JOHN KENYON, individually, on behalf of his conjugal partnership and as parent and natural guardian of C.A.K.; RHEA KENYON, individually, on behalf of her conjugal partnership and as parent and natural guardian of C.A.K.; C.A.K.; CONJUGAL PARTNERSHIP KENYON-KENYON, Plaintiffs, Appellants, v. DR. RICARDO CEDENO-RIVERA; DR. JUAN R. JIMENEZ-BARBOSA; DR. MARIA DE LOS ANGELES RODRIGUEZ-MALDONADO; SIMED, Insurers Syndicate for the Joint Underwriting of Medical-Hospital Professional Liability Insurance; SIMED 1, as insurer for Dr. Juan R. Jimenez-Barbosa; SIMED 3, as insurance carrier of Dr. Maria de los Angeles Rodriguez; SIMED 4, as insurance carrier of Dr. Ricardo Cedeno-Rivera; DR. EVELYN GONZALEZ-DEL RIO; DR. MARIA COMAS-MATOS; JOE DOES 1-10; INSURANCE COMPANIES A to Z; JOHN DOE 1; CONJUGAL PARTNERSHIP DOE 1-COMAS; JOHN DOE 2; CONJUGAL PARTNERSHIP DOE 2-GONZALEZ; CONJUGAL PARTNERSHIP CEDENO-DOE 2; JOHN DOE 3; CONJUGAL PARTNERSHIP DOE 3-RODRIGUEZ; SIMED 2, as insurance carrier of Dr. Evelyn Gonzalez-del Rio; SIMED 5, as insurance carrier of Dr. Maria Comas-Matos; MS. RICARDO CEDENO RIVERA, wife of Ricardo Cedeno-Rivera, Defendants, Appellees, HOSPITAL SAN ANTONIO, INC., Defendant, Third-Party Plaintiff, Appellee, SIMED 7, insurer of Dr. Richard Doe; SERVICIOS MEDICOS DE ANASCO, INC.; MUNICIPALITY OF ANASCO; DR. RICHARD DOE; MARY ROE, wife of Dr. Richard Doe; CONJUGAL PARTNERSHIP DOE-DOE, composed by Dr. Richard Doe and Mary Doe; DR. MARY ROE; RICHARD ROE, husband of Dr. Mary Roe; CONJUGAL PARTERNSHIP ROE-ROE, composed by Richard Roe and Dr. Mary Roe; THOMAS ROE; ABC INSURANCE CO.; DEF INSURANCE CO.; HIJ INSURANCE COMPANY; JKL INSURANCE CO.; RQS INSURANCE COMPANY; COMPANY MNO; COMPANY OPQ; SIMED 8, insurer of DR. Mary Roe; DR. FRANCISCO MORALES, Third-Party Defendants, Appellees, ADMIRAL INSURANCE COMPANY; JANE DOE 3; CONJUGAL PARTNERSHIP JIMENEZ-DOE 3, Defendants.
Nos. 17-1686, 17-2217
United States Court of Appeals For the First Circuit
August 25, 2022
Kayatta and Howard, Circuit Judges.*
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Silvia L. Carreño-Coll, U.S. Magistrate Judge]
James Healy, with whom Julie Soderlund and Sullivan & Brill, LLP were on brief, for appellants.
Jose H. Vivas, with whom Vivas & Vivas was on brief, for appellee Dr. Ricardo Cedeño-Rivera.
Benjamin Morales Del Valle, with whom Morales Morales Law Offices was on brief, for appellee Dr. María de Los Ángeles Rodríguez-Maldonado.
Jeannette Lopez de Victoria, with whom Oliveras & Ortiz, P.S.C. was on brief, for appellee Dr. Juan R. Jiménez-Barbosa.
Carlos G. Martínez-Vivas, with whom Martinez-Texidor & Martínez-Vivas was on brief, for appellee Hospital San Antonio, Inc.
