United States Court of Appeals

For the First Circuit

Nos. 17-1686, 17-2217

JOHN KENYON, individually, on behalf of his conjugal partnership 

and as parent and natural guardian of C.A.K.; RHEA KENYON, 

individually, on behalf of her conjugal partnership and as 

parent and natural guardian of C.A.K.; C.A.K.; CONJUGAL 

PARTNERSHIP KENYON-KENYON,

Plaintiffs, Appellants,

v.

DR. RICARDO CEDENO-RIVERA; DR. JUAN R. JIMENEZ-BARBOSA; DR. 

MARIA DE LOS ANGELES RODRIGUEZ-MALDONADO; SIMED, Insurers 

Syndicate for the Joint Underwriting of Medical-Hospital 

Professional Liability Insurance; SIMED 1, as insurer for Dr. 

Juan R. Jimenez-Barbosa; SIMED 3, as insurance carrier of Dr. 

Maria de los Angeles Rodriguez; SIMED 4, as insurance carrier of 

Dr. Ricardo Cedeno-Rivera; DR. EVELYN GONZALEZ-DEL RIO; DR. 

MARIA COMAS-MATOS; JOE DOES 1-10; INSURANCE COMPANIES A to Z; 

JOHN DOE 1; CONJUGAL PARTNERSHIP DOE 1-COMAS; JOHN DOE 2; 

CONJUGAL PARTNERSHIP DOE 2-GONZALEZ; CONJUGAL PARTNERSHIP 

CEDENO-DOE 2; JOHN DOE 3; CONJUGAL PARTNERSHIP DOE 3-RODRIGUEZ; 

SIMED 2, as insurance carrier of Dr. Evelyn Gonzalez-del Rio; 

SIMED 5, as insurance carrier of Dr. Maria Comas-Matos; MS. 

RICARDO CEDENO RIVERA, wife of Ricardo Cedeno-Rivera,

Defendants, Appellees,

HOSPITAL SAN ANTONIO, INC.,

Defendant, Third-Party Plaintiff, Appellee,

SIMED 7, insurer of Dr. Richard Doe; SERVICIOS MEDICOS DE 

ANASCO, INC.; MUNICIPALITY OF ANASCO; DR. RICHARD DOE; MARY ROE, 

wife of Dr. Richard Doe; CONJUGAL PARTNERSHIP DOE-DOE, composed 

by Dr. Richard Doe and Mary Doe; DR. MARY ROE; RICHARD ROE, 

husband of Dr. Mary Roe; CONJUGAL PARTERNSHIP ROE-ROE, composed 

by Richard Roe and Dr. Mary Roe; THOMAS ROE; ABC INSURANCE CO.; 

DEF INSURANCE CO.; HIJ INSURANCE COMPANY: JKL INSURANCE CO.; RQS 

INSURANCE COMPANY; COMPANY MNO; COMPANY OPQ; SIMED 8, insurer of 
DR. Mary Roe; DR. FRANCISCO MORALES,

Third-Party Defendants, Appellees,

ADMIRAL INSURANCE COMPANY; JANE DOE 3; CONJUGAL PARTNERSHIP 

JIMENEZ-DOE 3,

Defendants. 

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Silvia L. Carreño-Coll, U.S. Magistrate Judge] 

Before

Kayatta and Howard, 

Circuit Judges.*

James Healy, with whom Julie Soderlund and Sullivan & Brill,

LLP were on brief, for appellants.

Jose H. Vivas, with whom Vivas & Vivas was on brief, for 

appellee Dr. Ricardo Cedeño-Rivera. 

Benjamin Morales Del Valle, with whom Morales Morales Law 

Offices was on brief, for appellee Dr. María de Los Ángeles 

Rodríguez-Maldonado.

Jeannette Lopez de Victoria, with whom Oliveras & Ortiz, 

P.S.C. was on brief, for appellee Dr. Juan R. Jiménez-Barbosa.

Carlos G. Martínez-Vivas, with whom Martinez-Texidor & 

Martínez-Vivas was on brief, for appellee Hospital San Antonio, 

Inc.

Nidia I. Teissonniere for appellee SIMED 1, 3 & 4.

August 25, 2022

* Judge Torruella heard argument in these appeals, but he 

did not participate in the decision. See 28 U.S.C. § 46(d).
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HOWARD, Circuit Judge. These appeals require us to 

interpret and apply a Puerto Rico statute that has been amended 

several times during the pendency of this litigation. The appeals 

arise out of a medical malpractice suit filed by the plaintiffsappellants, John and Rhea Kenyon, on behalf of themselves, their 

conjugal partnership, and their minor daughter, C.A.K. 

(collectively, "Kenyon"), against the Hospital San Antonio, Inc.

("HSA") and several doctors who worked in San Antonio Hospital's

emergency room. Kenyon alleged that the named defendants, Drs. 

Ricardo Cedeño-Rivera, Juan R. Jiménez-Barbosa, and María de Los 

Ángeles Rodríguez-Maldonado (collectively, "the physicians"),1

breached their duty of care and departed from accepted medical 

standards when treating C.A.K. in the emergency room of San Antonio 

Hospital in 2010. 

Following discovery, the physicians moved for summary 

judgment, arguing that they were absolutely immune from liability 

for negligence under the 2013 amendments to Article 41.050 of the 

Puerto Rico Insurance Code. Law No. 150-2013 (amending P.R. Laws 

Ann. tit. 26, § 4105) ("Law 150"). The motion was joined by both 

HSA and the Insurers Syndicate for the Joint Underwriting of 

Medical-Hospital Professional Liability Insurance ("SIMED"), the 

1 The original complaint named several other individuals, 

including Drs. Maria Comas-Matos and Evelyn Gonzalez-Del Rio, as 

defendants. However, these individuals did not join the motion 

for summary judgment and have not entered an appearance before us. 
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physicians' professional liability insurance provider. The 

district court agreed and granted partial summary judgment to the 

physicians. 

After the district court's ruling, another district 

court in the District of Puerto Rico analyzed the application of 

Law 150 to HSA and medical professionals working at San Antonio

Hospital. Oquendo-Lorenzo v. Hospital San Antonio, Inc., 256 F. 

