José Suero-Algarín v. Cmt Hospital Hima San Pablo Caguas

United States Court of Appeals
For the First Circuit
No. 17-1851
JOSÉ SUERO-ALGARÍN,
Plaintiff, Appellee,
v.
CMT HOSPITAL HIMA SAN PABLO CAGUAS,
Defendant, Appellant,
TURABO VASCULAR GROUP, PSC; DR. LUIS APONTE-LÓPEZ;
JANE DOE; CONJUGAL PARTNERSHIP APONTE-DOE; COMPANIES A-Z;
JOHN DOE; ROSE ROE; DR. RICARDO ROCA; GRISELDA ROCA,
Wife of Dr. Ricardo Roca; CONJUGAL PARTNERSHIP ROCA-ROCA,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Silvia L. Carreño-Coll, U.S. Magistrate Judge]
Before
Torruella, Lipez, and Thompson,
Circuit Judges.
Heidi Rodríguez-Benítez, with whom Roberto Ruiz-Comas and RC
Legal & Litigation Services, P.S.C. were on brief, for appellant.
Pedro F. Soler-Muñiz, with whom Alejandra C. Martínez-Méndez,
Alejandro J. Fernández, and Alejandro J. Fernández-Muzaurieta, were
on brief, for appellee.
Orlando H. Martínez-Echeverría, with whom Orlando H. Martínez
Echeverría Law Office LLC were on brief, for Association of Hospitals
of Puerto Rico, Inc., amicus curiae.
Manuel San Juan-Martinó, with whom Carlos A. Del Valle-Cruz,
Del Valle Law, and Rafael E. García-Rodón, were on brief, for

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Association of Victims of Medical Malpractice, amicus curiae.
Eugene F. Hestres-Vélez, with whom BBH LLC was on brief, for
Puerto Rico Medical Defense Insurance Company, amicus curiae.
April 20, 2020
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TORRUELLA, Circuit Judge. Oscar Suero-Durán
("Suero-Durán") died from complications relating to the removal of
his dialysis catheter at Defendant-Appellant Hospital HIMA San Pablo
Caguas's ("HIMA") facility. Suero-Durán's son, Plaintiff-Appellee
José Suero-Algarín ("Suero-Algarín"), filed a suit for damages in
the U.S. District Court for the District of Puerto Rico against HIMA;
his father's treating physician, Dr. Luis Aponte-López
("Dr. Aponte"); Dr. Aponte's medical services corporation, Turabo
Vascular Group, PSC ("TVG") 1 ; and Dr. Ricardo Roca ("Dr. Roca"), a
participant in the HIMA medical internship program who also treated
Suero-Durán (collectively, the "co-defendants"). 2 Suero-Algarín
alleged that the negligence of the co-defendants caused his father's
death and requested $3,000,000 in compensatory damages for the
emotional distress that he suffered as a result.
After trial, the jury returned a verdict finding the
co-defendants jointly liable for medical malpractice and awarding
Suero-Algarín $1,000,000 in compensatory damages for emotional
distress. The jury found HIMA responsible for 10% of Suero-Algarín's
1 Dr. Aponte solely owned TVG and provided medical services at HIMA's
facilities under this entity's corporate name.
2 Only HIMA is a party to this appeal. TVG and Dr. Aponte withdrew
their appeals prior to oral argument. Dr. Roca never sought recourse
from this court. In fact, the district court entered a default
judgment against him in the early stages of this case.

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damages. 3 Dissatisfied with this result, HIMA pursued various
avenues for post-verdict relief. It moved for judgment as a matter
of law, claiming there was no legally sufficient evidentiary basis
for a reasonable jury to find that it had acted negligently. In the
alternative, HIMA sought a new trial or remittitur of the jury's
remedial damages award.
In its request for remittitur, HIMA averred that, because
this is a diversity case, the district court was required to review
the jury's award for excessiveness in accordance with the standard
set forth by the Puerto Rico Supreme Court in Santiago Montañez v.
Fresenius Medical Care, 195 P.R. Dec. 476 (2016) (hereinafter,
"Fresenius"), which entails a comparison with damages awarded in
similar cases in Puerto Rico courts (hereinafter, the "comparative
standard"). 4 The district court denied HIMA's motion for judgment
as a matter of law but granted remittitur, reducing the jury's
compensatory damages award from $1,000,000 to $400,000. In so doing,
the district court rejected HIMA's characterization of Fresenius as
articulating a new standard for reviewing the excessiveness of the
jury's damages award based on the use of comparator cases. Instead,
the district court applied the longstanding federal standard of
3 The jury apportioned the remaining 90% equally among TVG,
Dr. Aponte, and Dr. Roca (i.e., 30% each).
4 For the purposes of our review, we rely on the stipulated translation
of the case in the record.

