Belfort v. Corporacion Hogar San Agustin y Teresa, Inc. et al, No. 3:2007cv01240 - Document 107 (D.P.R. 2008)
Court Description: ORDER granting 83 Plaintiff's Motion for Partial Summary Judgment as to Liability. Trial scheduled for 1/20/09 shall be limited to damages only. Signed by Judge Raymond L. Acosta on 12/18/08. (ans)
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Belfort v. Corporacion Hogar San Agustin y Teresa, Inc. et al Doc. 107 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 1 2 3 NANCY BELFORT, 4 Plaintiff, 5 v. CIVIL NO. 07-1240 (RLA) 6 7 8 CORPORACION HOGAR SAN AGUSTIN Y TERESA, et al., Defendants. 9 ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO LIABILITY AND LIMITING TRIAL TO DAMAGES 10 11 12 13 14 15 Plaintiff has moved the court to enter partial summary judgment in this action finding that defendant’s acts or omissions were negligent and the proximate cause of the death of decedent JUANA BELFORT. The court having reviewed plaintiff’s legal arguments as well as 16 the documents submitted in support therewith hereby finds that a 17 finding of liability as requested is warranted. 18 PROCEDURAL BACKGROUND 19 Plaintiff, NANCY BELFORT, instituted this action seeking damages 20 21 22 for the death of her mother allegedly caused by the negligence of the defendant HOGAR SAN AGUSTIN Y TERESA (“HOGAR”). At the Further Initial Scheduling Conference held on May 30, 23 2008,1 the following discovery deadlines relevant to the matter 24 currently before us were set: 25 26 1 See Minutes (docket No. 63). Dockets.Justia.com 1 CIVIL NO. 07-1240 (RLA) Page 2 2 6/30/08 HOGAR to provide a description of the witnesses listed 3 as #4 to #16 in the Second Joint ISC memorandum 4 (docket No. 58) and their knowledge of decedent and/or 5 her pain.2 6 HOGAR to identify expert witnesses. 7/31/08 HOGAR to submit expert witness reports. 7/31/08 Conclusion 7 6/30/08 8 9 of depositions of parties and/or fact witnesses. 10 8/12/08 Blocked for deposition of HOGAR’s expert witnesses. 11 8/26& 28/08 Alternate dates for expert depositions. 10/17/08 Dispositive Motions 12 13 At the STATUS/SETTLEMENT CONFERENCE held on September 11, 2008,3 14 the court became aware that HOGAR had failed to provide a description 15 of its witnesses listed as #4 through #16 nor had defendant complied 16 with the deadlines pertaining to expert witnesses. Accordingly, both 17 those particular fact witnesses as well as plaintiff’s expert 18 witnesses were deemed waived. 19 Defendant’s subsequent request for reconsideration of this 20 ruling was denied. In its order denying reconsideration the court 21 noted that “[a]part from the fact that petitioner has failed to 22 23 2 24 25 26 HOGAR was specifically admonished that failure to provide this information by the court-imposed deadline would result in the automatic waiver of these witnesses in this action. See Minutes (docket No. 63) n.1. 3 See Minutes (docket No. 76). 1 CIVIL NO. 07-1240 (RLA) Page 3 2 adduce any valid reason for disregarding the court’s case management 3 orders, allowing petitioner to comply with its discovery obligations 4 at this late date would in effect deprive plaintiff of its [sic] 5 right to take the depositions of these fact and expert witnesses.”4 6 LOCAL RULE 56(c) 7 Motions for summary judgment must comport with the provisions of 8 Local Rule 56(c) which, in pertinent part, reads: 9 A party opposing a motion for summary judgment shall 10 submit with its opposition a separate, short, and concise 11 statement of material facts. The opposing statement shall 12 admit, deny or qualify the facts by reference to each 13 numbered paragraph of the moving party’s statement of 14 material facts and unless a fact is admitted, shall support 15 each denial or qualification by a record citation as 16 required by this rule. The opposing statement may contain 17 in a separate section additional facts, set forth in 18 separate numbered paragraphs and supported by a record 19 citation as required by subsection (e) of this rule. 20 This provision specifically requires that in its own statement 21 of material fact respondent either admit, deny, or qualify each of 22 movant’s proffered uncontested facts and for each denied or qualified 23 statement cite the specific part of the record which supports its 24 25 4 26 88). Order Denying Defendant’s Motion for Reconsideration (docket No. 1 CIVIL NO. 07-1240 (RLA) Page 4 2 denial or qualification. Respondent must prepare its separate 3 statement much in the same manner as when answering the complaint. 