Supp. 3d 103 (D.P.R. 2017). Unlike the district court in Kenyon's 

case, however, the district court in Oquendo-Lorenzo concluded 

that HSA was not entitled to a cap on damages, and that the doctor 

in Oquendo-Lorenzo was not entitled to absolute immunity. Kenyon

subsequently moved for reconsideration in light of the OquendoLorenzo decision. The district court denied that motion. 

Kenyon appealed both decisions and the appeals have been 

consolidated. We affirm.

I. Factual Background

The facts underlying the present suit are largely 

undisputed. In early 2010, C.A.K. began experiencing symptoms of 

vasculitis, and her parents sought treatment for her condition 

from her primary care physician. In the early hours of August 14, 

2010, C.A.K.'s symptoms became severe, so her mother took her to 

the emergency room at San Antonio Hospital, where she was evaluated 

by Dr. Cedeño-Rivera, a licensed physician who worked in the ER. 

Dr. Cedeño ordered several tests and made a provisional diagnosis 
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of gastroenteritis and dehydration. However, his shift ended 

before the test results were available, and care of C.A.K. 

transferred to Dr. Rodríguez-Maldonado, another ER doctor. 

The tests showed some evidence of acute kidney failure, 

but Dr. Rodríguez nevertheless discharged C.A.K. at 6:00 P.M. on 

August 15, 2010. C.A.K.'s condition continued to deteriorate, and 

she was taken to various other physicians over the next three 

weeks. Finally, on September 8, 2010, C.A.K. was diagnosed with 

renal failure and was taken to the ER at San Antonio Hospital to 

be stabilized. While there, she was diagnosed with acute renal 

failure and anemia and ordered to be transferred to University 

Pediatric Hospital in San Juan. However, C.A.K. was not 

transferred until 2:15 P.M. the next day. During this time, both 

Dr. Rodríguez and Dr. Jiménez-Barbosa were involved in the 

treatment of C.A.K. 

C.A.K. remained at University Pediatric Hospital until 

November 2, 2010. By the time she was discharged, she had lost 

99% of the function in her kidneys and required daily dialysis. 

She eventually received a kidney transplant in 2014. 

Kenyon initially sued HSA and the physicians in the U.S. 

District Court for the District of Puerto Rico on September 7, 

2011, asserting a claim under the Emergency Medical Treatment and 

Active Labor Act ("EMTALA"), and also state-law claims. The suit 

was dismissed on June 28, 2013, after the district court dismissed 
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all federal EMTALA claims with prejudice and declined to exercise 

supplemental jurisdiction over Kenyon's medical malpractice 

claims, dismissing them without prejudice. 

On June 27, 2014, after the family had moved to New 

Jersey, Kenyon refiled the suit for medical malpractice under the 

district court's diversity jurisdiction. Following discovery, the 

physicians, SIMED, and HSA moved for summary judgment. The 

physicians argued that they were immune from suit due to Article 

41.050. HSA also sought summary judgment with respect to the 

question of whether it was entitled to a limitation on liability 

for the claims against it. 

On March 30, 2017, the district court granted 

defendants' motions for partial summary judgment. It held that 

the physicians were immune from suit under the 2013 version of 

Article 41.050 and, by extension, that SIMED could not be required 

to compensate Kenyon for damages resulting from that alleged 

misconduct. See Colon v. Ramirez, 913 F. Supp. 112, 119 (D.P.R. 

1996) ("[T]he immunity afforded state doctors is not a personal 

defense but rather the 'inexistence of a cause of action' and . . . 

where no cause of action lies against the insured, the insurer is 

not liable." (citing Lind Rodríguez v. Commonwealth of Puerto Rico, 

12 P.R. Offic. Trans. 85 (1928))). The court also held that HSA's

liability "for all damages alleged by all parties and by all causes 

of action[] in the complaint" was capped at $150,000. However, it 
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found that there was a genuine issue of material fact with respect 

to HSA's liability, and allowed that portion of the suit to 

proceed.2 

After this appeal was filed, Kenyon sought 

reconsideration in the district court, arguing that OquendoLorenzo represented a change in controlling law. The district 

court disagreed, and Kenyon appealed the denial of reconsideration 

as well. 

The two appeals were consolidated before us.

II. The Statutory Scheme

Because this case rests on the proper interpretation of 

2 As a result, this appeal is interlocutory since the district 

court's grant of summary judgment did not fully dispose of the 

claims against HSA. At our direction, pursuant to Federal Rule of 

Civil Procedure 54(b), the district court issued a written 

statement of reasons for authorizing this appeal, specifying that 

the summary judgment order fully adjudicated all claims against 

the individual physicians and against SIMED. The district court 

found that these claims did not overlap with the claims pending 

against HSA and did not require further fact-finding, so an 

interlocutory appeal was appropriate. We agree, and proceed to 

the merits of this appeal.

We note that the district court also appeared to certify its

holding that HSA was entitled to a liability cap. But that

determination is not final. Spiegel v. Trustees of Tufts Coll., 

843 F.2d 38, 43 (1st Cir. 1988) (in reviewing Rule 54(b) 

certification, "we determine for ourselves whether the judgment 

has the requisite aspects of finality"); see, e.g., Gen.

Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022, 1030-31 (6th 

Cir. 1994) (declining interlocutory appeal of determination as to 

damages but not liability); Carpenter v. Liberty Ins. Corp., 850 

F. App'x 351, 353–54 (6th Cir. 2021). Therefore, the issue of 

HSA's liability cap is not part of this appeal and we do not 

address it.
- 8 -

P.R. Laws Ann. tit. 26, § 4105, we start by tracing the evolution 

of the statute.3 Article 41.050 of the Puerto Rico Insurance Code 

originally passed in 1986 and provided certain medical providers 

with limits on liability for medical malpractice. Over the years, 

the provision has been amended repeatedly. 