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review. HIMA appealed, asking us to reverse the district court's
denial of its motion for judgment as a matter of law on the basis
that the evidence presented at trial was legally insufficient to
warrant a finding of liability on its part. Alternatively, HIMA
requested that we remand the case to the district court with
instructions to review the jury's damages award for excessiveness
in accordance with the comparative standard.
After careful consideration, we affirm the district court's
denial of HIMA's motion for judgment as a matter of law as well as
its remitted verdict.
I. BACKGROUND
A. Factual Background
On July 10, 2013, Suero-Durán was admitted to HIMA to
receive treatment for bilateral leg cellulitis, which was beginning
to show signs of filariasis. 5 He was initially attended by medical
internist Dr. Livino Lora. Suero-Durán had a history of serious
health issues, including diagnoses of morbid obesity, chronic
obstructive pulmonary disease, advanced renal disease, and diabetes
mellitus. Two of Suero-Durán's conditions -- his chronic obstructive
pulmonary disease and advanced renal disease -- worsened after he
5 Filariasis is a parasitic condition where the parasite locks the
lymphatic system in the lower extremities, causing the legs to expand.
In certain extreme cases, this condition is referred to as
elephantiasis because it causes a person's lower extremities to swell
to the extent that they resemble those of an elephant.

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was admitted to HIMA. On July 15, five days after arriving at the
hospital, Suero-Durán began experiencing respiratory failure. The
next day, a nephrologist diagnosed him with renal failure and
recommended hemodialysis, which required the introduction of a
catheter. Accordingly, Suero-Durán's treating physician,
Dr. Aponte, placed a double lumen hemodialysis catheter (the "double
lumen catheter") inside his left subclavian artery. Because he
understood that Suero-Durán's morbid obesity prevented him from
laying down without obstructing his airway, Dr. Aponte placed him
in a special upright position, at an angle of thirty to forty-five
degrees, instead of the typical flat, face-up position ("supine
position") recommended for catheter placement.
On August 9, Dr. Aponte noticed that Suero-Durán's double
lumen catheter was malfunctioning and therefore replaced it with a
new one on August 10. However, the new catheter also malfunctioned.
Although chest X-rays indicated that it was correctly placed, the
new catheter did not provide the required blood flow, so Dr. Aponte
determined that it should be removed. Dr. Aponte instructed Dr. Roca
to remove Suero-Durán's catheter without the need for supervision.
Dr. Roca was a participant in HIMA's internship program. 6
Dr. Aponte had met Dr. Roca when Dr. Roca was on rotation in the
6 Dr. Roca was required to participate in an internship program to
obtain his permanent Puerto Rico medical license.

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hospital's surgery department. They eventually reached an agreement
extending Dr. Roca's responsibilities beyond those imposed by HIMA's
internship program. Pursuant to their agreement, Dr. Roca would
assist Dr. Aponte with both his patients and those referred to him
by HIMA by making daily rounds, taking medical history, physical,
and progress notes, and drafting discharge summaries. Dr. Aponte was
to review all of Dr. Roca's notes and discharge summaries. Per the
agreement, Dr. Roca would "[i]n no shape or form . . . help[]
[Dr. Aponte] in the surgery room." Dr. Aponte memorialized the terms
of his agreement with Dr. Roca in a letter that he sent to the director
of HIMA's internship program, Dr. Carmen Cortés, on August 7, 2013 --
three days before he instructed Dr. Roca to remove Suero-Durán's
double lumen catheter.
HIMA's internship program required a fully licensed doctor
to accompany interns at all times. 7 However, on August 11, 2013,
Dr. Roca placed Suero-Durán in an upright sitting position of
approximately forty-five degrees and removed his catheter without
any supervision. Immediately afterward, Suero-Durán's eyes rolled
back as he became paralyzed and stopped breathing. Medical personnel
at the hospital called a "code green" 8 and performed CPR on
7 At the time of the events in question, Dr. Roca only held a
provisional Puerto Rico medical license.
8 "Code green" refers to an alert to hospital staff that a patient
needs emergency assistance.

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Suero-Durán. Unfortunately, Suero-Durán never recovered. He
suffered irreversible brain damage and remained comatose until his
death on October 13, 2013 -- a little over two months after the
incident.
B. Procedural Background
On June 26, 2014, Suero-Algarín, a resident of Illinois,
filed a complaint in the U.S. District Court for the District of Puerto
Rico predicated on diversity jurisdiction against HIMA and TVG as
well as against Dr. Aponte and Dr. Roca. Suero-Algarín alleged that
the treatment that his father received at HIMA constituted medical
malpractice. He requested $3,000,000 in compensatory damages for the
pain and suffering he endured as a result of his father's death.
Suero-Algarín claimed that Dr. Aponte and Dr. Roca acted negligently
because they failed to adhere to the relevant standard of care.
As to HIMA, Suero-Algarín claimed the hospital was both
jointly and vicariously liable for all negligent acts related to the
death of his father, who was a patient by virtue of admission into
the emergency room. He also averred that HIMA was liable due to its
alleged lack of medical protocols to ensure the safe removal of
Suero-Durán's hemodialysis catheter, lack of mechanisms to assure
an immediate response to his cardiorespiratory arrest, and "improper
credentialing and improper conferring . . . of medical privilege
to . . . Dr. Roca and Dr. Aponte, who clearly [did] not have adequate

