properly clean the shrimp.5

After the defendants moved for summary judgment, the 

district court concluded that González-Cabán had failed to present

sufficient evidence to establish that his illness could be 

connected to an act of or omission by the defendants. The court 

therefore granted summary judgment in the defendants' favor.

González-Cabán filed a motion to reconsider, alter, or amend the 

judgment, which the district court denied. This appeal timely 

followed.6

appeal. We refer to the restaurant and its insurer collectively 

as "El Nuevo Amanecer" or "the restaurant." 

5 The complaint initially included strict liability claims. 

These claims were dismissed after the Puerto Rico Supreme Court, 

on certification from the district court, concluded that naturally 

contaminated food (i.e., food contaminated without "human 

intervention") does not trigger strict liability. González Cabán

v. JR Seafood, 199 D.P.R. 234 (2017). 

6 In his briefing on appeal, González-Cabán makes no argument 

concerning the district court's denial of his motion for 

reconsideration. We therefore only address the summary judgment 

disposition. 
- 7 -

II.

A. Standard of Review 

We review a district court's grant of summary judgment

de novo. Lawless v. Steward Health Care Sys., LLC, 894 F.3d 9, 21 

(1st Cir. 2018). As this case arises in diversity jurisdiction, 

"we must apply state substantive law to assess whether summary 

judgment is appropriate." López-Santos v. Metro. Sec. Servs., 967 

F.3d 7, 11 (1st Cir. 2020).

In considering the arguments on appeal, "we must 

'constru[e] the record in the light most favorable to the nonmoving party and resolv[e] all reasonable inferences in that 

party's favor.'" Miller v. Sunapee Difference, LLC, 918 F.3d 172, 

176 (1st Cir. 2019) (alterations in original) (quoting Pierce v. 

Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014)). "Summary 

judgment is appropriate when 'there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a 

matter of law.'" Feliciano-Muñoz v. Rebarber-Ocasio, 970 F.3d 53, 

62 (1st Cir. 2020) (quoting Fed. R. Civ. P. 56(a)). In opposing 

a motion for summary judgment, the plaintiff "bears 'the burden of 

producing specific facts sufficient to'" defeat summary judgment. 

Theidon v. Harvard Univ., 948 F.3d 477, 494 (1st Cir. 2020) 

(quoting Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st 

Cir. 2003)). 
- 8 -

B. Negligence

González-Cabán's negligence claim, the sole claim at 

issue, is governed by Article 1802 of the Puerto Rico Civil Code. 

To prevail on this claim, González-Cabán must ultimately 

demonstrate "(1) evidence of physical or emotional injury, (2) a 

negligent or intentional act or omission (the breach of duty 

element), and (3) a sufficient causal nexus between the injury and 

defendant's act or omission (in other words, proximate cause)." 

Vázquez-Filippetti v. Banco Popular de P.R., 504 F.3d 43, 49 (1st 

Cir. 2007). 

The breach of duty element requires, at the outset, that 

a plaintiff establish a relevant duty of care. See Woods-Leber v. 

Hyatt Hotels of P.R., Inc., 124 F.3d 47, 50 (1st Cir. 1997). 

Broadly, a duty of care is an "obligation to anticipate and take 

measures against a danger that is reasonably foreseeable." BaumHolland v. Hilton El Con Mgmt., LLC, 964 F.3d 77, 88 (1st Cir. 

2020) (quoting Woods-Leber v. Hyatt Hotels of P.R., Inc., 951 F. 

Supp. 1028, 1036 (D.P.R. 1996), aff'd, Woods-Leber, 124 F.3d at 

47). A defendant's duty of care may be established "(1) by statute 

or regulation; (2) 'as the result of a special relationship between 

the parties that has arisen through custom; or (3) as the result 

of a traditionally recognized duty of care particular to the 

situation.'" Id. (quoting De Jesús-Adorno v. Browning Ferris 
- 9 -

Indus. of P.R., Inc., 160 F.3d 839, 842 (1st Cir. 1998)). The 

existence of a duty of care "is typically a legal question for the 

court." Id. at 91 (quoting Candelario del Moral v. UBS Fin. Servs. 

