Luis González-Cabán v. Jr Seafood Inc.

United States Court of Appeals
For the First Circuit
No. 19-1450
LUIS GONZÁLEZ-CABÁN; BRAULIO GONZÁLEZ-REYES; JENNIFER GONZÁLEZ-
MALDONADO; 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

-- 1 of 17 --

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

-- 2 of 17 --

- 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.

-- 3 of 17 --

- 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

-- 4 of 17 --

- 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 U-
5 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

-- 5 of 17 --

- 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.

-- 6 of 17 --

- 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 non-
moving 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)).

-- 7 of 17 --

- 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." Baum-
Holland 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

-- 8 of 17 --

- 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 Vázquez-
Filippetti, 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"

-- 9 of 17 --

- 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.

-- 10 of 17 --

- 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).

-- 11 of 17 --

- 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, González-
Cabán 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.

-- 12 of 17 --

- 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.

-- 13 of 17 --

- 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.

-- 14 of 17 --

- 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 González-
Cabán'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.

-- 15 of 17 --

- 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 González-
Cabán 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.

-- 16 of 17 --

- 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.

-- 17 of 17 --