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qualifications to practice medicine and vascular surgery."
The ensuing eight-day jury trial, which took place in
March 2017, was a classic battle of the experts. On one side,
Suero-Algarín's expert, Dr. David C. Dreyfuss ("Dr. Dreyfuss"),
opined that Dr. Roca's failure to place Suero-Durán in the
Trendelenburg position 9 when removing the catheter caused him to
suffer an air embolism, which led to cardiorespiratory arrest, brain
damage, and his eventual death. He also testified that Suero-Durán's
condition deteriorated even further because of delays in calling a
code green and performing CPR. On the other side, the co-defendants'
experts, Dr. Samuel A. Amill-Acosta ("Dr. Amill") and Dr. Luis A.
López-Galarza ("Dr. López"), explained that Dr. Roca correctly placed
Suero-Durán in an upright position to remove the catheter in light
of his morbid obesity. In their view, Suero-Durán died because of
a sudden cardiac arrhythmia resulting from his delicate medical
condition rather than an air embolism. They also maintained that the
hospital staff called a code green and performed CPR in a timely
manner.
The jury returned a verdict in favor of Suero-Algarín,
awarding him $1,000,000 for his pain and suffering. The jury
apportioned fault as follows: 10% to HIMA, 30% to TVG, 30% to
9 The Trendelenburg position requires that the patient be laid flat
on his back with his feet elevated above the head.

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Dr. Aponte, and 30% to Dr. Roca. Following the verdict, HIMA moved
for a judgment as a matter of law under Fed. R. Civ. P. 50(b) and
for a new trial under Fed. R. Civ. P. 59(a)(1), or in the alternative,
a remittitur of the jury's damages award. In its motion for judgment
as a matter of law, HIMA argued that the jury was presented with
insufficient evidence to merit a finding of liability. In its motion
for a new trial or remittitur, HIMA argued that, because Puerto Rico
law governed Suero-Algarín's claim, the excessiveness of the jury's
damages award had to be evaluated through the prism of the standard
established by the Supreme Court of Puerto Rico in Fresenius, which
allegedly required a comparative analysis of damages awarded in
similar cases in Puerto Rico courts. While it did not specify the
lower amount that it believed would constitute a reasonable award
under the Puerto Rico comparative standard, HIMA did compare the facts
and the award in this case to several other medical malpractice cases
from Puerto Rico courts. The final awards in those cases ranged from
a high of $55,000 (for each of the minor children of a decedent) to
a low of $20,000 (for the daughter of a decedent).
On July 6, 2017, the district court ruled on HIMA's motions
for post-judgment relief in an Omnibus Order. It denied HIMA's
motions for judgment as a matter of law and new trial, but it granted
its motion for remittitur, reducing the jury's award to $400,000.
See Suero-Algarín v. HIMA San Pablo Caguas, No. 3:14-cv-01508, 2017

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WL 4227586, at *4 (D.P.R. July 6, 2017). In reviewing the jury's award
for excessiveness, the district court declined HIMA's invitation to
apply the Puerto Rico comparative standard that it understood to have
been enunciated in Fresenius and instead applied the federal
standard -- i.e., "grossly excessive, inordinate, shocking to the
conscience . . ., or so high that it would be a denial of justice
to permit [the award] to stand." See id. at *3 (quoting Correa v.
Hosp. San Francisco, 69 F.3d 1184, 1197 (1st Cir. 1995)). In support
of its decision, the district court relied primarily on our opinion
in Marcano Rivera v. Turabo Medical Center Partnership, 415 F.3d 162,
172 (1st Cir. 2005), in which we held that "federal district courts
[did not have] to review damages for consistency with awards approved
by the Supreme Court of Puerto Rico in similar cases" because Puerto
Rico law did not "depart[] from the ordinary practice of reviewing
awards under the federal standards for judging excessiveness." See
Suero-Algarín, 2017 WL 4227586, at *3.
On August 19, 2017, Suero-Algarín accepted the reduced
$400,000 award, 10 and on September 5, 2017, final judgment entered
10 The district court granted Suero-Algarín the option of either
accepting the reduced award or proceeding to a new trial on damages.
Suero-Algarín, 2017 WL 4227586, at *4; see Conjugal P'ship of Jones
v. Conjugal P'ship of Pineda, 22 F.3d 391, 397 (1st Cir. 1994) ("Under
the practice of remittitur . . . the court may also condition the
denial of a motion for a new trial on the filing by plaintiff of a
remittitur in a stated amount." (quoting Phelan v. Local 305, 973
F.2d 1050, 1064 (2d Cir. 1992))).

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against the co-defendants. HIMA filed a timely appeal, claiming that
the district court erred in denying its motion for judgment as a matter
of law and in declining to apply the Fresenius comparative standard
in its review of the jury's award for excessiveness.
II. DISCUSSION
A. HIMA's Motion for Judgment as a Matter of Law
We review de novo the district court's denial of HIMA's
motion for judgment as a matter of law under Fed. R. Civ. P. 50(b).
Warner v. Horned Dorset Primavera, Inc. (In re Blomquist), 925 F.3d
541, 546 (1st Cir. 2019). "[O]ur scrutiny of the jury verdict,"
however, "is tightly circumscribed." Sailor Inc. F/V v. City of
Rockland, 428 F.3d 348, 351 (1st Cir. 2005) (internal quotation marks
omitted). Although we review the record as a whole, we construe facts
in the light most favorable to the jury verdict, draw any inferences
in favor of the non-movant, and abstain from evaluating the
credibility of the witnesses or the weight of the evidence. In re
Blomquist, 925 F.3d at 546. In sum, we must affirm the district
court's denial of HIMA's Rule 50(b) motion for judgment as a matter
of law "unless the evidence . . . could lead a reasonable person to
only one conclusion, namely, that [HIMA] was entitled to judgment."
Full Spectrum Software, Inc. v. Forte Automation Sys., Inc., 858 F.3d
666, 671 (1st Cir. 2017) (quoting Astro-Med, Inc. v. Nihon Kohden
Am., Inc., 591 F.3d 1, 13 (1st Cir. 2009)).