Inc. of P.R., 699 F.3d 93, 100 (1st Cir. 2012)).

To satisfy the proximate causation element, a plaintiff 

must demonstrate that "(1) the defendant's breach of its duty of 

care [is] the actual cause of the injury suffered by the plaintiff, 

and (2) the injury suffered [was] reasonably foreseeable to the 

defendant." Id. at 88. We note that "[f]oreseeability, in the 

context of causation, cannot 'be established through the simple 

fact that an accident occurred.'" Id. at 89 (quoting VázquezFilippetti, 504 F.3d at 53). 

III.

In determining that González-Cabán failed to meet his 

burden on proximate causation, the district court focused on what 

it perceived to be deficiencies in the medical evidence that 

González-Cabán in fact suffered from PSP due to a contaminated 

shrimp. On our de novo review of the record, we do not see the 

same deficiencies. We would instead conclude that González-Cabán 

proffered sufficient evidence to raise an issue of material fact 

as to the nature of his illness.7 However, it is well accepted 

7 In support of the contention that he suffered from PSP, 

González-Cabán proffered (1) medical records from the treating 

hospital referring to his condition as "shellfish intoxication" 
- 10 -

that our de novo "review [on summary judgment] does not limit us 

to the district court's rationale" and that "we may affirm the 

entry of summary judgment on 'any ground revealed by the record.'" 

Landrau-Romero v. Banco Popular de P.R., 212 F.3d 607, 611 (1st 

Cir. 2000) (quoting Houlton Citizens' Coal. v. Town of Houlton, 

and (2) an expert report explaining that González-Cabán's 

"clinical picture . . . is compatible with paralytic shellfish 

poisoning" and that PSP is "the most probable diagnosis." The

defendants' own medical expert acknowledged that

[t]he initial oral, and later limb, 

dysesthesia reported by the patient, rapid 

onset of diarrhea and vomiting, leading to 

severe dehydration, and the possibility of the 

shrimps consumed being capable of a secondary 

contamination with [s]axitoxin, would be 

compatible with [saxitoxin intoxication]. 

Another supportive argument in favor of the 

[s]axitoxin theory, would also be th[e]

absence of a bacterial, parasite, or organic 

intoxication despite extensive investigations 

during [González-Cabán's] hospitalizations.

The district court faulted González-Cabán for not 

presenting any test results indicating that the shrimp was

contaminated or that he suffered from PSP. But González-Cabán

proffered expert testimony explaining that "the diagnosis of 

saxitoxin intoxication is a clinical diagnosis, not a test 

diagnosis." The defendants' expert concurred, stating that "PSP's 

medical diagnosis is based on observed symptomatology and recent 

dietary consumption." González-Cabán thus produced evidence of 

saxitoxin intoxication that is consistent with the diagnostic 

criteria -- consumption of shrimp, a potential carrier of 

saxitoxin, and the immediate onset of symptoms consistent with 

PSP. The fact that the defendants' expert disagrees with the 

medical conclusion that González-Cabán suffered from PSP is a 

dispute of material fact that would ordinarily be decided by a 

jury. 
- 11 -

175 F.3d 178, 184 (1st Cir. 1999)).8 For the reasons discussed 

below, we ultimately agree with the district court's conclusion

that González-Cabán failed to adequately connect his injury to an 

"act or omission" by the food distributors or by the restaurant, 

albeit for different reasons. We assume, for the purpose of this 

explanation, that González-Cabán did contract PSP from a shrimp 

contaminated with saxitoxin.