4 The purpose behind the local rule is to allow the court to 5 examine each of the movant’s proposed uncontested facts and ascertain 6 whether or not there is adequate evidence to render it uncontested. 7 “This ‘anti-ferret’ rule aims to make the parties organize the 8 evidence rather than leaving the burden upon the district judge.” 9 Alsina-Ortiz v. Laboy, 400 F.3d 77, 80 (1st Cir. 2005). “The purpose 10 of this ‘anti-ferret rule’ is to require the parties to focus the 11 district court’s attention on what is, and what is not, genuinely 12 controverted. Otherwise, the parties would improperly shift the 13 burden of organizing the evidence presented in a given case to the 14 district court.” Mariani-Colon v. Dep’t of Homeland Sec., 511 F.3d 15 216, 219 (1st Cir. 2007) (internal citations omitted). See also, 16 Morales v. A.C. Orssleff’s EFTF, 246 F.3d 32, 33 (1st Cir. 2001) 17 (summary judgment should not “impose [upon the court] the daunting 18 burden of seeking a needle in a haystack”); Leon v. Sanchez-Bermudez, 19 332 F.Supp.2d 407, 415 (D.P.R. 2004). 20 “When complied with, they serve to dispel the smokescreen behind 21 which litigants with marginal or unwinnable cases often seek to hide 22 and greatly reduce the possibility that the district will fall victim 23 to an ambush.” Caban Hernandez v. Philip Morris USA, Inc., 486 F.3d 24 1, 7 (1st Cir. 2007) (citation, internal quotation marks and brackets 25 omitted). 26 1 CIVIL NO. 07-1240 (RLA) Page 5 2 Apart from the fact that Local Rule 56(e) itself provides that 3 “[f]acts contained in a supporting or opposing statement of material 4 facts, if supported by record citations as required by this rule, 5 shall be deemed admitted unless properly controverted” in discussing 6 Local Rule 311.12, its predecessor, the First Circuit Court of 7 Appeals stressed the importance of compliance by stating that the 8 parties who ignore its strictures run the risk of the court deeming 9 the facts presented in the movant’s statement of fact admitted. 10 “Given the vital purpose that such rules serve, litigants ignore them 11 at their peril. In the event that a party opposing summary judgment 12 fails to act in accordance with the rigors that such a rule imposes, 13 a district court is free, in the exercise of its sound discretion, to 14 accept the moving party’s facts as stated.” Id. See also, Alsina15 Laboy, 400 F.3d at 80 (“Where the party opposing summary judgment 16 fails to comply, the rule permits the district court to treat the 17 moving party’s statement of facts as uncontested”); Cosme-Rosado v. 18 Serrano-Rodriguez, 360 F.3d 42, 46 (1st Cir. 2004) (“uncontested” 19 facts pleaded by movant deemed admitted due to respondent’s failure 20 to properly submit statement of contested facts.) 21 “[A]bsent such rules, summary judgment practice could too easily 22 become a game of cat-and-mouse, giving rise to the ‘specter of 23 district court judgment being unfairly sandbagged by unadvertised 24 factual issues.’” Ruiz-Rivera v. Riley, 209 F.3d 24, 28 (1st Cir. 25 26 1 CIVIL NO. 07-1240 (RLA) Page 6 2 2000) (citing Stepanischen v. Merchants Despatch Transp. Corp., 722 3 F.2d 922, 931 (1st Cir. 1983)). 4 Providing an alternative statement of facts without addressing 5 the movant’s factual proposals individually does not conform to the 6 Local Rule’s mandate and will cause defendant’s proffered facts to be 7 deemed uncontested. Mariani-Colon, 511 F.3d at 219. Further, denials 8 without more are ineffective. Rather, the opposing party “must offer 9 specific facts to counter those set out by the existence [defendant]. 