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HIMA challenges the district court's denial of its
Rule 50(b) motion arguing that the jury lacked a legally sufficient
evidentiary basis to find it responsible for 10% of Suero-Algarín's
damages. 11 HIMA sets out various reasons why the jury's finding of
either direct or vicarious liability is unsupported by the record.
We need not, however, address all of HIMA's contentions. 12 The record
clearly shows that the jury was, as a matter of law, presented
sufficient evidence to conclude that HIMA was liable for 10% of
Suero-Algarín's damages under Puerto Rico's apparent agency doctrine.
Under Puerto's Rico's "apparent or ostensible agency"
doctrine, hospitals and physicians are directly and jointly liable
to a victim of malpractice "when [the victim] goes directly to a
hospital for medical treatment and the hospital 'provides' the
physicians who treat him." Márquez Vega v. Martínez Rosado, 16 P.R.
Offic. Trans. 487, 497, 1985 WL 301900 (P.R. May 15, 1985). Puerto
Rico law draws a distinction between this situation and when "a person
11 HIMA does not argue that Dr. Aponte or Dr. Roca acted within the
applicable standard of care in relation to Suero-Durán's catheter
removal.
12 In its attempt to shield itself from vicarious liability, HIMA
avers that the jury was presented insufficient evidence to conclude
that Dr. Roca was an HIMA employee. To save itself from direct
liability, HIMA contends that any finding of direct liability based
on Suero-Algarín's allegations regarding the hospital's improper
credentialing of Dr. Aponte and Dr. Roca or its personnel's failure
to adequately respond to Suero-Durán's cardiorespiratory arrest was
also devoid of sufficient evidentiary support.

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goes directly to a physician's private office, agrees with him as
to the treatment he or she is going to receive, and goes to a given
hospital on the physician's recommendation merely because said
institution is one of several which the physician has the privilege
of using." Id. at 497-99. In the latter situation, " as a rule, the
hospital should not be held liable for the exclusive negligence of
an unsalaried physician," given that "the main relationship
established [there] is between the 'patient' and the physician." Id.
at 499. The apparent agency analysis focuses on "pinpointing
who . . . the patient . . . entrust[ed] with his health: the
hospital or the physician." Id. at 496-97. Thus, "[w]ithin this
factual framework, . . . it makes no difference whether the attending
physician is a hospital employee or not." Id. at 497.
Here, the jury was presented sufficient evidence to
conclude that Suero-Durán entrusted his health to HIMA rather than
to his treating physicians. At trial, Juan Gustavo Suero-Algarín
("Juan Gustavo"), Suero-Durán's other son, testified that he drove
his father directly to HIMA's emergency room after visiting him at
his home and noticing that his leg had "coloration" and was warm to
the touch. Juan Gustavo further testified that, upon arriving at
HIMA's emergency room, Suero-Durán was admitted to the hospital
through its regular emergency admission process. Specifically, he
narrated that Suero-Durán waited "about an hour, an hour and a half"

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in the emergency room waiting area; had his vital signs taken; was
told that he was "going to be staying" at the hospital; and eventually
was "assigned to a room because the emergency ward was full." As
detailed above, once Suero-Durán was admitted to the emergency room
on July 10, 2013, he never left the hospital again. Suero-Durán's
health complications prolonged his stay, which in turn subjected him
to Dr. Roca's aggravating intervention on August 11, 2013, and
eventually led to his death.
HIMA does not contest the jury's finding that Dr. Aponte's
and Dr. Roca's negligence caused Suero-Durán's death. Instead, HIMA
avers that Suero-Durán visited the hospital's emergency room
specifically seeking Dr. Lora's and Dr. Aponte's medical assistance,
and that he therefore entrusted his medical care to those particular
physicians. See Márquez Vega, 16 P.R. Offic. Trans. at 499. It
further contends that Dr. Aponte's prior relationship with
Suero-Durán also shields the hospital from any liability resulting
from Dr. Roca's negligence, given that Dr. Roca treated Suero-Durán
pursuant to Dr. Aponte's orders. Suero-Durán and Dr. Aponte did, in
fact, have a doctor-patient relationship prior to Suero-Durán's
July 10 emergency admission, and Dr. Roca did treat Suero-Durán
pursuant to Dr. Aponte's orders. However, this does not compel us
to find that the only conclusion a reasonable jury could have made
was that Suero-Durán entrusted his health to the treating physicians