A. Duty to Conduct a Safety Investigation

In his briefing to this court, González-Cabán argues

that JR Seafood, Packers Provisions, and El Nuevo Amanecer, as

resellers of food for human consumption, had a duty to "inquire 

about the safety practices of the harvester from whom they are 

obtaining the product, pertaining to the control of contaminants 

at the origin." He argues that it is the duty of all entities in 

the food distribution chain to ensure that necessary safeguards 

are taken, and that, because all defendants failed to perform any 

investigation of the shrimp's origin or of the harvester's safety 

practices before reselling the product, they breached this duty of 

8 González-Cabán appears to suggest that, if we disagree with 

the district court's conclusion regarding the medical evidence, we 

must remand for the district court to consider other aspects of 

the summary judgment record. But, as we have explained, our review 

is not limited to the medical evidence issue, and, in fact, 

González-Cabán discusses issues beyond the medical evidence --

such as duty and causation -- in his briefing to this court (as do 

defendants).
- 12 -

care. This failure, he contends, led to the distribution of the

contaminated shrimp that caused his illness.

As we have noted, "whether a duty exists is typically a 

legal question for the court." Candelario del Moral, 699 F.3d at

100. The parties spend much of their briefing disputing whether 

food distributors and resellers other than the initial domestic 

importer9 have a duty to investigate the harvester's safety 

practices. However, even assuming that such a duty applies to 

food distributors or restaurants who are separated from the 

harvester by several links in the distribution chain, GonzálezCabán has failed to establish the necessary causal link between 

any breach of that duty and his injury. 

Negligent omissions, like those González-Cabán contends 

occurred, "may constitute the proximate cause of an injury if 'in 

all likelihood, verging on a certainty, the injury could have been 

9 U.S. regulations require the domestic importer to verify 

that imported products are not adulterated. The regulations allow 

importers to satisfy this requirement in a variety of ways, 

including by obtaining documentation indicating that the foreign 

processor complies with the Food and Drug Administration's 

monitoring and sanitation requirements, conducting regular 

inspections of foreign facilities, conducting periodic product 

testing, or obtaining documentation from a foreign government or 

third party that the food products are processed according to U.S. 

regulatory standards. 21 C.F.R. § 123.12(ii). González-Cabán 

does not allege negligence by the importer and, further, does not 

proffer any evidence to indicate that entities importing 

freshwater shrimp from India in 2004-2005 would have been routinely 

monitoring for saxitoxin. 
- 13 -

avoided if the action omitted would have been carried out.'"

Blomquist v. Horned Dorset Primavera, Inc., 925 F.3d 541, 549 (1st 

Cir. 2019) (footnote omitted) (quoting Soc. De Gananciales v. G. 

Padín Co., 17 P.R. Offic. Trans. 111, 124 (1986)). In other words,

González-Cabán must demonstrate that "the evidence in the record 

is sufficient to allow a reasonable jury to conclude that, more 

likely than not," Baum-Holland, 964 F.3d at 93, he fell ill because 

of defendants' failure to conduct a safety investigation. 

As the party resisting summary judgment, González-Cabán 

has the burden of demonstrating there is evidence sufficient to 

create a material factual dispute on the issue of causation. 

Theidon, 948 F.3d at 494. But the only evidence he points to 

linking defendants' failure to conduct an investigation of the 

harvester's practices with his injury is the fact of the injury 

itself.10 

Thus, the question is whether a reasonable factfinder 

could find causation based solely on the fact that González-Cabán 

10 Other than an unelaborated reference to the shrimp not 

clearing U.S. customs, González-Cabán does not argue that JR 

Seafood and Packers Provisions violated federal regulations or 

otherwise distributed illegally imported food. It is unclear why 

González-Cabán did not name the U.S. importer or the foreign 

harvester (and any foreign processor, if distinct from the 

harvester) in his suit. The record also does not indicate whether 

González-Cabán attempted any discovery regarding the records or 

safety practices of these entities.
- 14 -

contracted PSP. In other words, the question is whether a 

reasonable factfinder could infer that the original harvester 

engaged in poor safety practices, which would have been revealed 

by an investigation, simply because a shrimp contaminated with 

saxitoxin was harvested, imported, and distributed. Here, the 

evidentiary record does not support such an inference.