As of 2010, when C.A.K. was treated at San Antonio

Hospital, Article 41.050 had last been amended in 2006. This 

version immunized all "health services professional[s]" who worked 

as "employee[s]" of the Commonwealth of Puerto Rico, "its 

dependencies and instrumentalities," the Comprehensive Cancer 

Center of the University of Puerto Rico, "and the municipalities 

or contractor[s] thereof" from suits for damages "because of 

culpability or negligence arising from malpractice 

incurred . . . while acting in compliance of his/her duties and 

functions." Law No. 260-2006 (amending P.R. Laws Ann. tit. 26,

§ 4105).

The statute was amended on June 27, 2011, a few months 

before Kenyon first filed suit in federal district court, 

specifically to protect the employees of certain medical 

providers, namely Mayagüez Medical Center. See Law 103-2011

3 In doing so, we cite to the translations of the statute that 

the parties provided to the district court as part of the summary 

judgment record. See, e.g., Puerto Ricans for Puerto Rico Party

v. Dalmau, 544 F.3d 58, 67 (1st Cir. 2008) (explaining that the 

parties have an obligation to provide certified translations of 

any Spanish-language documents on which they rely).
- 9 -

(amending P.R. Laws Ann. tit. 26, § 4105) ("Law 103"). The 

relevant section of this version of the statute did not explicitly 

mention San Antonio Hospital.

The statute was again amended on September 29, 2012, 

while Kenyon's initial suit was ongoing. This version of the

statute granted immunity to healthcare professionals operating in 

the "neonatal and pediatric intensive care units, operating, 

emergency, and trauma rooms of the San Antonio Hospital of 

Mayagüez." It also noted that for the "internists and 

pediatricians of the neonatal intensive care units, and the 

obstetrician gynecologists and surgeons of the San Antonio 

Hospital," the liability caps in Section 3077 would apply. Law 

278-2012 (amending P.R. Laws Ann. tit. 26, § 4105) ("Law 278").4 

The statute made clear that these protections would "start to 

company [sic] immediately after [the law's] approval." Id.

(emphasis added).

On December 10, 2013, a few months after Kenyon's initial 

suit had been dismissed but before the present suit was filed, 

Article 41.050 was amended yet again. See Law 150. Law 150 did 

not significantly change the language granting immunity and limits 

on liability to medical professionals. However, Law 150 did 

4 Section 3077 waives sovereign immunity in certain 

situations, but also establishes liability caps. P.R. Laws Ann. 

tit. 32, § 3077 (2011).
- 10 -

include a retroactivity provision, which stated that the Act: 

shall start to govern immediately after its 

approval, and shall have retroactive effect 

over any cause of action in any legal 

proceeding that has been constituted or filed 

before any competent court or adjudicative 

forum since June 27, 2011 on forward and that 

has not been adjudicated or settled, in a 

final and binding manner, by a court or 

competent forum, or over any fact occurred on 

or after June 27, 2011 over which no final and 

binding judgment has been issued.

This version of the statute was in place when Kenyon filed the 

present suit against HSA and the physicians. The district court 

applied this version of Article 41.050 when it granted summary 

judgment to the physicians and SIMED. 

In August of 2017, after the district court had granted 

summary judgment for the physicians and SIMED, the Puerto Rico 

legislature again amended Article 41.050. Law No. 99-2017

(amending P.R. Laws Ann. tit. 26, § 4105) ("Law 99"). These 

amendments specified that HSA would be subject to the "limits of 

liability" included in "Act No. 104 of June 29, 1955." The 2017 

amendments, like the 2013 amendments, included a retroactivity 

provision explaining that the 2017 version of Article 41.050 would 

apply to all cases filed after June 2011 that had not yet been 

"adjudicated or settled in a final and binding manner, . . . or 

with regard to any fact taking place on or after June 27, 2011, 

over which a final and binding judgment has not yet been issued." 
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III. The Statutory Interpretation Question

The focus of Kenyon's appeal is his contention that the 

district court improperly read Law 150, by virtue of its 

retroactivity provision, to immunize the physicians for conduct 

that occurred before the physicians of San Antonio Hospital were 

explicitly included in the scope of Article 41.050. The language 

of Law 150, Kenyon argues, is ambiguous and therefore should be 

read narrowly to allow the suit to proceed to trial. 

A. Law 150

Kenyon focuses on Law 150 -- that is, the 2013 amendments 

to Article 41.050 -- which is the same version of the statute the 

district court applied. We agree that Law 150 applied to the 

present case based on the text of its retroactivity provision.5

Because the proper interpretation of the statute is a 

5 The district court explained that Law 150 applied in the 

case because of the retroactivity provision in the statute, which 

specified that it would apply in all cases filed after June 27, 

2011, in which there was not yet a final and binding judgment. 

When Law 150 was passed (and when the district court ruled), 

Kenyon's case against the physicians and SIMED had not yet been 

adjudicated in a binding manner. Therefore, the 2013 retroactivity 

provision applied, and thus, so did the 2013 version of the law. 

In August 2017, after the district court granted summary 

judgment to the relevant defendants, the Puerto Rico legislature 

again amended Article 41.050. The 2017 version, "Law 99," also 

contained a retroactivity provision, explaining that the law would 

apply retroactively to all cases filed since June 27, 2011, that 

had yet to be adjudicated or settled in a final and binding manner. 

By the time Law 99 went into effect, however, a binding and 

conclusive judgment had been issued as to the physicians and SIMED. 

Thus, we do not apply Law 99 in this case, for the same reasons we 

explained in Oquendo-Lorenzo. See Oquendo-Lorenzo v. Hospital San 
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question of law decided by the district court at summary judgment, 

our review is de novo. Hannon v. City of Newton, 744 F.3d 759, 

765 (1st Cir. 2014). In evaluating Kenyon's arguments, we are 

mindful of our obligation to faithfully apply the substantive law 

of Puerto Rico and take our cues from the Puerto Rico Supreme Court 

with respect to the proper method of statutory interpretation. 

See Quality Cleaning Products R.C., Inc. v. SCA Tissue N. Am., 

LLC, 794 F.3d 200, 207 (1st Cir. 2015) ("A federal court sitting 

in diversity cannot be expected to create new doctrines expanding 

state law." (quoting Gill v. Gulfstream Park Racing Ass'n, 399 

F.3d 391, 402 (1st Cir. 2005)).