10 [N]onmovant’s facts must demonstrate of definite 11 competent evidence fortifying plaintiff’s version of the truth. This 12 is the case even where motive and intent are at issue. [Plaintiff] 13 may not meet his burden by citing an inequity and tacking on the 14 self-serving conclusion that the defendant was motivated by a 15 discriminatory animus.” Arroyo-Audifred v. Verizon Wireless, Inc., 16 527 F.3d 215, 219-20 (1st Cir. 2008) (internal citations and quotation 17 marks omitted). 18 A party’s failure to abide by the strictures of Local Rule 19 56(c), however, does not automatically entitle movant to summary 20 judgment as requested. “It mainly means that the district judge can 21 accept the moving party’s allegedly uncontested facts as true, but 22 whether or not this justifies summary judgment for the moving party 23 depends upon the legal and factual configuration that results.” Caban 24 Hernandez, 486 F.3d at 8. 25 26 1 CIVIL NO. 07-1240 (RLA) Page 7 2 In the case before us, HOGAR did not raise particularized 3 objections to plaintiff’s proffered Statement of Facts as mandated by 4 Local Rule 56(c).5 Accordingly, we shall consider plaintiff’s 5 submitted facts - which have adequate evidentiary support - as 6 uncontested. 7 UNCONTESTED FACTS 8 We find the following facts submitted by plaintiff which are 9 duly supported by the evidence are uncontested. 10 1. Plaintiff NANCY BELFORT is decedent JUANA BELFORT’s 11 daughter. 12 2. Plaintiff signed a contract with HOGAR for the care of her 13 mother and thus was fully responsible for the monthly 14 payments, decedent’s personal needs and any other 15 miscellaneous needs. 16 3. Pursuant to the aforementioned contract, HOGAR was 17 responsible for decedent’s security, safety and medical 18 treatment. 19 20 21 22 23 24 25 26 5 Instead, defendant submitted its own Controverted Material Facts in its response to plaintiff’s summary judgment request. See Controverted Material Facts (docket No. 93). However, the vast majority of those facts are based either on the statements of individuals or on the opinion of defendant’s expert all of which were previously stricken by the court. Additionally, we concur with the objections raised by plaintiff as to the remaining proffered facts. Based on the foregoing, we need not consider defendant’s alleged material facts in controversy for purposes of disposing of plaintiff’s summary judgment request. 1 CIVIL NO. 07-1240 (RLA) Page 8 2 4. Decedent was admitted to the HOGAR in February 2002 where 3 she remained until September 2006. 4 5. MYRIAM AVILES, plaintiff’s cousin, visited decedent 5 regularly at the HOGAR and kept plaintiff informed as to 6 decedent’s condition. 7 6. DR. RAUL ROSADO FIGUEROA was the only physician provided by 8 HOGAR to care for decedent and was, in effect, her treating 9 physician. 10 7. When decedent arrived at the HOGAR, she was able to 11 ambulate, albeit with difficulty. 12 8. At least by May 2006, the Sunday prior to Mother’s day, 13 decedent was placed in a wheelchair. Her relatives were 14 informed that it was to prevent falls. 15 9. According to the notes of DR. RAUL ROSADO FIGUEROA, from 16 2002 to 2006 decedent’s muscular-skeletal system was “o.k.” 17 with no changes and she could ambulate with difficulty. 18 This statement continued in the record even after decedent 19 was placed in a wheelchair. 20 10. Shortly after decedent was placed in a wheelchair, she 21 became bedridden as a result of a fracture of her right hip 22 evidenced by an x-ray taken at Hospital Metropolitano. 23 12. A person with a displaced hip fracture such as the one 24 decedent had could not have basically normal extremities as 25 recorded by DR. RAUL ROSADO FIGUEROA. 26 1 CIVIL NO. 07-1240 (RLA) Page 9 2 13. At the time of her death JUANA BELFORT was 77 years old. 3 SUMMARY JUDGMENT STANDARD 4 Rule 56(c) Fed. R. Civ. P., which sets forth the standard for 5 ruling on summary judgment motions, in pertinent part provides that 6 they shall be granted “if the pleadings, depositions, answers to 7 interrogatories, and admissions on file, together with the 8 affidavits, if any, show that there is no genuine issue as to any 9 material fact and that the moving party is entitled to a judgment as 10 a matter of law.” Sands v. Ridefilm Corp., 212 F.3d 657, 660-61 (1st 11 Cir. 2000); Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (1st Cir. 12 1999). The party seeking summary judgment must first demonstrate the 13 absence of a genuine issue of material fact in the record. 