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to the point of exempting the hospital from liability. Juan Gustavo's
testimony reflects that Suero-Durán went "directly to the hospital,"
and in these situations, Puerto Rico law provides that, because "the
main relationship established is between the patient and the hospital
administration," the hospital is "directly liable for the damage
caused by the physician." Id. at 498.
We therefore hold that in light of the apparent agency
doctrine, a reasonable factfinder could conclude that Juan Gustavo's
testimony provided a legally sufficient evidentiary basis to find
HIMA directly liable for 10% of Suero-Algarín's damages.
B. Standard for Reviewing Excessiveness of Damages Awarded Pursuant
to Puerto Rico's General Tort Statute
HIMA also contests the remitted verdict on the ground that
the district court should be bound by precedent from the Supreme Court
of Puerto Rico instead of federal law for determining the allowable
amount of damages. As HIMA sees it, federal courts sitting in
diversity must tether their remittitur calculations to the amounts
granted in similar medical malpractice cases in Puerto Rico. "The
choice of a legal standard presents an abstract question of law and,
thus, triggers de novo review." United States v. Maldonado-Rivera,
489 F.3d 60, 65 (1st Cir. 2007) (citing United States v. Huddleston,
194 F.3d 214, 218 (1st Cir. 1999)). If, however, the district court
does apply the correct standard, we review its application of the
standard for abuse of discretion. See id. (citing United States v.

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Natanel, 938 F.2d 302, 313 (1st Cir. 1991)).
1.
Pursuant to the Supreme Court's seminal decision in Erie
R.R. Co. v. Tompkins, 304 U.S. 64 (1938), "federal courts sitting
in diversity apply state substantive law and federal procedural law."
Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996).
To determine whether a state law classifies as "substantive" or
"procedural," we apply an "outcome-determination" test: "[D]oes it
significantly affect the result of . . . litigation for a federal
court to disregard a law of a State that would be controlling in an
action upon the same claim by the same parties in State court?" Id.
(quoting Guar. Tr. Co. v. York, 326 U.S. 99, 109 (1945)). We do not,
however, apply the "outcome-determination" test to "mechanically
. . . sweep in all manner of variations," id. at 428; rather, we apply
it guided by "the twin aims of the Erie rule: discouragement of
forum-shopping and avoidance of inequitable administration of the
laws," id. (quoting Hanna v. Plumer, 380 U.S. 460, 468 (1965)). When
a state law is substantive in part and procedural in part, the relevant
question for Erie purposes is "whether federal courts can give effect
to the substantive thrust . . . without untoward alteration of the
federal scheme for the trial and decision of civil cases." Id. at
426.
In Gasperini, the Supreme Court examined a law codified

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by the New York Legislature, which empowered appellate courts "to
review the size of jury verdicts . . . when the jury's award 'deviates
materially from what would be reasonable compensation.'" Id. at 418
(quoting N.Y. C.P.L.R. § 5501(c) (McKinney 2020)). The Supreme Court
held, inter alia, that "New York's Legislature codified in § 5501(c)
a new standard," that required "closer court review than the
common-law 'shock the conscience' test," and which involved "[m]ore
rigorous comparative evaluations" than required under federal law.
Id. at 429. Therefore, "if federal courts ignore[d] the . . . New
York standard and persist[ed] in applying the 'shock the conscience'
test to damage awards on claims governed by New York law, 'substantial
variations between state and federal [money judgments]' [could] be
expected." Id. at 429-30 (alteration in original) (quoting Hanna,
380 U.S. at 467-68). To that end, because "Erie precludes a recovery
in federal court [that is] significantly larger than the recovery
that would have been tolerated in state court," id. at 431, the Supreme
Court resolved that New York's "deviates materially" standard
amounted to a substantive rule of state law that federal appellate
courts sitting in diversity ought to apply when reviewing the
excessiveness of a jury's award, id. at 430.
The Gasperini Court acknowledged that New York's "deviates
materially" standard was both substantive and procedural: substantive
in the sense that the standard "control[led] how much a plaintiff

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[could] be awarded" and procedural "in that [it] assign[ed]
decisionmaking authority to New York's Appellate Division." Id. at
426. However, in the Court's view, the fact that New York's objective
in enacting § 5501(c) was "manifestly substantive" outweighed the
fact that the statute "contain[ed] a procedural instruction." Id.
at 429.
2.
HIMA's current challenge is déjà vu all over again. In
Marcano Rivera, HIMA appeared before this Court as the
defendant-appellant in another medical malpractice case to contest
the district court's post-verdict ruling that Gasperini did not
require a remittitur of damages in conformity with recent Puerto Rico
Supreme Court precedent. See 415 F.3d at 172. 13 Embarking on our
analysis, we extrapolated from Gasperini that, when it comes to
reviewing jury awards for excessiveness, "federal courts sitting in
diversity must apply state substantive law standards . . . if the
state law departs from the federal standards for judging
excessiveness." Id. at 171. Under the federal standard, courts will
reduce a damages award if it is "grossly excessive, inordinate,
13 In Marcano Rivera, unlike here, the district court did not grant
HIMA's motion for remittitur because it was unpersuaded that the award
of $5.5 million (of which HIMA would have to pay $2.585 million) to
the parents of an infant who suffered severe neurological damage
during delivery because of negligence shocked the conscience. 415
F.3d at 165-167, 173-74.