Here, Kenyon argues that the text of the 2013 amendments

to Article 41.050 are ambiguous with respect to the scope of their 

retroactivity. The amendments, Kenyon suggests, can be read to 

apply only to those hospitals and organizations that were protected 

by Article 41.050 before the 2011 amendments were passed. 

Alternatively, per Kenyon, they can be read to apply only to 

conduct that occurred after June 27, 2011. 

Such readings are contradicted by the text of the 

retroactivity clause. The retroactivity clause in the 2013 

amendments explains that they will apply to: 

"any cause of action in any legal proceeding that has been 

Antonio, Inc., Nos. 17-1810 & 18-1936, slip op. at 11-15 (1st Cir. 

Aug. 25, 2022).
- 13 -

constituted or filed . . . since June 27, 2011 on forward and that 

has not been adjudicated or settled, in a final and binding manner 

. . . ." Law 150 (emphasis added). By its terms, the 

retroactivity clause does not apply only to conduct that occurred 

after June 27, 2011; nor does it draw any distinction between 

institutions that were protected by Article 41.050 before 2011 and 

after 2011. While the retroactivity clause is unclear as to some 

points, it is clear on the relevant issues. Kenyon's claims were 

filed after June 27, 2011, so the clause plainly applies. 

Because the text of the statute is clear on that point, 

our analysis ends there, and we need not look elsewhere. See P.R. 

Laws Ann. tit. 31, § 14 ("When a law is clear and free from all 

ambiguity, the letter of the same shall not be disregarded, under 

the pretext of fulfilling the spirit thereof."). 

B. Immunity

Given that Law 150's retroactivity provision plainly 

applies to the present case, we are obligated to apply it, as the 

district court did below. And, under that law, the physicians are 

immune from Kenyon's malpractice claim. Specifically, when the 

injury occurred, the physicians were all working as ER doctors. 

Thus, under Law 150, they may not be "included as defendants in a 

civil action" for "professional malpractice" or "negligence" 

because they are "healthcare professional[s]" who were "act[ing] 

in the compliance with [their] duties and functions" "in 
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the . . . emergency rooms" of the "San Antonio Hospital of 

Mayagüez." P.R. Laws Ann. tit. 26, § 4105.6 

Consequently, we read the 2013 amendments to Article 

41.050 as immunizing the physicians from this suit, and therefore, 

as foreclosing the present action.

IV. Constitutional and Puerto Rico Civil Code Issues

Kenyon further contends that retroactive application of 

Article 41.050 (1) violates § 3 of the Puerto Rico Civil Code, and 

(2) is unconstitutional as applied to this case under the due 

process clauses of both the U.S. and Commonwealth of Puerto Rico 

Constitutions. As a preliminary matter, we note that Kenyon raised 

the argument with respect to the federal Constitution only in 

connection with the 2017 amendments, and not in connection with 

the 2013 amendments. However, the 2017 amendments did not 

6 Law 150 immunizes a group of healthcare professionals from 

a malpractice claim if they meet certain listed professional 

criteria and work at a qualified facility, which includes San 

Antonio Hospital. As explained, the physicians fall within that 

group of professionals. 

Law 150 also contains another section that identifies a 

subgroup of healthcare professionals -- "intensive care 

professionals and pediatricians of the neonatal intensive care 

units; and the obstetrician/gynecologists and surgeons of the San

Antonio Hospital" -- who are subject to certain liability limits 

set forth in Section 3077 of Title 32. However, there is no 

suggestion in the summary judgment record that any of the 

physicians involved in this case were surgeons or 

obstetrician/gynecologists or did any work in the neonatal 

intensive care unit. Thus, the part of Law 150 that establishes 

a liability limit for such healthcare professionals is not relevant 

to the present case. 
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meaningfully change the text of the retroactivity clause. If the 

2017 amendments infringe on Kenyon's right to due process, then it 

follows that the 2013 amendments, which we have applied in this 

case, would do so as well. 

A. Procedural Barriers to Review

We first consider whether we may reach the merits of 

Kenyon's due process arguments as to the 2013 amendments. 

Federal Rule of Civil Procedure 5.1 requires a "party 

that files a pleading, written motion, or other paper drawing into 

question the constitutionality of a federal or state statute" to 

"file a notice of constitutional question" with the court and serve 

that notice to the attorney general of the state. The physicians

and HSA point out that Kenyon never filed a Rule 5.1 notice or 

served the applicable notice on the Attorney General of Puerto 

Rico when he filed his opposition to summary judgment contending 

that the 2013 amendments were invalid under the Commonwealth

Constitution.7 Kenyon did file and serve such a notice on the 

Attorney General upon challenging the 2017 amendments under the 

U.S. and Commonwealth Constitutions, although HSA contends that 

7 We note that it is not clear that Kenyon was required to 

file a notice under Rule 5.1 as to his challenges based on the 

Commonwealth Constitution. See Gibson v. Am. Cyanamid Co., 760 

F.3d 600, 608 n.4 (7th Cir. 2014) ("Because [plaintiff] challenges 

[a statute] under Wisconsin's Constitution, not the federal 

constitution, there is no need to certify the challenge to the 

Wisconsin Attorney General under 28 U.S.C. § 2403(b) or Federal 

Rule of Appellate Procedure 44(b)."). 
- 16 -

that notice was untimely.8 

The issue is thus whether it is appropriate for us to 

analyze the constitutionality of retroactive application of 

Article 41.050 under the 2013 amendments, where Rule 5.1 notice 

was provided as to the 2017 amendments (even if it was untimely, 

as HSA contends), but not the 2013 amendments. Rule 5.1 makes 

clear that any alleged "failure to serve the notice . . . does not 

forfeit a constitutional claim or defense that is otherwise timely 

asserted." Fed. R. Civ. P. 5.1; see also Puffer's Hardware, Inc.