Nidia I. Teissonniere for appellee SIMED 1, 3 & 4.
August 25, 2022
* Judge Torruella heard argument in these appeals, but he did not participate in the decision. See
Following discovery, the physicians moved for summary judgment, arguing that they were absolutely immune from liability for negligence under the 2013 amendments to Article 41.050 of the Puerto Rico Insurance Code. Law No. 150-2013 (amending
After the district court‘s ruling, another district court in the District of Puerto Rico analyzed the application of Law 150 to HSA and medical professionals working at San Antonio Hospital. Oquendo-Lorenzo v. Hospital San Antonio, Inc., 256 F. Supp. 3d 103 (D.P.R. 2017). Unlike the district court in Kenyon‘s case, however, the district court in Oquendo-Lorenzo concluded that HSA was not entitled to a cap on damages, and that the doctor in Oquendo-Lorenzo was not entitled to absolute immunity. Kenyon subsequently moved for reconsideration in light of the Oquendo-Lorenzo decision. The district court denied that motion.
Kenyon appealed both decisions and the appeals have been consolidated. We affirm.
I. Factual Background
The facts underlying the present suit are largely undisputed. In early 2010, C.A.K. began experiencing symptoms of vasculitis, and her parents sought treatment for her condition from her primary care physician. In the early hours of August 14, 2010, C.A.K.‘s symptoms became severe, so her mother took her to the emergency room at San Antonio Hospital, where she was evaluated by Dr. Cedeño-Rivera, a licensed physician who worked in the ER. Dr. Cedeño ordered several tests and made a provisional diagnosis of gastroenteritis and dehydration. However, his shift ended before the test results were available, and care of C.A.K. transferred to Dr. Rodríguez-Maldonado, another ER doctor.
The tests showed some evidence of acute kidney failure, but Dr. Rodríguez nevertheless discharged C.A.K. at 6:00 P.M. on August 15, 2010. C.A.K.‘s condition continued to deteriorate, and she was taken to various other physicians over the next three weeks. Finally, on September 8, 2010, C.A.K. was diagnosed with renal failure and was taken to the ER at San Antonio Hospital to be stabilized. While there, she was diagnosed with acute renal failure and anemia and ordered to be transferred to University Pediatric Hospital in San Juan. However, C.A.K. was not transferred until 2:15 P.M. the next day. During this time, both Dr. Rodríguez and
C.A.K. remained at University Pediatric Hospital until November 2, 2010. By the time she was discharged, she had lost 99% of the function in her kidneys and required daily dialysis. She eventually received a kidney transplant in 2014.
Kenyon initially sued HSA and the physicians in the U.S. District Court for the District of Puerto Rico on September 7, 2011, asserting a claim under the Emergency Medical Treatment and Active Labor Act (“EMTALA“), and also state-law claims. The suit was dismissed on June 28, 2013, after the district court dismissed all federal EMTALA claims with prejudice and declined to exercise supplemental jurisdiction over Kenyon‘s medical malpractice claims, dismissing them without prejudice.
On June 27, 2014, after the family had moved to New Jersey, Kenyon refiled the suit for medical malpractice under the district court‘s diversity jurisdiction. Following discovery, the physicians, SIMED, and HSA moved for summary judgment. The physicians argued that they were immune from suit due to Article 41.050. HSA also sought summary judgment with respect to the question of whether it was entitled to a limitation on liability for the claims against it.
