No Surprise Summary Judgment: First Circuit Clarifies Rule 12(d) Conversion, Rule 56(c)(4) Affidavits, and Medical Director Liability under Puerto Rico Article 1802

Introduction

This appeal arises from the death of a 68-year-old patient, Carmelo Calderón-Marrero, who presented to Doctors’ Center Hospital’s emergency room in Bayamón, Puerto Rico, in January 2016 with abdominal pain. After a protracted delay in obtaining a CT scan, he underwent surgery for a perforated intestine and died nearly a month later. His son, Yemal Calderón-Amézquita (a Florida emergency physician), sued a roster of physicians and entities connected to the emergency department, alleging medical malpractice and related torts under Puerto Rico’s Civil Code (Article 1802/1803). The case largely turned on threshold issues rather than the merits: statute-of-limitations defenses, tolling doctrines, the federal standards for converting motions to dismiss to summary judgment, evidentiary handling of declarations at the Rule 56 stage, and whether Puerto Rico tort law can impose liability on a physician who never directly treated the patient but served as the ER’s medical director.

The district court granted summary judgment to five defendants for an array of reasons. On appeal, the First Circuit addressed, in a highly instructive opinion, the interaction between federal procedural rules and Puerto Rico’s substantive limitations law, the evidentiary standards governing summary judgment submissions, and the scope of Article 1802 liability for non-treating physicians in supervisory roles. It vacated in part and remanded, while affirming in part.

Summary of the Opinion

The First Circuit delivered a mixed outcome, defendant by defendant:

• Dr. Andrés Ávila and Dr. Ángel Torres (ED physicians): The court vacated summary judgment. The district court abused its discretion by sua sponte converting Rule 12(b)(6) motions to dismiss into Rule 56 motions without adequate notice and then granting summary judgment on an unbriefed ground (receipt of extrajudicial tolling notices). Lack of notice prejudiced the plaintiff, who was never prompted to submit evidence of his tolling letters before judgment.
• Grupo de Emergencias VRC CSP (the ER operator corporation): The court affirmed summary judgment as time-barred. Plaintiff’s “equitable tolling” argument was inadequately developed and thus waived; his evidence of the accrual date was internally contradictory; and he failed to prove tolling for VRC or to argue “perfect solidarity” to carry tolling from another defendant to VRC.
• Dr. Carlo Hernández (ED physician on overlapping shift): The court vacated summary judgment. The district court misapplied Rule 56(c)(4) by disregarding an unsworn declaration for failure to attach a referenced document—an attachment requirement removed by the 2010 amendments. On the merits, a jury could reasonably find the limitations period did not accrue until plaintiff learned Hernández’s identity in 2018 because his name did not appear in the medical records and he never treated the patient.
• Dr. Víctor Rivera (ER medical director and sole owner/director of VRC):
  • As ER medical director: The court vacated summary judgment. It held that Article 1802 liability can attach to a physician who did not directly treat the patient if a legal duty to act exists (e.g., to supervise or intervene) and is breached by omission causing harm. The district court erred in treating direct treatment as a prerequisite to tort liability.
  • As VRC’s corporate director: The court affirmed dismissal. The underlying claim against VRC is time-barred; and in any event plaintiff voluntarily withdrew his separate “director’s liability” cause of action below and cannot revive it on appeal.