v. Donovan, 742 F.2d 12, 18 (1st Cir. 1984). Where the attorney 

general has not received a notice that was required under Rule 

5.1, "the appellate court has discretion to respond in different 

ways, depending on the nature of the arguments and the progress of 

the litigation." Oklahoma ex. rel Edmondson v. Pope, 516 F.3d 

1214, 1216 (10th Cir. 2008) (remanding to the district court 

because Rule 5.1 notice had not been provided, but canvassing other

cases that had provided notice to the attorney general of the 

8 Kenyon filed that Rule 5.1 notice with the district court 

on September 7, 2017. In that notice, he explained that he was 

challenging whether "Law 99 [o]f August 13, 2017[,] violates the 

Due Process Clauses of the Fourteenth Amendment of the United 

States Constitution[] and Article II, § 7 of the Puerto Rico 

Constitution" and noted that "a copy of th[e] notice" was being 

served on the "Attorney General of Puerto Rico." Rule 5.1(c) 

provides that the attorney general "may intervene within 60 days 

after the notice is filed" or within a longer time period under 

circumstances not relevant here. The Attorney General did not 

intervene within 60 days. 
- 17 -

pending appeal instead). Here, as noted, the issues are the same 

as to the constitutionality of the retroactivity clause whether 

considering the 2013 or 2017 amendments, because the 2017 

amendments did not meaningfully change the retroactivity clause.

Thus, we conclude that there is no need to provide any further 

notice to the Attorney General. 

More concerning for our purposes is HSA's contention 

that Kenyon waived his argument that the retroactivity clause of 

Article 41.050 violated the federal Constitution because he failed 

to properly raise it before the district court. Though Kenyon 

argued that the 2013 amendments were invalid under the Commonwealth 

Constitution in his opposition to summary judgment, he did not 

present the federal constitutional question at the summary 

judgment stage. Instead, Kenyon first challenged the 2017 

amendments under the federal Constitution in his opposition to 

HSA's motion to take judicial notice of the 2017 amendments, which 

was filed in response to Kenyon's request for reconsideration. 

However, the federal constitutional claim was certainly available 

to Kenyon at the summary judgment stage and should have been 

presented at that juncture. We therefore agree that Kenyon's 

federal constitutional arguments are waived, and we need not 

determine their merits. 

Nevertheless, Kenyon preserved his contentions as to the

Due Process Clause of the Commonwealth Constitution. And the 
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Puerto Rico cases that the parties cite suggest that the Puerto 

Rico Supreme Court determines issues under that clause by reference 

to federal standards. See Torres v. Castillo, 11 P.R. Offic. 

Trans. 1001, 1012-13 (1981); Alicea v. Cordova, 17 P.R. Offic. 

Trans. 811, 831-32 (1986); Defendini Collazo v. E.L.A., Cotto, 134 

P.R. Dec. 28 (1993). In addition, Kenyon appears to contend that 

our due process analysis should be essentially the same under the 

U.S. and Commonwealth Constitutions, without noting specific 

differences. Therefore, as part of our analysis of his preserved 

claim, it is necessary to review caselaw interpreting the federal 

Due Process Clause. We emphasize, however, that we do so not to 

determine the merits of his claim under the U.S. Constitution --

which, again, he has waived -- but only because such standards are 

relevant to his contentions under the equivalent clause of the 

Commonwealth Constitution.9

9 Kenyon also argues that the retroactivity provision is void 

under Article III § 17 of the Puerto Rico Constitution, which 

mandates that "[e]very bill, except general appropriations bills, 

shall be confined to one subject, which shall be clearly expressed 

in its title, and any part of an act whose subject has not been 

expressed in the title shall be void." P.R. Const. Art. III, § 17. 

The retroactivity clause, Kenyon argues, is void because it is not 

expressly referenced in the title. This argument is refuted by 

the plain text of the statute: Law 150 was passed "[t]o amend the 

first and third paragraph of article 41.050 . . . and to establish 

the application of this Act retroactively." Law 150. 

Moreover, the title of the 2013 amendments need not 

specifically mention retroactive application in order to be valid 

under Puerto Rico law. See Cervecería Corona v. Minimum Wage Bd. 

of P.R., 98 P.R. Dec. 801, 1970 P.R. Sup. LEXIS 210 (1970) ("In 

the case of an amendatory act the prevailing doctrine does not 
- 19 -

B. Commonwealth Due Process Claim

The United States and Commonwealth Constitutions both

guarantee, in relevant part, that an individual will not be 

deprived of liberty or property without due process of law. P.R. 

Const. Art. II, § 7; U.S. Const. amend. V, XIV. The federal Due 

Process Clause has both "substantive and procedural components." 

Pagan v. Calderon, 448 F.3d 16, 32 (1st Cir. 2006). Kenyon appears 

to contend that retroactive application of Article 41.050 violates 

his right to substantive due process, which the Commonwealth's Due 

Process Clause also guarantees. See Defendini Collazo, 134 P.R. 

Dec. 28.10

The federal Constitution's guarantee of substantive due 

require that the title express the specific changes sought by 

virtue of the proposed amendment, provided the subject is not 

remote from or extraneous to that of the original act."). 

10 At times, Kenyon seems to contend that he was also deprived 

of procedural due process under the Commonwealth Constitution.

Procedural due process requires the state to provide "fair 

procedure[s]" before depriving an individual of protected liberty 

or property interests. Amsden v. Moran, 904 F.2d 748, 753 (1st 

Cir. 1990) (quoting Zinermon v. Burch, 494 U.S. 113, 126 (1990)). 

However, Kenyon does not specify the procedures he was deprived of 

nor the procedures that should have been followed. Therefore, any 

procedural due process claim is likely waived for lack of 

development. See United States v. Zannino, 895 F.2d 1, 17 (1st 

Cir. 1990). 

Moreover, and in any event, his contentions are based on the 

same principles whether construed as a claim for procedural or 

substantive due process -- he contends that he is entitled to such 

due process because he has a vested property right in his cause of 

action, and because he has a fundamental right to access the 

courts. Therefore, the nature of his claim is not dispositive. 
- 20 -

process protects individuals against state action that 

transgresses "basic and fundamental principle[s]." Amsden v. 