On March 30, 2017, the district court granted defendants’ motions for partial summary judgment. It held that the physicians were immune from suit under the 2013 version of Article 41.050 and, by extension, that SIMED could not be required to compensate Kenyon for damages resulting from that alleged misconduct. See Colon v. Ramirez, 913 F. Supp. 112, 119 (D.P.R. 1996) (“[T]he immunity afforded state doctors is not a personal defense but rather the ‘inexistence of a cause of action’ and . . . where no cause of action lies against the insured, the insurer is not liable.” (citing Lind Rodríguez v. Commonwealth of Puerto Rico, 12 P.R. Offic. Trans. 85 (1928))). The court also held that HSA‘s liability “for all damages alleged by all parties and by all causes of action[] in the complaint” was capped at $150,000. However, it found that there was a genuine issue of material fact with respect to HSA‘s liability, and allowed that portion of the suit to proceed.2
After this appeal was filed, Kenyon sought reconsideration in the district court, arguing that Oquendo-Lorenzo represented a change in controlling law. The district court disagreed, and Kenyon appealed
The two appeals were consolidated before us.
II. The Statutory Scheme
Because this case rests on the proper interpretation of
As of 2010, when C.A.K. was treated at San Antonio Hospital, Article 41.050 had last been amended in 2006. This version immunized all “health services professional[s]” who worked as “employee[s]” of the Commonwealth of Puerto Rico, “its dependencies and instrumentalities,” the Comprehensive Cancer Center of the University of Puerto Rico, “and the municipalities or contractor[s] thereof” from suits for damages “because of culpability or negligence arising from malpractice incurred . . . while acting in compliance of his/her duties and functions.” Law No. 260-2006 (amending
The statute was amended on June 27, 2011, a few months before Kenyon first filed suit in federal district court, specifically to protect the employees of certain medical providers, namely Mayagüez Medical Center. See Law 103-2011 (amending
The statute was again amended on September 29, 2012, while Kenyon‘s initial suit was ongoing. This version of the statute granted immunity to healthcare professionals operating in the “neonatal and pediatric intensive care units, operating, emergency, and trauma rooms of the San Antonio Hospital of Mayagüez.” It also noted that for the “internists and pediatricians of the neonatal intensive care units, and the obstetrician gynecologists and surgeons of the San Antonio Hospital,” the liability caps in Section 3077 would apply. Law 278-2012 (amending
On December 10, 2013, a few months after Kenyon‘s initial suit had been dismissed but before the present suit was filed, Article 41.050 was amended yet again. See Law 150. Law 150 did not significantly change the language granting immunity and limits on liability to medical professionals. However, Law 150 did include a retroactivity provision, which stated that the Act:
shall start to govern immediately after its approval, and shall have retroactive effect over any cause of action in any legal proceeding that has been constituted or filed before any competent court or adjudicative forum since June 27, 2011 on forward and that has not been adjudicated or settled, in a final and binding manner, by a court or competent forum, or over any fact occurred on
or after June 27, 2011 over which no final and binding judgment has been issued.
This version of the statute was in place when Kenyon filed the present suit against HSA and the physicians. The district court applied this version of Article 41.050 when it granted summary judgment to the physicians and SIMED.
In August of 2017, after the district court had granted summary judgment for the physicians and SIMED, the Puerto Rico legislature again amended Article 41.050. Law No. 99-2017 (amending
III. The Statutory Interpretation Question
The focus of Kenyon‘s appeal is his contention that the district court improperly read Law 150, by virtue of its retroactivity provision, to immunize the physicians for conduct that occurred before the physicians of San Antonio Hospital were explicitly included in the scope of Article 41.050. The language of Law 150, Kenyon argues, is ambiguous and therefore should be read narrowly to allow the suit to proceed to trial.
A. Law 150
Kenyon focuses on Law 150 -- that is, the 2013 amendments to Article 41.050 -- which is the same version of the statute the district court applied. We agree that Law 150 applied to the present case based on the text of its retroactivity provision.5 Because the proper interpretation of the statute is a
question of law decided by the district court at summary judgment, our review is de novo. Hannon v. City of Newton, 744 F.3d 759, 765 (1st Cir. 2014). In evaluating Kenyon‘s arguments, we are mindful of our obligation to faithfully apply the substantive law of Puerto Rico and take our cues from the Puerto Rico Supreme Court with respect to the proper method of statutory interpretation. See Quality Cleaning Products R.C., Inc. v. SCA Tissue N. Am., LLC, 794 F.3d 200, 207 (1st Cir. 2015) (“A federal court sitting in diversity cannot be expected to create new doctrines expanding state law.” (quoting Gill v. Gulfstream Park Racing Ass‘n, 399 F.3d 391, 402 (1st Cir. 2005))).