14 DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997). A genuine 15 issue exists if there is sufficient evidence supporting the claimed 16 factual disputes to require a trial. Morris v. Gov't Dev. Bank of 17 Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994); LeBlanc v. Great Am. 18 Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993), cert. denied, 511 U.S. 19 1018, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994). A fact is material if 20 it might affect the outcome of a lawsuit under the governing law. 21 Morrissey v. Boston Five Cents Sav. Bank, 54 F.3d 27, 31 (1st Cir. 22 1995). 23 “In ruling on a motion for summary judgment, the court must view 24 ‘the facts in the light most favorable to the non-moving party, 25 drawing all reasonable inferences in that party's favor.’" Poulis26 1 CIVIL NO. 07-1240 (RLA) Page 10 2 Minott v. Smith, 388 F.3d 354, 361 (1st Cir. 2004) (citing Barbour v. 3 Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir. 1995)). “In 4 marshaling the facts for this purpose we must draw all reasonable 5 inferences in the light most favorable to the nonmovant. That does 6 not mean, however, that we ought to draw unreasonable inferences or 7 credit bald assertions, empty conclusions, rank conjecture, or 8 vitriolic invective.” Caban Hernandez v. Philip Morris USA, Inc., 486 9 F.3d 1, 8 (1st Cir. 2007) (internal citation omitted italics in 10 original). 11 Credibility issues fall outside the scope of summary judgment. 12 “‘Credibility determinations, the weighing of the evidence, and the 13 drawing of legitimate inferences from the facts are jury functions, 14 not those of a judge.’” Reeves v. Sanderson Plumbing Prods., Inc., 15 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citing 16 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 17 91 L.Ed.2d 202 (1986)). See also, Dominguez-Cruz v. Suttle Caribe, 18 Inc., 202 F.3d 424, 432 (1st Cir. 2000) (“court should not engage in 19 credibility assessments.”); Simas v. First Citizens' Fed. Credit 20 Union, 170 F.3d 37, 49 (1st Cir. 1999) (“credibility determinations 21 are for the factfinder at trial, not for the court at summary 22 judgment.”); Perez-Trujillo v. Volvo Car Corp., 137 F.3d 50, 54 (1st 23 Cir. 1998) (credibility issues not proper on summary judgment); 24 Molina Quintero v. Caribe G.E. Power Breakers, Inc., 234 F.Supp.2d 25 108, 26 113 (D.P.R. 2002). “There is no room for credibility 1 CIVIL NO. 07-1240 (RLA) Page 11 2 determinations, no room for the measured weighing of conflicting 3 evidence such as the trial process entails, and no room for the judge 4 to superimpose his own ideas of probability and likelihood. In fact, 5 only if the record, viewed in this manner and without regard to 6 credibility determinations, reveals no genuine issue as to any 7 material fact may the court enter summary judgment." Cruz-Baez v. 8 Negron-Irizarry, 360 F.Supp.2d 326, 332 (D.P.R. 2005) (internal 9 citations, brackets and quotation marks omitted). 10 In cases where the non-movant party bears the ultimate burden of 11 proof, he must present definite and competent evidence to rebut a 12 motion for summary judgment, Anderson v. Liberty Lobby, Inc., 477 13 U.S. at 256-257, 106 S.Ct. 2505, 91 L.Ed.2d 202; Navarro v. Pfizer 14 Corp., 261 F.3d 90, 94 (1st Cir. 2000); Grant's Dairy v. Comm'r of 15 Maine Dep't of Agric., 232 F.3d 8, 14 (1st Cir. 2000), and cannot rely 16 upon “conclusory allegations, improbable inferences, and unsupported 17 speculation”. Lopez-Carrasquillo v. Rubianes, 230 F.3d 409, 412 (1st 18 Cir. 2000); Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 19 (1st Cir. 1994); Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 20 5, 8 (1st Cir. 1990). 21 NEGLIGENCE 22 Plaintiff claims that defendant is liable due to the failure of 23 both the physician and the HOGAR’s staff to detect decedent’s 24 fractured hip and adequately monitor decedent’s condition. 