Moran, 904 F.2d 748, 754 (1st Cir. 1990); see also Pagan, 448 F.3d 

at 32. Thus, generally speaking, under the federal Due Process 

Clause, a state action will be reviewed for strict scrutiny only 

where it interferes with a fundamental right; otherwise, it is 

reviewed under the more lenient rational basis standard. Medeiros

v. Vincent, 431 F.3d 25, 32 (1st Cir. 2005), abrogated on other 

grounds, Bond v. United States, 564 U.S. 211 (2011). The Supreme 

Court of Puerto Rico takes a similar approach in reviewing 

substantive due process claims under the Commonwealth 

Constitution. For example, that court has stated that something 

more than the rational basis test will apply if a facially valid 

law "[is] detrimental to and violate[s] the fundamental rights of 

the individual." See Torres, 11 P.R. Offic. Trans. at 1012-13. 

And the court has also made clear that "the Legislature has ample 

authority to set economic regulations that promote the general 

welfare," and has reviewed such regulations under the rational 

basis test. Defendini Collazo, 134 P.R. Dec. 28 (noting that a 

statute would not violate substantive due process under the 

Commonwealth's Constitution "provided it has a real and 

substantial relation to the State interest pursued and is not 

unreasonable, arbitrary or capricious" (citing Nebbia v. New York, 

291 U.S. 502, 525 (1934))). 
- 21 -

Here, Kenyon contends that retroactive application of 

Article 41.050 to immunize the physicians from suit for conduct 

that took place before the statute was passed, and before June 27, 

2011, deprived him of a vested property right in his cause of 

action and of his fundamental right to access the courts, which 

violated his right to due process under the Commonwealth 

Constitution. Nevertheless, he has not pointed to any cases under 

federal or Puerto Rico law establishing that he was deprived of 

such a vested or fundamental right. 

In the federal context, there is caselaw indicating that

retroactive laws that overturn vested property rights are subject 

to "special scrutiny." See Adams Nursing Home of Williamstown, 

Inc. v. Matthews, 548 F.2d 1077, 1080 (1st Cir. 1977) (canvassing 

cases finding retrospective acts invalid because they overturned 

"vested property rights" and noting that "laws that unsettle 

settled rights can be harsh, and [] deserve [] special scrutiny" 

(emphasis added)); Canisius College v. United States, 799 F.2d 18, 

25 (2d Cir. 1986) (noting that where such laws overturn "vested 

rights" they are likely to be arbitrary and irrational). But in 

Hammond v. United States, we upheld a federal statute under the 

federal Due Process Clause notwithstanding that it retroactively 

foreclosed an ongoing tort action based on "common-law and state 

statutory causes of action" in state court because we reasoned 

that "rights in tort do not vest until there is a final,
- 22 -

unreviewable judgment." 786 F.2d 8, 11-12 (1st Cir. 1986)

(emphasis added). We explained that when rights have "'vested' in 

real property, a contract, or in a fixed sum, they [are] said to 

stand independent of the statute that create[s] them and [can]not 

be abridged by [a] subsequent statute," and contrasted the 

plaintiff's cause of action because it was not part of a final, 

unreviewable judgment. Id. at 11, 12. Like the plaintiff in 

Hammond, here, Kenyon did not have a final, unreviewable judgment 

when the district court retroactively applied Law 150 to Kenyon's 

suit. 

Kenyon also contends that retroactive application of Law 

150 deprives him of his fundamental right of access to the courts, 

and must therefore meet strict scrutiny. But we rejected that 

contention in Hammond, reasoning that retroactive application of 

a statute to foreclose an ongoing tort action did not involve 

"someone burdening or blocking [a] plaintiff's right of access to 

the courts to seek enforcement of the law." Id. at 13. We further

clarified that "[t]here is no fundamental right to particular 

state-law tort claims." Id.

Thus, under the federal Due Process Clause -- which the 

Puerto Rico cases cited by the parties suggest is similar to the 

Commonwealth's Due Process Clause, and which Kenyon contends is 

"much" the "same" as that clause -- retroactive application of a 

statute to foreclose an ongoing tort action in the absence of a 
- 23 -

final, unreviewable judgment does not implicate a vested property 

right or a fundamental right. 

Although the parties have not identified any Puerto Rico 

Supreme Court cases analyzing under the Commonwealth's Due Process 

Clause the specific issue raised by this case, the cases of that 

court that they cite suggest that Commonwealth and federal 

standards on these issues are consistent. Specifically, in 

Defendini, the Puerto Rico Supreme Court found that a law that 

establishes a ceiling on the Commonwealth's damages in actions for 

negligence does not violate the Commonwealth's Due Process Clause. 

134 P.R. Dec. 28. The retroactive application of that law was not 

at issue, and the point at which a cause of action "vests" was not 

discussed. See id. But the court nevertheless reasoned that the 

right to bring an action for damages was a "proprietary right," 

and thus, the "only" question was whether "the limits [imposed by 

the law] [were] clearly arbitrary." Id. 

The court also clarified that Puerto Rico had "not

recognized a fundamental right to bring a civil action," and 

expressly rejected a contention, which Kenyon also makes here, 

that Alicea and Torres hold otherwise. Defendini Collazo, 134 

P.R. Dec. 28 (emphasis added) (noting that Alicea's 

"pronouncements" that "the right to commence a civil action is a 

fundamental right" that will have to withstand "strict judicial 

scrutiny" did "not constitute the opinion of the Court" (quoting 
- 24 -

Alicea, 17 P.R. Offic. Trans. at 826)); Defendini Collazo, 134

P.R. Dec. 28 ("Torres does not recognize the existence of a 

fundamental right to file a civil suit."); see also In re San Juan 

Dupont Plaza Hotel Fire Litig., 687 F. Supp. 716, 733–34 (D.P.R. 