Analysis

Precedents Cited and Their Role

• Statute of limitations and accrual/tolling (Puerto Rico law):
  • Hamdallah v. CPC Carolina PR, LLC (1st Cir. 2024): Distinguishes actual from deemed knowledge; clarifies burden-shifting when suit is filed after one year; discusses “perfect solidarity.”
  • Tokyo Marine & Fire Ins. Co. v. Pérez & Cía. (1st Cir. 1998): Explains tolling by suit, extrajudicial claim, or debtor’s acknowledgment; plaintiff’s burden to show interruption after a late filing.
  • Montalvo v. González-Amparo (1st Cir. 2009): Wrongful death accrual at the time of death, not at the survivor’s earlier personal awareness.
  • Rivera-Carrasquillo v. Centro Ecuestre Madrigal (1st Cir. 2016): One-year limitations period and burden-shifting to plaintiff once more than a year has passed.
  • Rodriguez-Suris v. Montesinos (1st Cir. 1997); Espada v. Lugo (1st Cir. 2002); Velázquez v. Schindler (D.P.R. 2013): Knowledge of the tortfeasor’s identity may be discovered later; when identity is not available in medical records or interactions, accrual may be delayed.
  • Vistamar, Inc. v. Fagundo-Fagundo (1st Cir. 2005); In re FOMB for P.R. (1st Cir. 2022); Benítez-Pons v. Puerto Rico (1st Cir. 1998): Equitable tolling is extraordinary; often requires active concealment and is narrowly applied.
• Rule 12(d) conversion and notice:
  • Ríos-Campbell v. U.S. Dep’t of Commerce (1st Cir. 2019); Rubert-Torres v. Hosp. San Pablo (1st Cir. 2000); Collier v. City of Chicopee (1st Cir. 1998); Boateng v. InterAmerican Univ. (1st Cir. 2000); Chaparro-Febus (1st Cir. 1992); Clorox Co. P.R. v. Proctor & Gamble (1st Cir. 2000): Conversion is within discretion but disfavored without adequate notice and opportunity to present Rule 56 materials; lack of surprise and fairness are touchstones.
  • Oahn Nguyen Chung v. StudentCity.com (1st Cir. 2017); Rogan v. Menino (1st Cir. 1999): Sua sponte summary judgment requires notice that the specific issue is in play and a chance to respond.
• Rule 56 summary judgment evidence:
  • Fed. R. Civ. P. 56(c)(4) and 2010 Advisory Committee Notes: An unsworn declaration under penalty of perjury may be used; after 2010, there is no requirement to attach sworn or certified copies of referenced documents.
  • Rodríguez-Severino v. UTC Aerospace (1st Cir. 2022): Unsworn declarations suffice under 28 U.S.C. § 1746.
  • Doucette v. Jacobs (1st Cir. 2024); Maiorana v. MacDonald (1st Cir. 1979): Courts retain discretion to disregard clearly defective evidence even sua sponte.
  • Davis v. Sears, Roebuck (1st Cir. 1983): Considering unobjected-to affidavits is discretionary, not mandatory.
  • Escribano-Reyes (1st Cir. 2016); Peña v. Honeywell (1st Cir. 2019): “Sham affidavit” doctrine—contradictory post-deposition declarations cannot create genuine disputes absent satisfactory explanation.
  • Alston v. Town of Brookline (1st Cir. 2021): Appellate review may proceed on an evidentiary record corrected for erroneous exclusions.
• Puerto Rico medical malpractice and duty to act:
  • Pagés-Ramírez v. Ramírez-González (1st Cir. 2010): Elements of Puerto Rico medical malpractice; physician’s duty defined by professional standards.
  • De-Jesus-Adorno v. Browning Ferris (1st Cir. 1998): Omissions are actionable where a legal duty to act exists.
  • Rolón-Alvarado v. Municipalidad de San Juan (1st Cir. 1993) (citing Thomas v. Corso, Md. Ct. App. 1972): Failure to attend a patient can be negligence even without specialized proof.

Legal Reasoning

1) Rule 12(d) Conversion: Adequate Notice and Fairness Required

Two physicians (Ávila and Torres) moved under Rule 12(b)(6) on a pure pleading argument: plaintiff, as a doctor, had sufficient knowledge early on, so the one-year limitations period expired before he sued. The district court rejected their accrual theory (applying wrongful-death accrual at time of death), but then sua sponte converted those motions into Rule 56 motions and granted summary judgment on a different ground: lack of proof that the doctors received extrajudicial tolling notices.

The First Circuit held that conversion was an abuse of discretion because:

• There was no express notice of conversion. Constructive notice could not be inferred merely from the status of discovery or from the movants’ attachments of selected deposition excerpts. The nonmovant (plaintiff) did not submit extra-pleading materials in opposition, and the district court decided the case on a new, unbriefed issue (receipt of extrajudicial claims) that the attachments did not put in play.
• Rule 12(d) requires that “all parties be given a reasonable opportunity” to present pertinent materials. The lack of notice was prejudicial: plaintiff promptly produced the tolling letters one day after judgment in a motion for reconsideration, showing he could have met the issue if fairly flagged.

Bottom line: discovery’s completion does not automatically signal conversion; courts must not spring Rule 56 on a party to decide a different theory not briefed, without a fair chance to submit evidence.