25 26 1 CIVIL NO. 07-1240 (RLA) Page 12 2 Art. 1802 of the Puerto Rico Civil Code, P.R. Laws Ann. tit., 3 § 5141 (1990), governs tort liability in Puerto Rico. It provides 4 that “[a] person who by an act or omission causes damage to another 5 through fault or negligence shall be obliged to repair the damage so 6 done.” Negligence is the failure to exercise due diligence to avoid 7 foreseeable risks. 8 According to this provision, a person is liable for damages 9 resulting from his/her negligent acts or omissions. In order to 10 prevail plaintiff must establish: (1) a negligent act or omission, 11 (2) damages, and (3) a causal relationship between them. Irvine v. 12 Murad Skin Research Lab., Inc., 194 F.3d 313, 321 -322 (1st Cir. 13 1999); De-Jesus-Adorno v. Browning Ferris Indus. of P.R., Inc., 160 14 F.3d 839, 842 (1st Cir. 1998); Marshall v. Perez Arzuaga, 828 F.2d 15 845, 847 (1st Cir. 1987); Pons Anca v. Engebretson, 160 D.P.R. 347, 16 354 (2003); Montalvo v. Cruz, 144 D.P.R. 748, 755 (1998); Toro-Aponte 17 v. E.L.A., 142 D.P.R. 464, 473 (1997). 18 The mere fact that injuries or damages ensue is not grounds for 19 liability under art. 1802 for that would entail absolute liability. 20 Defendant will be liable only for those reasonably foreseeable 21 consequences to its conduct. De-Jesus-Adorno, 160 F.3d at 842; Pons 22 Anca, 160 D.P.R. at 354; Montalvo, 144 D.P.R. at 755; Toro-Aponte, 23 142 D.P.R. at 473; Ocasio Juarbe v. Eastern Airlines, Inc., 125 24 D.P.R. 410, 418 (1990) official translation reproduced in full in 902 25 26 1 CIVIL NO. 07-1240 (RLA) Page 13 2 F.2d 117 (1st Cir.1990); Jimenez v. Pelegrina Espinet, 112 D.P.R. 700, 3 704, (1982); Pacheco v. A.F.F., 112 D.P.R. 296, 300 (1982). 4 Additionally, pursuant to art. 1803 of the Puerto Rico Civil 5 Code, P.R. Laws Ann. tit., 31 § 5142 (1990), tort liability may be 6 incurred not only for personal [negligent] acts and omissions, but 7 also for those [negligent acts or omissions] of the persons for whom 8 [a principal] should be [held] responsible.” For instance, hospitals 9 and physicians can be held vicariously liable for the negligent acts 10 or omissions of their respective employees. Lopez v. Dr. Cañizares, 11 163 D.P.R. 119, 135 (2004); Blas v. Hosp. Guadalupe, 146 D.P.R. 267, 12 349 (1998). See also, Márquez Vega v. Martínez Rosado, 116 D.P.R. 13 397, 404-06 (1985) (hospitals jointly liable for acts or omissions of 14 physicians in the emergency room when the patient initially seeks 15 medical assistance from the hospital rather than directly from a 16 particular medical doctor). 17 Physicians are bound to furnish patients with that care and 18 attention which in light of modern means of communication and 19 knowledge satisfies the professional requirements generally 20 recognized by the medical profession at the time that the medical 21 care was provided. Lopez v. Dr. Cañizares, 163 D.P.R. at 133; Marti 22 v. Abreu, 143 D.P.R. 520, 526 (1997); Santiago Otero v. Mendez, 135 23 D.P.R. 540 (1994); Rodriguez Crespo v. Hernandez, 121 D.P.R. 639 24 (1988); Nuñez v. Cintron, 115 D.P.R. 598, 613 (1984). 25 26 1 CIVIL NO. 07-1240 (RLA) Page 14 2 In order to prevail in a medical malpractice action, plaintiff 3 must prove, by a preponderance of the evidence, that the physician 4 was negligent and that his negligence was the proximate cause of the 5 patient's injuries. Lopez v. Dr. Cañizares, 163 D.P.R. at 133; Blas 6 v. Hosp. Guadalupe, 146 D.P.R. at 350. 7 An injury or damage is proximately caused by an act or a failure 8 to act whenever it appears from the evidence in the case that the act 9 or omission was the factor which most probably brought about or 10 actually caused the injuries complained of, and that the injuries 11 were either a direct result or a reasonably probable consequence of 12 the act or omission charged by plaintiffs. Crespo v. Hernandez, 121 13 D.P.R. 639 (1988). 14 LIABILITY 15 According to DR. GERMAN MALARET, plaintiff's expert witness, 16 decedent’s fracture was a result of some kind of trauma most likely 17 a fall. This must have happened while decedent was at the HOGAR, most 18 probably prior to May 2006, since by that date she was confined to a 19 wheelchair. 