Here, Kenyon argues that the text of the 2013 amendments to Article 41.050 are ambiguous with respect to the scope of their retroactivity. The amendments, Kenyon suggests, can be read to apply only to those hospitals and organizations that were protected by Article 41.050 before the 2011 amendments were passed. Alternatively, per Kenyon, they can be read to apply only to conduct that occurred after June 27, 2011.
Such readings are contradicted by the text of the retroactivity clause. The retroactivity clause in the 2013 amendments explains that they will apply to: “any cause of action in any legal proceeding that has been
constituted or filed . . . since June 27, 2011 on forward and that has not been adjudicated or settled, in a final and binding manner . . .” Law 150 (emphasis added). By its terms, the retroactivity clause does not apply only to conduct that occurred after June 27, 2011; nor does it draw any distinction between institutions that were protected by Article 41.050 before 2011 and after 2011. While the retroactivity clause is unclear as to some points, it is clear on the relevant issues. Kenyon‘s claims were filed after June 27, 2011, so the clause plainly applies.
Because the text of the statute is clear on that point, our analysis ends there, and we need not look elsewhere. See
B. Immunity
Given that Law 150‘s retroactivity provision plainly applies to the present case, we are obligated to apply it, as the district court did below. And, under that law, the physicians are immune from Kenyon‘s malpractice claim. Specifically, when the injury occurred, the physicians were all working as ER doctors. Thus, under Law 150, they may not be “included as defendants in a civil action” for “professional malpractice” or “negligence” because they are “healthcare professional[s]” who were “act[ing] in the compliance with [their] duties and functions” “in
the . . . emergency rooms” of the “San Antonio Hospital of Mayagüez.”
Consequently, we read the 2013 amendments to Article 41.050 as immunizing the physicians from this suit, and therefore, as foreclosing the present action.
IV. Constitutional and Puerto Rico Civil Code Issues
Kenyon further contends that retroactive application of Article 41.050 (1) violates
meaningfully change the text of the retroactivity clause. If the 2017 amendments infringe on Kenyon‘s right to due process, then it follows that the 2013 amendments, which we have applied in this case, would do so as well.
A. Procedural Barriers to Review
We first consider whether we may reach the merits of Kenyon‘s due process arguments as to the 2013 amendments.
that notice was untimely.8
The issue is thus whether it is appropriate for us to analyze the constitutionality of retroactive application of Article 41.050 under the 2013 amendments, where Rule 5.1 notice was provided as to the 2017 amendments (even if it was untimely, as HSA contends), but not the 2013 amendments. Rule 5.1 makes clear that any alleged “failure to serve the notice . . . does not forfeit a constitutional claim or defense that is otherwise timely asserted.”
pending appeal instead). Here, as noted, the issues are the same as to the constitutionality of the retroactivity clause whether considering the 2013 or 2017 amendments, because the 2017 amendments did not meaningfully change the retroactivity clause. Thus, we
More concerning for our purposes is HSA‘s contention that Kenyon waived his argument that the retroactivity clause of Article 41.050 violated the federal Constitution because he failed to properly raise it before the district court. Though Kenyon argued that the 2013 amendments were invalid under the Commonwealth Constitution in his opposition to summary judgment, he did not present the federal constitutional question at the summary judgment stage. Instead, Kenyon first challenged the 2017 amendments under the federal Constitution in his opposition to HSA‘s motion to take judicial notice of the 2017 amendments, which was filed in response to Kenyon‘s request for reconsideration. However, the federal constitutional claim was certainly available to Kenyon at the summary judgment stage and should have been presented at that juncture. We therefore agree that Kenyon‘s federal constitutional arguments are waived, and we need not determine their merits.