1988) ("In Puerto Rico, the right to sue, or rather the right of 

access to the courts, though a recognized property right, is not 

a fundamental right.") (internal quotations and citations 

omitted).11 

Kenyon analogizes his situation to that of the 

plaintiffs in Alicea. There, the Puerto Rico Supreme Court held 

that a strict, two-year statute of limitations for actions for 

medical malpractice, including those involving latent injuries, 

was unconstitutional under the Commonwealth's Due Process Clause 

because the provision at issue could "have the effect of requiring 

the plaintiffs to comply with the impossible: to sue before they 

11 Our opinion in Nieves v. University of Puerto Rico is also 

instructive. 7 F.3d 270 (1st Cir. 1993). There, we rejected any 

interpretation of Alicea as establishing a fundamental right to 

commence a civil action. Nieves, 7 F.3d at 277. 

Nieves's claim was that "strict scrutiny" was required 

because of the deprivation of a "fundamental right," "without 

regard to whether the challenged statutory classification targets 

a suspect class." Id. Although Nieves's claim -- that "the right 

to recover full compensatory damages," was fundamental -- was more 

similar to the claim asserted in Defendini than the asserted right 

here, we broadly rejected the notion that there was a fundamental 

right to maintain a civil suit for full compensatory damages under 

the Commonwealth Constitution. Nieves, 7 F.3d at 273-74, 277 

(emphasis in original) (internal quotations omitted). 
- 25 -

know about their cause of action." Alicea, 17 P.R. Offic. Trans. 

at 833.12 The statute of limitations in Alicea did not simply 

dictate the timeline by which a plaintiff may sue but "operate[d]

immediately to eliminate the existing remedy or within a term so 

short that the aggrieved party ha[d] no reasonable opportunity to 

exercise the action." Id. at 832. Here, by contrast, Kenyon had 

a reasonable opportunity to sue before June 27, 2011, because

C.A.K.'s treatment took place between August 14, 2010, and November 

2, 2010; therefore, Alicea is inapposite to the facts of this case.

Thus, in summary, Kenyon has not pointed to any case 

under Puerto Rico law establishing that a fundamental right or 

vested property right is implicated here. Instead, the relevant 

Puerto Rico and federal law, to which the Puerto Rico Supreme Court 

has looked for guidance in interpreting the Commonwealth's Due 

Process Clause, suggest that no such rights are implicated.13 

Accordingly, retroactive application of the law to Kenyon's case

is subject only to rational basis review, and will be upheld unless 

it is "wholly arbitrary and irrational in purpose and effect." 

Hammond, 786 F.2d at 13; see also Defendini Collazo, 134 P.R. Dec.

12 As noted, several parts of the opinion of the court did not 

command a majority, but its holding as to that particular issue 

did. See id. at 835. 

13 We note as well that we rely on the cases provided by the 

parties. They are responsible for updating the court on any legal 

developments that transpire after we hear an appeal, and they have 

not brought any intervening law to our attention. 
- 26 -

28. 

The statute here is neither arbitrary nor irrational. 

Both the Puerto Rico Supreme Court and the United States Supreme 

Court have acknowledged that a state has a rational interest in 

protecting the public coffers and ensuring that hospitals are able 

to continue serving vulnerable populations. See, e.g., Defendini 

Collazo, 134 P.R. Dec. 28 (concluding that there is a legitimate 

interest in protecting the Commonwealth's coffers). Kenyon has 

not shown that the retroactive grant of immunity is so unrelated 

to the legislature's goal of protecting the healthcare system and 

ensuring continued access to medical care as to be arbitrary and 

irrational. See Law 278, Statement of Purpose (discussing the 

purpose of the grant of immunity). 

Accordingly, for all of those reasons, we conclude that 

Article 41.050 does not violate the Due Process Clause of the 

Commonwealth Constitution.

C. The Puerto Rico Civil Code

Kenyon also urges us to conclude that retroactive 

application of Article 41.050 conflicts with section 3 of the 

Puerto Rico Civil Code, which provides that "[l]aws shall not have 

retroactive effect unless they expressly so decree. In no case 

shall the retroactive effect of a law operate to the prejudice of 

rights acquired under previous legislative action." P.R. Laws 

Ann. tit. 31, § 3. We reject this argument.
- 27 -

In support of this theory, Kenyon cites only one case: 

Vélez Reboyras v. Srio. de Justicia, 15 P.R. Offic. Trans. 

700 (1984). But this case explains that there is in fact no 

"absolute" "principle" of "non-retroactivity." Id. at 712; see 

also Domínguez Castro v. E.L.A., 178 P.R. Dec. 1 (2010). Instead, 

it stresses that the Puerto Rico Supreme Court will look to "'the 

substantiality of the public interest promoted by the statute and 

the dimension of the impairment caused by its retroactive 

application' and that '[t]he greater the social evil sought to be

remedied by the statute, the greater the public interest involved, 

and, therefore, the more justification for its retroactive 

application.'" Vélez Reboyras, 15 P.R. Offic. Trans. at 712

(quoting Warner Lambert Co. v. Tribunal Superior, 101 P.R. Dec.

378 (1973)). 

Kenyon, in turn, argues that "[n]o public interest . . . 

could . . . be earnestly advocated, with respect to granting this 

benefit retroactively." But as we discussed above, there is a 

rational interest in protecting the public coffers, which in turn 

enables the continued operation of hospitals. See Defendini 

Collazo, 134 P.R. Dec. 28.

Vélez Reboyras does suggest that there is a backstop to 

flexible application of the non-retroactivity principle: 

retroactivity cannot extinguish acquired (i.e., vested) rights. 

15 P.R. Offic. Trans. at 712; Torres v. Winship, 1940 P.R. Sup. 
- 28 -

LEXIS 415 (1940).

But Kenyon gives us no argument at all as to why his 

cause of action would be considered acquired or vested for the 

purposes of section 3 of the Puerto Rico Civil Code. Instead, 

Puerto Rico caselaw suggests that retroactive application of 

Article 41.050 would not interfere with an acquired right. As the 

Puerto Rico Supreme Court has explained, "the theory of acquired 

rights prohibits the retroactive application of a law when 

this affects legal relationships existing before the validity of 

the new law, which were born on the basis of the previous 

legislation." Pérez López et al. v. CFSE, 194 P.R. Dec. 314, 2015 

TSPR 165 (2015) (emphasis added). Acquired rights obtain when 

"the affected parties rested on the rule of law," and the 

"rights . . . entered the patrimony of the subjects involved." 