20 If decedent was ambulating - albeit with difficulty - and 21 according to DR. ROSADO FIGUEROA’s notes her musculo-skeletal system 22 was in good condition gives rise to the question: why was she placed 23 in a wheelchair and subsequently bedridden? The logical conclusion 24 is that she was in pain or could not walk due to the hip fracture 25 26 1 CIVIL NO. 07-1240 (RLA) Page 15 2 which was not diagnosed by DR. ROSADO FIGUEROA and which also went 3 undetected by the HOGAR’s staff. 4 DR. MALARET opined that DR. ROSADO FIGUEROA was negligent in 5 that he failed to diagnose decedent’s fractured hip. Nor did the 6 HOGAR personnel, who were responsible for her daily care, become 7 aware of and/or ignored her condition. 8 Additionally, DR. MALARET indicated that the care provided by 9 the HOGAR’s staff for decedent’s ulcer condition was deficient in 10 that she was not turned as frequently as required. This type of ulcer 11 develops due to poor skin care and continued pressure in the area in 12 a patient that has poor circulation, particularly at the pressure 13 points, i.e., shoulders, hips, back, and heels. 14 DR. ROSADO FIGUEROA described for the first time a type-three 15 ulcer on September 1, 2006 which, according to DR. MALARET, means 16 that decedent had ulcers for a prolonged period of time prior to this 17 date. 18 Due to the untreated fracture, plaintiff was initially confined 19 to a wheelchair and subsequently bedridden which caused plaintiff to 20 develop severe decubitus ulcers in various parts of her body. DR. 21 MALARET concluded that decedent’s death was proximately caused by the 22 irreversible deterioration and complications resulting from her being 23 bedridden and the 24 deficiently treated. 25 26 ensuing grave ulcerous condition which was 1 CIVIL NO. 07-1240 (RLA) Page 16 2 It is axiomatic that in this particular case the HOGAR is 3 responsible for the negligent acts or omissions of both DR. ROSADO 4 FIGUEROA and its employees. Similar to a hospital setting, this 5 physician was contracted directly by the institution to provide 6 medical care to the confined elderly population. As a matter of fact, 7 it is undisputed that this was the only medical doctor who regularly 8 attended decedent at the nursing home. 9 Thus, we find that defendant’s negligence has been clearly 10 established by plaintiff’s expert witness.6 The record reflects that 11 decedent’s fractured hip went undetected by the treating physician 12 for an inordinate period of time. 13 The negligence of the HOGAR’s staff is also well supported in 14 DR. MALARET’s report. Again, there is no reference to decedent’s 15 fracture in the HOGAR’s records. It is evident from DR. MALARET’s 16 conclusions that the HOGAR staff was negligent both in failing to 17 detect decedent’s fracture and also in being derelict in the care of 18 a wheelchair bound and bedridden patient which resulted in the 19 development of decubitus ulcers. 20 Thus, the delay both by the physician and the staff in noticing 21 the fracture added to the failure to adequately handle the bedridden 22 23 24 6 25 26 Defendant’s arguments in the opposition to the summary judgement request are based exclusively on the testimony of its expert and personnel all of which were stricken by the court. Accordingly, this evidence may not be considered in our ruling. 1 CIVIL NO. 07-1240 (RLA) Page 17 2 patient caused her to develop the decubitus ulcers which eventually 3 resulted in her death. 4 CONCLUSION 5 Based on the foregoing, plaintiff’s Motion for Partial Summary 6 Judgment as to Liability (docket No. 83)7 is GRANTED. 7 Accordingly, we find that defendant is liable for the negligent 8 acts or omissions of DR. ROSADO FIGUEROA as well as those of the 9 HOGAR’s staff which negligence was the proximate cause of decedent’s 10 demise. 11 It is further ORDERED that the trial scheduled for January 20, 12 2009, shall be limited to damages only. 13 IT IS SO ORDERED. 14 San Juan, Puerto Rico, this 18th day of December, 2008. 15 16 S/Raymond L. Acosta RAYMOND L. ACOSTA United States District Judge 17 18 19 20 21 22 23 24 25 26 7 See Opposition (docket No. 92) and Reply (docket No. 102).
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