Nevertheless, Kenyon preserved his contentions as to the Due Process Clause of the Commonwealth Constitution. And the
Puerto Rico cases that the parties cite suggest that the Puerto Rico Supreme Court determines issues under that clause by reference to federal standards. See Torres v. Castillo, 11 P.R. Offic. Trans. 1001, 1012-13 (1981); Alicea v. Cordova, 17 P.R. Offic. Trans. 811, 831-32 (1986); Defendini Collazo v. E.L.A., Cotto, 134 P.R. Dec. 28 (1993). In addition, Kenyon appears to contend that our due process analysis should be essentially the same under the U.S. and Commonwealth Constitutions, without noting specific differences. Therefore, as part of our analysis of his preserved claim, it is necessary to review caselaw interpreting the federal Due Process Clause. We emphasize, however, that we do so not to determine the merits of his claim under the U.S. Constitution -- which, again, he has waived -- but only because such standards are relevant to his contentions under the equivalent clause of the Commonwealth Constitution.9
B. Commonwealth Due Process Claim
The United States and Commonwealth Constitutions both guarantee, in relevant part, that an individual will not be deprived of liberty or property without due process of law.
The federal Constitution‘s guarantee of substantive due process protects individuals against state action that transgresses “basic and fundamental principle[s].” Amsden v. Moran, 904 F.2d at 754; see also Pagan, 448 F.3d at 32. Thus, generally speaking, under the federal Due Process Clause, a state action will be reviewed for strict scrutiny only where it interferes with a fundamental right; otherwise, it is reviewed under the more lenient rational basis standard. Medeiros v. Vincent, 431 F.3d 25, 32 (1st Cir. 2005), abrogated on other grounds, Bond v. United States, 564 U.S. 211 (2011). The Supreme Court of Puerto Rico takes a similar approach in reviewing substantive due process claims under the Commonwealth Constitution. For example, that court has stated that something more than the rational basis test will apply if a facially valid law “[is] detrimental to and violate[s] the fundamental rights of the individual.” See Torres, 11 P.R. Offic. Trans. at 1012-13. And the court has also made clear that “the Legislature has ample authority to set economic regulations that promote the general welfare,” and has reviewed such regulations under the rational basis test. Defendini Collazo, 134 P.R. Dec. 28 (noting that a statute would not violate substantive due process under the Commonwealth‘s Constitution “provided it has a real and substantial relation to the State interest pursued and is not unreasonable, arbitrary or capricious” (citing Nebbia v. New York, 291 U.S. 502, 525 (1934)))).
Here, Kenyon contends that retroactive application of
In the federal context, there is caselaw indicating that retroactive laws that overturn vested property rights are subject to “special scrutiny.” See Adams Nursing Home of Williamstown, Inc. v. Matthews, 548 F.2d 1077, 1080 (1st Cir. 1977) (canvassing cases finding retrospective acts invalid because they overturned “vested property rights” and noting that “laws that unsettle settled rights can be harsh, and [] deserve [] special scrutiny”
Kenyon also contends that retroactive application of
Thus, under the federal Due Process Clause -- which the Puerto Rico cases cited by the parties suggest is similar to the Commonwealth‘s Due Process Clause, and which Kenyon contends is “much” the “same” as that clause -- retroactive application of a statute to foreclose an ongoing tort action in the absence of a final, unreviewable judgment does not implicate a vested property right or a fundamental right.
