All questions

Litigation

i Forum

Product liability claims can be brought in the Puerto Rico Court of First Instance or in the US District Court for the District of Puerto Rico. Plaintiffs will frequently try to file the claim in a federal court to demand a trial by jury, since Puerto Rican law does not provide for jury trials in civil cases. Mainly, plaintiffs can file a claim in a federal court either when:

  1. it is asserted in a case that raises a federal question;
  2. under the court's diversity jurisdiction, when all the plaintiffs and the defendants reside in different 'states'; and
  3. under the court's admiralty jurisdiction.

Cases filed in Puerto Rican courts that are nonetheless removable to a federal court present important judgement calls for defendants. For instance, defendants need to decide whether their preference for a federal forum outweighs the risks of a trial by jury. US and foreign defendants may want to remove cases to a federal court because the proceedings in Puerto Rican cases are mostly in Spanish. English language proceedings in a federal court facilitate these defendants' understanding of developments in their cases and their assistance in the litigation. Yet, since the federal court record must be in English, litigants will frequently need to spend money to translate relevant Spanish language decisions and commentary materials, documentary evidence and testimony.

ii Burden of proof

Plaintiffs have the burden to establish the elements of the causes of action in Puerto Rican product liability cases. The plaintiff must introduce evidence that affords a reasonable basis for the conclusion that it is 'more likely than not' that the conduct of the defendant was a substantial factor in bringing about the result. Manufacturing defect claims where the risk-utility test analysis applies are characterised by burden-shifting. Plaintiffs must 'establish a prima facie case of causation'. If the plaintiff meets its burden, the defendants must show that the 'overall utility [of the product] exceeds the overall risk'.

Generally, the defendant bears the burden of establishing the facts that would eliminate or reduce liability. However, in actions filed after the initial time-limitations period has elapsed, the plaintiff bears the burden of proving timeliness.

iii DefencesStatutes of limitation

In Puerto Rico, the statute of limitations is substantive law, not a procedural matter. A one-year limitations term applies to product liability claims under Article 1802.

The limitations term begins when the injured person has actual or constructive notice of the injury and knowledge of the identity of the tortfeasor. Article 1802 claims are subject to extrajudicial tolling by either an extrajudicial claim (usually a pre-complaint settlement demand) or an act of acknowledgment by the tortfeasor.

The law on statutes of limitation has been subject to important developments during recent years. In its 2012 decision in Fraguada Bonilla v. Hosp Aux Mutuo, the Puerto Rico Supreme Court held that commencing an action against a tortfeasor no longer tolls the statute of limitations for claims against absent joint and several tortfeasors. Expanding on Fraguada, in the 2016 decision in Maldonado Rivera v. Suárez, the Court held that a defendant cannot bring a third-party claim against a joint and several tortfeasor after the original plaintiff's claim against the third-party defendant is time-barred. The Court also clarified that in these situations the trial court must subtract the amount of damages attributable to the absent tortfeasors from the final judgment.

Claims for breach of implied warranty owing to hidden defects under Articles 1373–1375 are subject to a six-month limitations term. The term runs from the day on which the parties' efforts to solve the dispute are 'interrupted'.

Intervening cause

'Intervening causes can break the chain of causation if they are not foreseeable.' This refers to 'a cause of injury that “comes into active operation in producing the result after the actor's negligent act or omission has occurred”'.

Assumption of risk

Under Puerto Rican law, a defendant is allowed to argue that the plaintiff assumed the risks of a defective product. However, Puerto Rico has adopted the norm established in California in Daly v. General Motors Corp. Accordingly, a plaintiff's assumption of risk will not eliminate the defendant's liability, but will only allow a reduction in the damages that can be recovered.

Comparative fault or negligence

Under Article 1802, a plaintiff's fault or negligence causes a corresponding reduction of its compensatory damages. This doctrine applies to strict liability and negligence product liability claims.