Consejo Titulares v. Williams Hosp., 168 P.R. Dec. 101, 108–09, 

2006 TSPR 94 (2006). An example of such an acquired right could

be a pension that has become due. Torres, 56 P.R. Dec. at 700.

Conversely, mere expectations do not create an acquired

right, and an "acquired right cannot be the set of powers that the 

previous law allowed citizens to exercise." Consejo Titulares, 

168 P.R. Dec. at 108–09. Thus, "not every legal situation that 

arises under a previous law represents a proprietary interest that 

gives way to the recognition of an acquired right." Pérez López, 

194 P.R. Dec. at 324. And "not every proprietary right or interest 
- 29 -

is in turn an acquired right" for the purposes of analyzing 

compliance with section 3 of the Civil Code. Domínguez Castro, 

178 P.R. Dec. at 68.

This caselaw, as well as the law discussed in previous 

sections, suggests that retroactive application of Article 41.050 

does not infringe on any acquired or vested right. Kenyon's cause 

of action in tort was not a legal relationship "born on the basis 

of the previous legislation," Pérez López, 194 P.R. Dec. at 324, 

nor did he "rest[] on" the prior law in any discernable way. 

Consejo Titulares, 168 P.R. Dec. at 108–09. The previous statutory 

domain might have created an expectation that he could bring a 

tort action, but not all expectations create a vested right. See

Torres, 56 P.R. Dec. at 700 (pension obligations that are not yet 

due do not create an acquired right); see, e.g., Hammond, 786 F.2d 

at 11 (tort cause of action not vested right until there is a 

final, unreviewable judgment). And again, Kenyon has not pointed 

us to caselaw suggesting otherwise. 

Consequently, the decisions of the Puerto Rico Supreme 

Court indicate that retroactive application of Article 41.050

would not conflict with section 3 of the Puerto Rico Civil Code. 

Therefore, Kenyon's argument on this issue fails. 

V. Motion to Reconsider

Finally, while this appeal was pending, Kenyon sought 
- 30 -

reconsideration14 in the district court in light of a district

court's decision in Oquendo-Lorenzo, 256 F. Supp. 3d 103. 

Specifically, Kenyon gestured to the district court in OquendoLorenzo's holding as to HSA's liability and physician liability, 

arguing this decision represented an "intervening change in the 

law."

In Oquendo-Lorenzo, the district court addressed a 

surgeon specializing in obstetrics-gynecology (Dr. Quiles), who 

had admitting privileges at San Antonio Hospital. OquendoLorenzo, 256 F. Supp. 3d at 117. The district court explained 

that applying Article 41.050 to Dr. Quiles was difficult, as he 

was both a "health professional . . . [who performed] his 

profession . . . in the neonatal and pediatric intensive care 

units" at San Antonio Hospital (and therefore was entitled to 

immunity from suit per the statute) and a "gynecologist obstetric[] 

and surgeon[]" of the hospital (and therefore was entitled only to 

a limit of liability per Section 3077). Id. at 118 (quoting P.R. 

Laws Ann. tit. 26, § 4105). The district court acknowledged that 

this created interpretative difficulties, and ultimately concluded 

that Dr. Quiles was subject to suit within the limits established 

by Section 3077. Id. at 122. The district court in OquendoLorenzo also ruled that HSA was not entitled to the liability caps

14 The district court construed this as a Rule 60(b) motion.

Fed. R. Civ. P. 60. Kenyon does not contest this characterization. 
- 31 -

in Section 3077, P.R. Laws Ann. tit. 32, § 3077. Id. at 117.

Though Kenyon's motion to reconsider was filed after the 

notice of appeal, the district court had jurisdiction to consider 

it. See Puerto Rico v. SS Zoe Colocotroni, 601 F.3d 39, 41 (1st 

Cir. 1979). Our review of the district court's denial of 

reconsideration is for abuse of discretion. Daniels v. Agin, 736 

F.3d 70, 86 (1st Cir. 2013) ("We review the denial of a Rule 60(b) 

motion for abuse of discretion, which amounts to 'de novo review 

of strictly legal determinations and deference to the extent that 

the denial turns on factual or judgmental determinations.'"

(quoting Capability Grp., Inc. v. Am. Exp. Travel Related Servs.

Co., 658 F.3d 75, 79 (1st Cir. 2011))). As a general rule, "a 

motion for reconsideration is . . . normally not a promising 

vehicle for revisiting a party's case and rearguing theories 

previously advanced and rejected." Palmer v. Champion Mortg., 465 

F.3d 24, 30 (1st Cir. 2006). We conclude that the district court

did not abuse its discretion in denying Kenyon's motion for 

reconsideration premised on an "intervening change in the law." 

The district court correctly concluded that OquendoLorenzo was not an "intervening change in the law." As the 

district court noted, and Kenyon acknowledges, the Oquendo-Lorenzo

district court decision carried only "persuasive," not 

precedential, weight. Thus, there was no intervening change in 

the law. Given this was the only argument Kenyon raised to support 
- 32 -

his motion for reconsideration, the district court was entitled to 

reject this motion.

Even putting that to one side, the district court holding 

in Oquendo-Lorenzo is not on point to the facts in this case. 

Unlike the physicians here, the physician-defendant in OquendoLorenzo was a surgeon who specialized in obstetrics-gynecology.

Consequently, the district court's conclusion that the defendantphysician was not entitled to immunity in Oquendo-Lorenzo was based 

on a portion of the text of Article 41.050 that is not implicated 

here. Thus, the district court in Oquendo-Lorenzo's ruling as to 

Dr. Quiles did not call into question the district court's decision 

as to the physicians sued by Kenyon. 

Consequently, we will affirm the district court's denial 

of the motion for reconsideration. 

VI. Conclusion

For the foregoing reasons, we affirm the district 

court's judgment and order denying the motion to reconsider.