Although the parties have not identified any Puerto Rico Supreme Court cases analyzing under the Commonwealth‘s Due Process Clause the specific issue raised by this case, the cases of that court that they cite suggest that Commonwealth and federal standards on these issues are consistent. Specifically, in Defendini, the Puerto Rico Supreme Court found that a law that establishes a ceiling on the Commonwealth‘s damages in actions for negligence does not violate the Commonwealth‘s Due Process Clause. 134 P.R. Dec. 28. The retroactive application of that law was not at issue, and the point at which a cause of action “vests” was not discussed. See id. But the court nevertheless reasoned that the right to bring an action for damages was a “proprietary right,” and thus, the “only” question was whether “the limits [imposed by the law] [were] clearly arbitrary.” Id.
The court also clarified that Puerto Rico had “not recognized a fundamental right to bring a civil action,” and expressly rejected a contention, which Kenyon also makes here, that Alicea and Torres hold otherwise. Defendini Collazo, 134 P.R. Dec. 28 (emphasis added) (noting that Alicea‘s “pronouncements” that “the right to commence a civil action is a fundamental right” that will have to withstand “strict judicial scrutiny” did “not constitute the opinion of the Court” (quoting Alicea, 17 P.R. Offic. Trans. at 826)); Defendini Collazo, 134 P.R. Dec. 28 (”Torres does not recognize the existence of a fundamental right to file a civil suit.“); see also In re San Juan Dupont Plaza Hotel Fire Litig., 687 F. Supp. 716, 733-34 (D.P.R. 1988) (“In Puerto Rico, the right
Kenyon analogizes his situation to that of the plaintiffs in Alicea. There, the Puerto Rico Supreme Court held that a strict, two-year statute of limitations for actions for medical malpractice, including those involving latent injuries, was unconstitutional under the Commonwealth‘s Due Process Clause because the provision at issue could “have the effect of requiring the plaintiffs to comply with the impossible: to sue before they know about their cause of action.” Alicea, 17 P.R. Offic. Trans. at 833.12 The statute of limitations in Alicea did not simply dictate the timeline by which a plaintiff may sue but “operate[d] immediately to eliminate the existing remedy or within a term so short that the aggrieved party ha[d] no reasonable opportunity to exercise the action.” Id. at 832. Here, by contrast, Kenyon had a reasonable opportunity to sue before June 27, 2011, because C.A.K.‘s treatment took place between August 14, 2010, and November 2, 2010; therefore, Alicea is inapposite to the facts of this case.
Thus, in summary, Kenyon has not pointed to any case under Puerto Rico law establishing that a fundamental right or vested property right is implicated here. Instead, the relevant Puerto Rico and federal law, to which the Puerto Rico Supreme Court has looked for guidance in interpreting the Commonwealth‘s Due Process Clause, suggest that no such rights are implicated.13 Accordingly, retroactive application of the law to Kenyon‘s case is subject only to rational basis review, and will be upheld unless it is “wholly arbitrary and irrational in purpose and effect.” Hammond, 786 F.2d at 13; see also Defendini Collazo, 134 P.R. Dec. 28.
The statute here is neither arbitrary nor irrational. Both the Puerto Rico Supreme Court and the United States Supreme Court have acknowledged that a state has a rational interest in protecting the public coffers and ensuring that hospitals are able to continue serving vulnerable populations. See, e.g., Defendini Collazo, 134 P.R. Dec. 28 (concluding that there is a legitimate interest in protecting the Commonwealth‘s coffers). Kenyon has not shown that the retroactive grant of immunity is so unrelated to the legislature‘s goal of protecting the healthcare system and ensuring continued access to medical care as to be arbitrary and irrational. See
Accordingly, for all of those reasons, we conclude that
C. The Puerto Rico Civil Code
Kenyon also urges us to conclude that retroactive application of
In support of this theory, Kenyon cites only one case: Vélez Reboyras v. Srio. de Justicia, 15 P.R. Offic. Trans. 700 (1984). But this case explains that there is in fact no “absolute” “principle” of “non-retroactivity.” Id. at 712; see also Domínguez Castro v. E.L.A., 178 P.R. Dec. 1 (2010). Instead, it stresses that the Puerto Rico Supreme Court will look to “‘the substantiality of the public interest promoted by the statute and the dimension of the impairment caused by its retroactive application’ and that ‘[t]he greater the social evil sought to be remedied by the statute, the greater the public interest involved, and, therefore, the more justification for its retroactive application.‘” Vélez Reboyras, 15 P.R. Offic. Trans. at 712 (quoting Warner Lambert Co. v. Tribunal Superior, 101 P.R. Dec. 378 (1973)).