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shocking to the conscience of the court, or so high that it would
be a denial of justice to permit it to stand." Monteagudo v.
Asociación de Empleados del Estado Libre Asociado de P.R., 554 F.3d
164, 174 (1st Cir. 2009) (quoting Marcano Rivera, 415 F.3d at 173);
see also Grunenthal v. Long Island R.R. Co., 393 U.S. 156, 159 n.4
(1968). At the time we decided Marcano Rivera, circuit precedent was
clear that Puerto Rico law did not meaningfully depart from the federal
standard for judging excessiveness so as to trigger Gasperini.
See 415 F.3d at 172 (quoting Grajales-Romero v. Am. Airlines, Inc.,
194 F.3d 288, 300 (1st Cir. 1999)) (Puerto Rico law "suggests no such
departure" from the ordinary practice of reviewing damage awards under
the federal standard).
Thus, in Marcano Rivera, HIMA based its argument for
remittitur on the fact that "none of the cases in which we [had]
rejected Gasperini arguments involved medical malpractice claims."
415 F.3d at 172. In support, HIMA pointed to two medical malpractice
cases in which the Supreme Court of Puerto Rico had remitted damages
awards: Nieves Cruz v. Universidad de P.R., 151 P.R. Dec. 150 (2000);
Blás Toledo v. Hosp. Nuestra Sra. de la Guadalupe, 146 P.R. Dec. 267
(1998). HIMA offered those cases as examples of the Supreme Court
of Puerto Rico acting in conformance with its decision to reduce a
damages award in Riley v. Rodríguez de Pacheco, 119 P.R. Dec. 762
(1987), another medical malpractice case, based on the premise that

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compensation becomes punitive without reasonable limitations.
See Marcano Rivera, 415 F.3d at 172 (citing Nieves, 151 P.R. Dec.
150 (certified translation)). HIMA insisted that, taken together,
these cases "reflect[ed] a Puerto Rico standard for reviewing damages
awards in medical malpractice cases that [both] differ[ed] from the
federal standard of reviewing to determine whether an award is
'grossly excessive'" and was tantamount to substantive law that ought
to be applied by a federal court sitting in diversity. Id.
Despite viewing the issue as "a close one," we affirmed
the denial of remittitur because "we [could not] say, on the basis
of the available precedents, that Puerto Rico case law suggests a
'departure from [the] ordinary practice of reviewing awards under
the federal standards for judging excessiveness.'" Id. at 172-73
(alteration in original) (quoting Grajales-Romero, 194 F.3d at 300).
We observed that, despite HIMA's efforts to depict an emerging trend,
in Nieves, the Supreme Court of Puerto Rico clearly reiterated its
long-held position that it "will not intervene in the decision on
the estimation of damages issued by the lower courts, unless the
amounts granted are ridiculously low or exaggeratedly high." Id. at
172. (quoting Nieves, 151 P.R. Dec. 150 (certified translation)).
Unlike New York's "deviates materially" standard, we determined that
"Puerto Rico's 'exaggeratedly high' standard echoes the federal
'grossly excessive' standard," as evidenced by the fact that it "has

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been expressed in terms similar to the federal standard." Id. at
172-73. We therefore concluded that, as of 2005, the Supreme Court
of Puerto Rico had not "adopted a more rigorous standard of review
for medical malpractice damages that [was] tantamount to a substantive
rule of law that must be applied in diversity cases" under Gasperini.
Id. at 173.
Accordingly, the threshold issue in the case at bar is
whether, given the alleged developments in precedent relating to an
appellate court's review of damages awards in medical malpractice
cases, we can now definitively say that Puerto Rico's standard departs
from the federal "grossly excessive" or "shocks the conscience"
standard and is therefore substantive law akin to New York's "deviates
materially" standard; or whether the Puerto Rico standard merely
echoes the federal standard and is therefore procedural law that
federal courts sitting in diversity need not apply.
3.
HIMA presents us with newly available Puerto Rico Supreme
Court precedent, which purportedly indicates that Puerto Rico law
has evolved since our decision in Marcano Rivera to the point that
its standard for reviewing damages awards in medical malpractice cases
now departs from the federal standard. HIMA contends that the
remitted verdict cannot stand because the district court incorrectly
applied the federal "shock the conscience" standard when conducting

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its analysis instead of Puerto Rico's more rigorous standard. In
HIMA's view, after our decision in Marcano Rivera, the Supreme Court
of Puerto Rico gradually moved towards a "specific methodology" that
requires appellate courts to "look to damages awarded in similar cases
and adjust those awards to the present value" using "the consumer
price index" as the exclusive means for factoring in "the change in
the acquisition power of the dollar" (i.e., the comparative standard).
HIMA relies on Rodríguez v. Hosp. Susoni, 186 P.R. Dec. 889 (2012),
and Herrera, Rivera v. S.L.G. Ramírez-Vicéns, 179 P.R. Dec. 774
(2010).
According to HIMA, the Puerto Rico Supreme Court's 2014
decision in Fresenius "cemented [this] specific procedure" such that
the comparative standard should now be understood to amount to
substantive law that federal courts ought to apply when sitting in
diversity in actions governed by Puerto Rico's general tort statute. 14
Not applying this "comparative" standard, HIMA contends, would
violate the dictates of Gasperini and Erie by resulting in
"substantial variations between state and federal money judgments."
As such, HIMA requests that we set aside the district court's
remittitur and remand for re-assessment consistent with Puerto Rico's
14 Article 1802 of the Puerto Rico Civil Code, P.R. Laws Ann. tit.
31, § 5141 ("Article 1802"), provides that "[a] person who by an act
or omission causes damage to another through fault or negligence shall
be obliged to repair the damage so done."