González-Cabán's expert, Dr. Paul Goldstein, explained 

that saxitoxin can be detected with 100% accuracy in a water sample

of the harvest waters or in a sample of the product itself using 

an "Enzyme-Linked Immunosorbent Assay" ("ELISA") test. However, 

the record does not indicate whether ELISA tests were commonly 

used by harvesters in 2004, when the shrimp at issue was harvested,

and the parties do not dispute that no regulation, then or now,

requires that harvesters, or other members of the food distribution 

chain, test shrimp for saxitoxin.11 

Given these evidentiary gaps, it would be impossible for 

a factfinder to determine whether an investigation of the 

11 Dr. Goldstein also stated that "[i]n products like shrimp 

the harvester will routinely conduct tests on the water to 

recognize usual contaminants like bacteria" and that 

"cyanobacteria produce saxitoxin and bacterial control helps 

prevent the toxin." These statements, however, fall short of 

creating a genuine factual issue as to whether shrimp harvesters 

routinely conducted testing for cyanobacteria in 2004. Moreover,

these general statements do not, in and of themselves, support a 

reasonable inference that testing for bacteria is more likely than 

not to prevent saxitoxin contamination of shrimp. 
- 15 -

harvester's practices by JR Seafood, Packers Provisions, or El 

Nuevo Amanecer would have prevented González-Cabán's injury. A 

finding of causation on this record would be entirely 

speculative.12 We therefore must affirm the district court's grant 

of summary judgment. See Baum-Holland, 964 F.3d at 93 ("'[A] mere 

possibility of . . . causation is not enough; and when the matter 

remains one of pure speculation . . .' summary judgment [for 

defendants] is appropriate." (quoting Ricci v. Alt. Energy, Inc., 

211 F.3d 157, 162 (1st Cir. 2000))); see also Vázquez-Filippetti, 

504 F.3d at 53 (noting with approval the district court's 

conclusion in Woods-Leber that "foreseeability, as an element of 

proximate cause, could not be established through the simple fact 

that an accident occurred").

B. Waived Claims

González-Cabán also contends that the restaurant was 

negligent for failing to properly clean the shrimp before serving 

them. However, in his briefing, González-Cabán concentrates 

almost entirely on the purported duty of defendants -- including 

12 This rationale applies equally if we accept GonzálezCabán's argument that our appropriate focus should be

contamination in general rather than, specifically, saxitoxin

contamination. Without clear evidence about shrimp harvester or 

importer practices in 2004, for example, we cannot infer that an

investigation of the harvester's safety practices would have

prevented González-Cabán's injury.
- 16 -

the restaurant -- to conduct a safety investigation of the 

harvester's practices. He devotes only two sentences in his 

opening brief to the claim that the restaurant failed to properly 

clean the shrimp, and he makes no effort to establish a relevant 

duty or actual cause -- that is, to demonstrate that properly 

cleaning the shrimp would have meaningfully reduced the risk of 

saxitoxin intoxication. Indeed, he appears to concede in his 

opening brief that "saxitoxin cannot be eliminated" by cleaning or 

deveining shrimp. Further, he has failed to develop any argument 

that the restaurant had a duty to inspect the shrimp, visually or 

otherwise, and that any such inspection would have alerted 

restaurant staff to the presence of saxitoxin. Because GonzálezCabán has failed to develop arguments regarding these other 

theories of liability, we consider them waived.13 See United States

v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to 

in a perfunctory manner, unaccompanied by some effort at developed 

argumentation, are deemed waived."); see also Schneider v. Loc. 

103 I.B.E.W. Health Plan, 442 F.3d 1, 3 (1st Cir. 2006) ("Even an 

issue raised in the complaint but ignored at summary judgment may 

13 We similarly deem waived for lack of development any 

contention that the distributors had a duty to test or otherwise 

inspect the packaged, frozen shrimp for saxitoxin contamination.
- 17 -

be deemed waived." (quoting Grenier v. Cyanamid Plastics, Inc., 70 

F.3d 667, 678 (1st Cir. 1995))).

IV.

It is clear that González-Cabán and his family have

suffered a terrible tragedy. However, we are limited in our ruling 

to the state of the summary judgment record and the law. On that 

basis, we must conclude that the district court correctly granted 

summary judgment to the defendants.

Affirmed.