Kenyon, in turn, argues that “[n]o public interest . . . could . . . be earnestly advocated, with respect to granting this benefit retroactively.” But as we discussed above, there is a rational interest in protecting the public coffers, which in turn enables the continued operation of hospitals. See Defendini Collazo, 134 P.R. Dec. 28.
Vélez Reboyras does suggest that there is a backstop to flexible application of the non-retroactivity principle: retroactivity cannot extinguish acquired (i.e., vested) rights. 15 P.R. Offic. Trans. at 712; Torres v. Winship, 1940 P.R. Sup. LEXIS 415 (1940).
But Kenyon gives us no argument at all as to why his cause of action would be considered acquired or vested for the purposes of section 3 of the Puerto Rico Civil Code. Instead, Puerto Rico caselaw suggests that retroactive application of
Conversely, mere expectations do not create an acquired right, and an “acquired right cannot be the set of powers that the previous law allowed citizens to exercise.” Consejo Titulares, 168 P.R. Dec. at 108-09. Thus, “not every legal situation that arises under a previous law represents a proprietary interest that gives way to the recognition of an acquired right.” Pérez López, 194 P.R. Dec. at 324. And “not every proprietary right or interest is in turn an acquired right” for the
This caselaw, as well as the law discussed in previous sections, suggests that retroactive application of
Consequently, the decisions of the Puerto Rico Supreme Court indicate that retroactive application of
V. Motion to Reconsider
Finally, while this appeal was pending, Kenyon sought reconsideration14 in the district court in light of a district court‘s decision in Oquendo-Lorenzo, 256 F. Supp. 3d 103 (D.P.R. 2017). Specifically, Kenyon gestured to the district court in Oquendo-Lorenzo‘s holding as to HSA‘s liability and physician liability, arguing this decision represented an “intervening change in the law.”
In Oquendo-Lorenzo, the district court addressed a surgeon specializing in obstetrics-gynecology (Dr. Quiles), who had admitting privileges at San Antonio Hospital. Oquendo-Lorenzo, 256 F. Supp. 3d at 117. The district court explained that applying
Though Kenyon‘s motion to reconsider was filed after the notice of appeal, the district court had jurisdiction to consider it. See Puerto Rico v. SS Zoe Colocotroni, 601 F.3d 39, 41 (1st Cir. 1979). Our review of the district court‘s denial of reconsideration is for abuse of discretion. Daniels v. Agin, 736 F.3d 70, 86 (1st Cir. 2013) (“We review the denial of a
The district court correctly concluded that Oquendo-Lorenzo was not an “intervening change in the law.” As the district court noted, and Kenyon acknowledges, the Oquendo-Lorenzo district court decision carried only “persuasive,” not precedential, weight. Thus, there was no intervening change in the law. Given this was the only argument Kenyon raised to support his motion for reconsideration, the district court was entitled to reject this motion.
Even putting that to one side, the district court holding in Oquendo-Lorenzo is not on point to the facts in this case. Unlike the physicians here, the physician-defendant in Oquendo-Lorenzo was a surgeon who specialized in obstetrics-gynecology. Consequently, the district court‘s conclusion that the defendant-physician was not entitled to immunity in Oquendo-Lorenzo was based on a portion of the text of
Consequently, we will affirm the district court‘s denial of the motion for reconsideration.
VI. Conclusion
For the foregoing reasons, we affirm the district court‘s judgment and order denying the motion to reconsider.