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"comparative" standard as cemented by the Fresenius decision.
However, because Puerto Rico's "exaggeratedly high" standard still
echoes the federal "grossly excessive" standard even after Fresenius,
we see no reason to depart from our holding in Marcano Rivera. We
therefore affirm the remitted verdict.
A close reading of Fresenius reveals that, on a global
level, the decision is more properly characterized as a restatement
that stresses relevant considerations than a meaningful change of
direction. This is best exhibited by the conservative disclaimer in
the opening line of the opinion that "[i]n this case, we reaffirm
the postulates of estimation and assessment of damages that we
established in [Rodríguez v. Hosp. Susoni, 186 P.R. Dec. at 908-09]."
Fresenius, 195 P.R. Dec. at 478. As in Nieves, the Supreme Court of
Puerto Rico took the opportunity in Fresenius to re-articulate the
enduring Puerto Rico standard: "appellate courts should not intervene
with the assessment of damages made by the primary forum, except when
the amount awarded is ridiculously low or exaggeratedly high." Id.
at 490 (citing Rodríguez, 186 P.R. Dec. at 909; Herrera, Rivera, 179
P.R. Dec. at 784). Under Puerto Rico's traditional standard for
reviewing damages awarded pursuant to Article 1802, which we can trace
back to the first half of the twentieth century, see, e.g., Rodríguez
v. Am. P.R. Co. of P.R., 43 P.R.R. 472, 481-482 (P.R. 1932), appellate
courts refrain from reducing a trial court's award unless they can

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determine that the amount awarded was "absurdly low or exaggeratedly
high," see Rodríguez Cancel v. P.R. Elec. Power Auth., 16 P.R. Offic.
Trans. 542, 552 (P.R. 1985) (emphasis added).
As explained above, we have already held that the
"exaggeratedly high" standard does not depart from the federal
standard. See Marcano Rivera, 415 F.3d at 173. Thus, to distinguish
this case from Marcano Rivera, HIMA points to what it understands
to be the two ways in which Fresenius "cemented its mandate for
uniformity to prior similar cases in the award of damages." First,
under HIMA's theory, it instructed courts to consult comparator cases;
and second, it endorsed a method for adjusting the awards in those
cases for inflation based on the consumer price index. This two-step
analysis, HIMA contends, "is almost identical to the framework adopted
by the New York statute in Gasperini" in that it effectively "provides
a control over damages that operates similar to a cap" by "forbid[ding]
arbitrary awards." Even if there is no "pre-determined" limit for
all cases, HIMA suggests that "the parties to a tort action should
be able to conduct the analysis and determine a concrete range for
a potential award." However, in our view, Puerto Rico's "exaggeratedly
high" standard has not evolved through the articulation of these
features in Fresenius into substantive law that compels a different
outcome from Marcano Rivera.
HIMA appears to hang its hat on the statement in Fresenius

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that to determine whether or not an award is "exaggeratedly high,"
a reviewing court "must examine the evidence filed before that forum
and the amounts granted in similar cases previously resolved." 195
P.R. Dec. at 491 (citation omitted). 15 This is the instruction by
which, according to HIMA, the Supreme Court of Puerto Rico "manifestly
created substantive law applicable to tort claims in Puerto Rico."
This, HIMA contends, has made the Puerto Rico standard more rigorous
and thus the functional equivalent of New York's "deviates materially"
standard, under which New York state courts also look to awards given
in similar cases. See Gasperini, 518 U.S. at 425. However, to the
extent that it relies on this statement, HIMA overstates its case,
because the Fresenius court proceeded to clarify that "the
compensations granted in previous cases constitute a useful starting
point and reference for passing judgment on the concessions granted
by the primary forum." 195 P.R. Dec. at 491 (emphasis added). The
use of "must" and "useful starting point" in back-to-back sentences
certainly adds a layer of confusion to interpreting the Puerto Rico
Supreme Court's meaning, but the most sensible reading is that to
15 For instance, Puerto Rico courts draw comparisons based on the
cause of the victims' injuries and the victims' relationships to the
plaintiffs. In Fresenius, the Supreme Court of Puerto Rico compared
the amount awarded to plaintiff's children for the loss of their mother
as a result of the defendant's medical malpractice related to
hemodialysis to the amounts it had awarded to a son for the loss of
his father due to a hospital's malpractice following a car crash,
and to two children who lost their mother due to the staff's neglect
at a mental health clinic. 195 P.R. Dec. at 502-03.

