Collado v. Fiesta Park Healthcare, LLC, A-1-CA-38271

Case DateAugust 31, 2022
CourtCourt of Appeals of New Mexico

ESTHER COLLADO, Deceased, by the Personal Representative of the WRONGFUL DEATH ESTATE, MERLINDA PEREA, Plaintiff-Appellee/Cross-Appellant,




HOMELAND INSURANCE COMPANY OF NEW YORK, a wholly owned subsidiary of ONEBEACON U.S. HOLDINGS COMPANY, INC., Third-Party Defendant.

No. A-1-CA-38271

Court of Appeals of New Mexico

August 31, 2022

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.


Pitman, Kalkhoff, Sicula &Dentice, SC

Jeffrey A. Pitman

Benjamin E. Reyes

Milwaukee, WI

Feliz Angelica Rael

Albuquerque, NM

for Appellees

Holland &Hart LLP

Larry J. Montano

Julia Broggi

Santa Fe, NM

Hogan Lovells

Catherine E. Stetson

Washington, DC

for Appellants



{¶1} Plaintiff, the personal representative of the wrongful death estate of Esther Collado sued Defendants Fiesta Park Healthcare, LLC d/b/a Medical Resort at Fiesta Park (the Medical Resort), Enchanted Health Development, LLC (Enchanted), and WW Management, LLC (WWM), asserting that they were negligent in the care they provided for Mrs. Collado. The jury found that each of the Defendants were negligent and caused injury or damages to Mrs. Collado and allocated a percentage of the negligence to each Defendant. The jury also found that Defendants were engaged in a joint venture.

{¶2} After entry of judgment on the jury's verdict, Defendants filed a renewed motion for judgment as a matter of law (JMOL), or in the alternative a new trial, on the joint venture claim. The district court determined that the evidence did not support the jury instruction on joint venture and granted Defendants' motion. The district court did not, however, order a new trial. Instead, the district court amended the judgment "to eliminate the provisions imposing joint and several liability on Defendants for Plaintiff's claims against them."

{¶3} Plaintiff and Defendants each appeal the district court's ruling on the posttrial JMOL. Plaintiff argues that the district court erred in granting the motion for JMOL, while Defendants argue that the district court erred in not also ordering a new trial.


Defendants additionally appeal the district court's admission of expert testimony and the evidence supporting aspects of the jury's verdict. We reverse the district court's order granting the JMOL, affirm all other aspects of district court's rulings, and remand for entry of judgment reflecting the jury's verdict.


{¶4} Eighty-eight-year-old Mrs. Collado was admitted to the Medical Resort, a skilled nursing facility, from June 25, 2013 to July 31, 2013, following hip surgery. When Mrs. Collado returned home and her stockings were removed, she had wounds that looked like "a giant, purple, red plum" on both heels. A few days later, a certified wound nurse assessed the wounds and determined that Mrs. Collado had sustained a deep tissue injury (DTI) on both heels. The wounds had extensive necrotic tissue that required frequent and painful debridement treatments and cleaning. Mrs. Collado's health deteriorated, and she died on May 26, 2015.

{¶5} Plaintiff brought a wrongful death lawsuit against, in relevant part, the Medical Resort, Enchanted, and WWM and alleged that Defendants were engaged in a joint venture/enterprise while Mrs. Collado was a patient at the Medical Resort. Trial began in January 2019. At trial, Plaintiff presented expert testimony to connect the DTIs Mrs. Collado developed with her death approximately two years later. Dr. Joyce Black, Ph.D., testified that the wounds were likely visible by the time Mrs. Collado was discharged, given that the wounds were at least ninety-six hours old


and likely developed because she was not repositioned for "a good six, eight hours, if not longer." Dr. Richard Dupee, M.D., testified that the DTIs led to various medical complications and deconditioning, which shortened Plaintiff's life expectancy and was a cause of her death.

{¶6} After Plaintiff rested her case, Defendants unsuccessfully moved for JMOL on Plaintiff's joint venture claim. The district court instructed the jury on joint venture, and the jury found all three Defendants were individually liable and that all three Defendants engaged in a joint venture. Posttrial, Defendants again moved for JMOL, or alternatively, for a new trial, on joint venture. The district court granted JMOL and found that

[n]o evidence was presented at trial that The Medical Resort and WW[M] had any agreement to share profits and losses and none can be inferred. . . . As such, the Court erred when it instructed the jury on joint venture. There were no true issues of fact for the jury to determine

Because Defendants' joint and several liability arose from the jury's finding that they had engaged in a joint venture, the district court amended the judgment to eliminate joint and several liability, but left intact the jury's individual liability findings against each entity. The parties appeal.