2) Rule 56(c)(4) Declarations: No Attachment Requirement After 2010; But Sham Contradictions Can Be Disregarded

The evidentiary rulings split into two distinct holdings:

• Against VRC: The district court disregarded plaintiff’s unsworn declaration stating he learned of VRC on April 25, 2018 because it contradicted his earlier deposition testimony (that he learned when “this whole legal process” began, which he confirmed meant the complaint). The First Circuit upheld exclusion under the sham affidavit rule; contradictory testimony without a satisfactory explanation cannot conjure a genuine dispute. It also rejected the argument that a court may never act sua sponte to disregard unobjected evidence—trial courts have discretion to police obviously defective submissions.
• Against Dr. Hernández: The district court disregarded a substantively identical declaration for a procedural reason—plaintiff did not attach the referenced interrogatory answer. That was legal error. The 2010 amendments to Rule 56 eliminated any requirement to attach sworn/certified copies of referenced papers. A declaration based on personal knowledge is itself record material; attaching the referenced document is not a condition of admissibility. On this corrected record, a jury could find the claim accrued only when plaintiff learned Hernández’s identity in 2018, especially since Hernández never treated the patient and was not named in the medical records.

3) Puerto Rico Prescription: Accrual, Tolling, Equitable Tolling, and “Perfect Solidarity”

Reaffirming Puerto Rico limitations law, the court emphasized:

• One-year period (substantive), running when the plaintiff has knowledge of both injury and the likely tortfeasor. Knowledge can be actual or deemed (what reasonable diligence would have uncovered).
• If suit is filed after one year, the plaintiff bears the burden to show lack of requisite knowledge or an interruption (tolling) through suit, extrajudicial claim, or acknowledgment.
• Equitable tolling is extraordinary. Plaintiff’s cursory presentation—letters to others and bare accusations of concealment—was insufficient and deemed waived for lack of developed argument.
• Perfect solidarity is an exception: tolling against one defendant carries to others only if they are in perfect solidarity (e.g., certain vicarious liability relationships). The burden rests on the plaintiff to plead and support perfect solidarity. Plaintiff did not argue or develop this, so it could not rescue his claim against VRC.

4) Article 1802 Liability Without Direct Treatment: Supervisory/Omission Liability Is Cognizable

The district court dismissed the “medical director” claim against Dr. Rivera on the theory that Puerto Rico tort law requires direct medical treatment for physician liability. The First Circuit corrected that legal premise. Article 1802 broadly imposes liability for damage caused “by act or omission through fault or negligence.” In medical malpractice, an omission is actionable where a legal duty to act exists. A physician’s duty encompasses providing care, attention, skill, and protection consistent with professional standards. Where a medical director has a legally cognizable duty to supervise, to ensure appropriate systems, or to intervene to protect a patient, negligent nonperformance of that duty can support Article 1802 liability even absent direct bedside care.

Having clarified the legal standard, the First Circuit remanded for the district court to evaluate whether the record (including expert proof) shows that Dr. Rivera, as ER medical director, owed and breached such a duty and caused harm. Separately, the court affirmed dismissal of claims against Dr. Rivera in his capacity as VRC’s director: the VRC claim was time-barred and, independently, plaintiff withdrew his “director’s liability” cause of action below and cannot revive it on appeal.

Impact

• Federal civil practice in the First Circuit:
  • District courts are cautioned against sua sponte Rule 12-to-Rule 56 conversions without clear notice, especially when deciding on a different ground than briefed. Discovery status and movant-added exhibits do not alone provide adequate notice; the nonmovant must have a fair chance to submit targeted Rule 56 materials.
  • At summary judgment, unsworn declarations under penalty of perjury are valid; Rule 56(c)(4) does not compel attaching referenced documents. But litigants must avoid contradictions with prior sworn testimony or provide satisfactory explanations—sham affidavits will be disregarded.
• Puerto Rico tort litigation (medical context):
  • Article 1802 liability may reach medical directors and supervisory physicians for actionable omissions where a legal duty to act exists. Hospitals and ER operator groups should anticipate litigation focused on supervisory and intervention duties, protocols, and response systems.
  • Statute-of-limitations defenses remain potent. Plaintiffs must:
    • Track and prove the accrual date (actual vs deemed knowledge of the likely tortfeasor);
    • Serve and preserve extrajudicial claim letters to each entity and actor, where solidarity is not perfect;
    • Develop any equitable tolling theory with specificity; and
    • Plead and support perfect solidarity if tolling against one is to carry to others.