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the extent that Fresenius changed anything by articulating the
importance of consulting comparator cases, it is that these cases
are to be used as guideposts (i.e., something "useful" to be
considered), not as mandatory requirements. See id. at 491, 493.
This interpretation is consistent with precedent dating back decades.
See Soc. De Gananciales v. F.W. Woolworth & Co., 143 P.R. Dec. 76,
81-82 (1997) (per curiam) (certified translation) ("[I]n order to
determine whether or not the assessment of damages in a specific case
is appropriate, it is certainly useful to examine the sums awarded
by this Court in previously similar cases, without implying they can
be considered as mandatory precedents."); Rodríguez Cancel, 16 P.R.
Offic. Trans. at 552-553 (citing Widow of Silva v. Soc. Española de
Auxilio Mutuo & Great Am. Ins. Co., 100 P.R.R. 30 (1971); Baralt v.
García, 78 P.R.R. 123 (1955) (per curiam)) ("That is why -- although
it is advisable that trial courts be guided by the amounts awarded
by this Court in 'similar' cases -- the decision rendered in a
specific case with regard to this matter cannot operate as binding
precedent on another case.").
Furthermore, in constructing its argument, HIMA places
great weight on the Fresenius court's statements (echoing Herrera)
that "[it was] obliged to warn the judges about the importance of
detailing in their opinions the cases that are used as reference or
starting point[s] for the estimation and assessment of damages," and

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that "it is necessary to explain which cases are used as a reference
and how the amounts granted are adjusted in such cases prior to the
case before the court." 195 P.R. Dec. at 493. However, the opinion
makes quite clear that the actual impetus for those statements was
the Puerto Rico Supreme Court's frustration with the fact that the
"primary forum did not mention in its opinion what similar cases it
used as a guide" or "explain the calculation that was made to determine
the amounts granted" despite the fact that it had indicated that "it
had carried out an analysis of those cases." Id. at 492-93. In
context, the directive behind the court's lament is clear: if and
when courts look to comparator cases (which are not meant to dictate
a specific award in a specific case, even if the facts are similar),
they must take great care to identify which cases they are looking
to and how they calculate or recalculate their awards.
In any event, it is unclear that urging courts to consult
awards granted in prior similar cases to determine whether an award
is "exaggeratedly high" would necessarily upgrade the Puerto Rico
standard from procedural to substantive law. See Arpin v. United
States, 521 F.3d 769, 776 (7th Cir. 2008) ("[W]hether or not to permit
comparison evidence in determining the amount of damages to award
in a particular case is a matter of procedure rather than of substance,
as it has no inherent tendency (as does a rule requiring heightened
review of damages awards challenged as excessive, as in Gasperini

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. . .) either to increase or decrease the average damages award; the
tendency is merely to reduce variance."). After all, in Gasperini,
it was not the use of comparison evidence per se that made the "deviates
materially" standard substantive law, for New York courts had "also
referred to analogous cases" under its preceding version of the "shock
the conscience" test. Gasperini, 518 U.S. at 425. What moved the
needle was the Supreme Court's determination that the standard itself
"in design and operation, influence[d] outcomes by tightening the
range of tolerable awards." Id. There is simply no language in
Fresenius that indicates that the "useful starting point" of
"examin[ing] . . . the amounts granted in similar cases" is the
equivalent of a functional statutory cap on damages like New York's
§ 5501(c) that locks medical malpractice awards within the
pre-determined range set by prior awards. Fresenius, 195 P.R. Dec.
at 491.
Relatedly, that Fresenius endorses a particular method for
updating the value of awards granted in prior similar cases to the
present value does not tip the scales in our Gasperini analysis.
Prescribing a formula for adjusting for inflation is a matter of
procedural law, regardless of whether the Supreme Court of Puerto
Rico had cemented it before or after our decision in Marcano Rivera.
As HIMA itself acknowledges, Fresenius merely takes care to reiterate
a particular formula for expressing the value of prior awards in

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modern-day economic terms to facilitate an accurate comparison
between cases over time. Specifically, because of a lingering
disagreement among experts, the decision endorsed the use of a
two-step method for adjusting prior award amounts for inflation based
on the incorporation of the consumer price index reported by the Puerto
Rico Department of Labor and Human Resources. See id. at 495-98
(citing Rodríguez, 186 P.R. Dec. at 941). There is, however, no basis
on which to hold that Puerto Rico's "exaggeratedly high" standard
is now so much more rigorous that it departs from the federal "grossly
excessive" standard because of this computational feature, which
cannot be said to materially impact the outcome of the remittitur
analysis.
Accordingly, we have no difficulty concluding that even
after Fresenius, Puerto Rico's "exaggeratedly high" standard still
does not depart from the federal "grossly excessive" standard. 16
16 Because we decide that Puerto Rico law is procedural, we need not
decide whether federal courts can enforce the "substantive thrust"
of the "comparative standard" without unsettling the federal scheme
of jury trials in civil cases under the Seventh Amendment. Whereas
Gasperini dealt with the Reexamination Clause, here, it is the "trial
by jury" Clause that comes into view because there are no jury trials
in the Puerto Rico civil system. See González-Oyarzún v. Caribbean
City Builders, Inc., 798 F.3d 26, 27-29 (1st Cir. 2015) (per curiam).
As the thinking goes, the primary concern would be that applying the
comparative standard as binding substantive state law in federal court
could undermine the Seventh Amendment right to a jury trial by
requiring federal courts to draw comparisons to Puerto Rico cases
whose damages awards were determined in the first instance by judges
and not juries. However, as stated above, we do not reach this
question.

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Therefore, the district court correctly applied the federal standard
in its remittitur analysis. Accordingly, it did not abuse its
discretion in remitting the verdict.
III. CONCLUSION
We therefore affirm the district court's denial of HIMA's
motion for judgment as a matter of law as well as its remitted verdict.
Affirmed.

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