Absorption of fault

Under the absorption theory, if a party is only slightly responsible for causing damage, the overwhelming negligence of another party 'absorbs' the minimal negligence of the former and the latter bears all liability.

iv Personal jurisdiction

Puerto Rico's long-arm statute extends personal jurisdiction to the full extent allowed under the US Constitution. The exercise of personal jurisdiction is guided by 'whether the exercise of personal jurisdiction . . . would abide by constitutional guidelines' of due process (i.e., the familiar test used in the United States).

While plaintiffs frequently sue parent companies together with their local subsidiaries, '[u]nder Puerto Rican law there is a presumption that a corporate entity is separate from its controlling entity.' Courts only exercise jurisdiction over a foreign parent company when there is a 'plus factor' beyond the 'subsidiary's mere presence within the bosom of the corporate family'. Plus factors include an agency relationship between the parent and the subsidiary or a finding that the subsidiary is a mere shell for the parent's operations. Mere ownership of a subsidiary is insufficient to justify asserting personal jurisdiction over the parent wherever the subsidiary is present.

v Expert witnesses

In federal litigation, courts apply the test set forth in the US Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. The First Circuit has said that Daubert requires 'that the proponent of the evidence show that the expert's conclusion has been arrived at in a scientifically sound and methodologically reliable fashion'.

The committee in charge of drafting the current version of the Puerto Rico Rules of Evidence refused to endorse the Daubert approach in favour of a more flexible approach. Instead, under Rules 702 and 703 the testimony of an expert is admissible if the witness has some scientific, technical or specialised knowledge that could help the court to understand the evidence or to adjudicate a fact in controversy.

vi Discovery

Under the Puerto Rico Rules of Civil Procedure, discovery mainly includes the same practice used in federal litigation (i.e., meetings among attorneys to propose a discovery plan, initial disclosures, written discovery, production of documents, fact and expert witnesses depositions, subpoenas to third parties to compel testimony or the production of documents, and the duty to try to resolve discovery disputes without the need to request orders from the court). Puerto Rico also recognises most of the privileges applicable in federal litigation, such as the attorney–client privilege and the work product privilege, among others.

vii Apportionment

Under Puerto Rican law, 'all those who take part in the manufacturing and distribution chain of a product are solidarily liable, along with the manufacturer, to the injured party'. Solidarity is very similar to joint and several liability. The essential feature of solidarity is that the solidary debtors are jointly responsible for the same obligation. An aggrieved party may collect the entirety of the damages from one, some, or all the joint tortfeasors. Under Article 1098 of the Civil Code, joint debtors can demand payment for the amount that exceeds their share of responsibility for the damages.

viii Mass tort actions

Puerto Rico allows class actions in a manner very similar to federal law. The filing of a class action tolls the statute of limitations for all members of the putative class even if class certification is ultimately denied. The limitations term begins to run again once certification is denied.

The judiciary has also adopted Complex Litigation Rules, allowing for the consolidation of cases, whether pending in one or more judicial regions, with the purpose of eliminating unnecessary burdens on the parties and the judiciary's resources. The criteria to evaluate whether a complex litigation case should be created includes:

  1. the number of parties involved;
  2. the number of allegations and defences;
  3. the number of potential witnesses;
  4. the volume of potential evidence;
  5. the need for expert evidence;
  6. the complexity of the issues of fact and law and whether these need an unusual amount of evidence to be evaluated;
  7. the complexity of the remedy sought;
  8. the type of case including whether it involves product liability claims;
  9. whether a complex appellate process is anticipated;
  10. whether the cases have been certified as class actions;
  11. whether the case involves claims resulting from natural disasters or catastrophic events; and
  12. the anticipated complexity of the pretrial proceedings.
ix Damages

Courts applying Puerto Rican general tort law can only grant compensatory damages. Punitive damages are not available in Puerto Rico for strict product liability or negligence claims. The trial courts have broad discretion in determining the amount of damages and the appellate courts will only reverse an award if it is extremely low or high.