Complex Concepts Simplified

• Rule 12(d) conversion: If a court considers materials outside the complaint on a motion to dismiss, it may convert to summary judgment. But it must give the parties a heads-up and a fair chance to submit evidence tailored to the specific issue the court will decide.
• Unsworn declaration (Rule 56(c)(4)): A statement signed under penalty of perjury (28 U.S.C. § 1746) can replace an affidavit at summary judgment. After 2010, you do not have to attach every document you reference in the declaration.
• Sham affidavit doctrine: You cannot defeat summary judgment by filing a declaration that contradicts your prior clear deposition testimony—unless you satisfactorily explain the inconsistency.
• Extrajudicial claim (Puerto Rico): A pre-suit letter to a putative tortfeasor that identifies the claim and demands relief; it interrupts (restarts) the one-year limitations period. You generally must send it to each tortfeasor unless perfect solidarity applies.
• Perfect vs. imperfect solidarity: In imperfect solidarity, tolling is defendant-specific. In perfect solidarity (narrowly recognized relationships such as some employer-employee or hospital-physician vicarious liability contexts), tolling as to one carries to others—but the plaintiff bears the burden to plead and establish that relationship.
• Accrual (knowledge): The one-year clock starts when the plaintiff knows (or reasonably should know) of the injury and the likely tortfeasor, not merely that something went wrong. Identity can be discovered later, especially if not in the chart or the plaintiff had no interaction with the actor.
• Article 1802 omissions liability: Puerto Rico’s general tort statute reaches omissions as well as acts. In the medical context, if a physician or medical director has a legal duty to act (supervise, intervene, ensure competent systems) and unreasonably fails to do so, causing harm, liability may attach even without direct hands-on care.

Practice Pointers

• When moving under Rule 12(b)(6): If you want the court to consider evidence, ask for Rule 56 and put the issue squarely in play. If you stick with Rule 12, expect the court to confine itself to the pleadings—conversion without notice is reversible.
• When opposing Rule 12(b)(6): If you submit evidence, you may trigger conversion; be deliberate. If the court signals conversion, promptly submit all materials “pertinent to the motion,” including tolling letters, receipts, and sworn statements.
• Summary judgment submissions:
  • Use § 1746 declarations where helpful; ensure they are based on personal knowledge and consistent with prior testimony.
  • Explain any apparent inconsistencies; do not rely on ambiguous phrasing you cannot reconcile.
  • Cite Rule 56(c)(4) and the 2010 Advisory Notes if an opponent insists on obsolete attachment requirements.
• Puerto Rico limitations strategy:
  • Calendar the one-year period from accrual; assess actual vs deemed knowledge carefully, especially regarding identity of actors not named in records.
  • Serve extrajudicial claims on each likely tortfeasor; keep proof of mailing and receipt.
  • If relying on solidarity to carry tolling, plead and prove “perfect solidarity.”
  • Equitable tolling is rare—develop facts of concealment or obstacles beyond your control, and brief the doctrine distinctly (federal vs Puerto Rico).
• Substantive duty theories: In suits against ER operators and medical directors, articulate the source of duty (statute, regulation, contract, customary relationship, professional standard) and the specific omission (supervisory failure, protocol lapses, failure to intervene) with expert linkage to causation.

Conclusion

The First Circuit’s decision in Calderón-Amézquita v. Rivera-Cruz crystallizes three important principles:

1. No surprise conversions: District courts may not convert Rule 12(b)(6) motions to summary judgment without adequate notice and a fair opportunity to submit evidence—especially not to decide a new, unbriefed theory.
2. Modern Rule 56 practice: Unsworn declarations under § 1746 are proper summary judgment evidence; Rule 56(c)(4) does not require attaching referenced documents. At the same time, courts can and should disregard sham contradictions.
3. Supervisory omissions can be actionable: Under Puerto Rico Article 1802, a physician who never directly treated the patient—such as a medical director—may owe actionable duties to supervise or intervene; breach by omission can support liability if causation is shown.

On the merits, the court vacated and remanded as to Drs. Ávila, Torres, and Hernández, and as to Dr. Rivera in his medical director capacity, opening the door for further proceedings on accrual, tolling, and duty/causation. It affirmed dismissal of claims against VRC and against Dr. Rivera as VRC’s director (both time-barred, and the latter also voluntarily withdrawn). Going forward, litigants in Puerto Rico medical cases must attend carefully to limitations, solidary liability, and the evidence needed at Rule 56, while hospitals and ER operator groups should reassess medical director roles and protocols in light of the clarified scope of Article 1802.