{¶7} On appeal and cross-appeal, the parties raise the following issues: (1) whether the district court properly granted the posttrial JMOL on the joint venture claim; (2)


whether the district court afforded Defendants the proper remedy after granting JMOL; (3) whether the evidence supported the jury's verdict that found Enchanted and WWM individually liable for a portion of the fault; and (4) whether evidence supporting causation was admissible and sufficient. Because we conclude that the evidence supported the jury's joint venture verdict, we do not address the second issue-the question of remedy. We therefore consider the first, third, and fourth issues in turn.

I. The Joint Venture Evidence Supported the Jury's Verdict

{¶8} Defendants brought the posttrial motion for JMOL on joint venture pursuant to Rule 1-050(B) NMRA. JMOL after a verdict "is proper only when it can be said that there is neither evidence nor inference from which the jury could have arrived at its verdict" and "is improper if different inferences may reasonably be drawn from the evidence." Flanary v. Transp. Trucking Stop, 1968-NMCA-010, ¶ 2, 78 N.M. 797, 438 P.2d 637 (reviewing a judgment notwithstanding the verdict).[1]

In testing the propriety of a judgment notwithstanding the verdict, the evidence favorable to the successful party, together with all inferences
as may be reasonably drawn therefrom, will be accepted as true and all evidence to the contrary will be disregarded.

Rhein v. ADT Auto., Inc., 1996-NMSC-066, ¶ 25, 122 N.M. 646, 930 P.2d 783 (internal quotation marks and citation omitted). We review de novo the district court's grant of Defendants' motion for JMOL. See Williams v. Mann, 2017-NMCA-012, ¶ 25, 388 P.3d 295.

{¶9} A motion for JMOL "is an objection to the sufficiency of the evidence to support the jury's verdict." Perez v. City of Albuquerque, 2012-NMCA-040, ¶ 11, 276 P.3d 973 (internal quotation marks and citation omitted). The district court concluded, and Defendants argue on appeal, that Plaintiff's evidence did not support the elements of a joint venture between the Medical Resort, Enchanted, and WWM. We turn first to the elements required to establish a joint venture, followed by the sufficiency of the evidence supporting the joint venture claim.

A. The Elements of a Joint Venture Claim

{¶10} This Court "measure[s] the sufficiency of the evidence against the jury instructions given." State v. Notah, 2022-NMCA-005, ¶ 7, 503 P.3d 418, cert. denied (S-1-SC-39016). While the parties dispute whether the jury should have received the joint venture instruction, they do not dispute that the instruction given was a correct statement of the law. The jury instructions are therefore the law of the case, see Velasquez v. Regents of N. N.M. Coll., 2021-NMCA-007, ¶ 8, 484 P.3d 970, and we begin with the joint venture instruction given by the district court.

A joint venture is formed when the parties agree to combine their money, property or time for conducting a particular business venture and agree to share jointly in profits and losses, with the right of mutual control over the business enterprise or over the property. A partnership or joint venture may be created or implied by the conduct of the parties. Joint ventures[] may delegate responsibility and control between themselves.

See Quirico v. Lopez, 1987-NMSC-070, ¶ 9, 106 N.M. 169, 740 P.2d 1153 (setting forth the elements of joint venture). It is the role of the fact-finder, in contemplating a joint venture, "to ascertain the intention of the parties as disclosed by their acts in connection with the entire transaction." Id. ¶ 10. In the posttrial motion for JMOL, Defendants argued that the three entities did not have a mutual right to control and that Enchanted and WWM did not have "a right to share in the profits or duty to share in any loss[es]." Based on the analysis in Wirth v. Sun Healthcare Group, Inc., 2017-NMCA-007, 389 P.3d 295, the district court ruled that the trial evidence failed to establish a joint venture. We disagree and explain, beginning with Wirth.

{¶11} In Wirth, the jury found that four entities were "joint venturers," and this Court considered whether the joint venture issue should have been submitted to the jury. Id. ¶ 2. The defendants remaining at the...

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