Lewis ex rel. Lewis v. Samson

• Decision Date: 09 November 2001
• Docket Number: No. 25,990.,25,990.
• Citation: 35 P.3d 972,131 N.M. 317,2001 NMSC 35
• Parties: Marta LEWIS, as personal representative of the Estate of Martin C. LEWIS, deceased, Plaintiff-Respondent, v. Norberto R. SAMSON, Jr., M.D., and Raymond F. Ortiz, M.D., Defendants-Petitioners.
• Court: New Mexico Supreme Court

35 P.3d 972

131 N.M. 317

2001 NMSC 35

Marta LEWIS, as personal representative of the Estate of Martin C. LEWIS, deceased, Plaintiff-Respondent, v. Norberto R. SAMSON, Jr., M.D., and Raymond F. Ortiz, M.D., Defendants-Petitioners.

No. 25,990.

Supreme Court of New Mexico.

November 9, 2001.

Hinkle, Hensley, Shanor & Martin, L.L.P., William P. Slattery, David B. Lawrenz, Santa Fe, NM, Madison, Harbour, Mroz & Brennan, P.A., Lorri Krehbiel, Albuquerque, NM, for Petitioners.

The Holland Law Office, Jo Anne Shanks, Santa Fe, NM, for Respondent.

OPINION

SERNA, Chief Justice.

{1} Plaintiff Marta Lewis, acting as personal representative for decedent Martin C. Lewis, filed an action for wrongful death arising out of medical malpractice against Defendants Norberto R. Samson, Jr., M.D., and Raymond F. Ortiz, M.D. Following a jury verdict and judgment in favor of Defendants, Plaintiff appealed to the Court of Appeals. The Court of Appeals reversed the judgment and remanded for a new trial based on the conclusion that the district court abused its discretion in relation to a discovery ruling. Lewis v. Samson, 1999-NMCA-145, ¶ 2, 128 N.M. 269, 992 P.2d 282, cert. granted, No. 25,990, 128 N.M. 150, 990 P.2d 824 (1999). The Court of Appeals also ruled that the district court erred in denying Plaintiff's pretrial motion to exclude evidence concerning comparative fault. Id. ¶ 3. We granted Defendants' petition for writ of certiorari to the Court of Appeals in order to review both rulings made by the Court of Appeals. We now reverse.

I. Facts and Proceedings

{2} In February 1994, Moses Griego stabbed Martin Lewis in the back eight times during a fight in Tucumcari, New Mexico. Seven of the eight stab wounds penetrated Lewis's lungs. Following the stabbing, Lewis was treated by Defendants at the emergency room of Dan C. Trigg Memorial Hospital (Trigg Hospital) in Tucumcari. At some point during the treatment, Defendants telephoned the University of New Mexico Hospital (University Hospital) to request an emergency transfer of Lewis for a thoracotomy. University Hospital informed Defendants that Lewis would not survive a ground transfer and sent a specialist to Trigg Hospital by plane. Defendants attempted to stabilize Lewis but did not perform a thoracotomy; instead, they awaited the arrival of the specialist. Approximately two hours later, the specialist arrived and immediately performed a thoracotomy, but Lewis did not survive. Griego was later convicted of second degree murder for the stabbing.

{3} Plaintiff brought suit against Defendants, alleging medical negligence in their treatment of Lewis. Plaintiff also originally named University Hospital as a defendant and initially filed her complaint in October 1995 in the Second Judicial District. Following an amicable resolution of the claim against University Hospital, Plaintiff dismissed University Hospital as a defendant. Plaintiff then re-filed in the Tenth Judicial District in January 1997. The district court, in February 1997, set the trial date for July 14, 1997; however, the court rescheduled the trial for January 1998 due to an inability to seat an impartial jury.

{4} At trial, Plaintiff attempted to establish Defendants' negligence by introducing expert testimony that Defendants performed below the standard of care for a reasonable physician. Specifically, Plaintiff's expert testified that Defendants should have inserted chest tubes earlier, should have attempted to transfer Lewis more quickly, and should have attempted to perform a thoracotomy as a last resort. Plaintiff's expert testified that Lewis had a ninety percent chance of survival if he had received appropriate care. In response, Defendants testified that they were not properly trained to perform a thoracotomy, that they sought to transfer Lewis in a timely manner, and that they did not unduly delay the insertion of chest tubes. Defendant Samson, a general surgeon, testified that he had not performed a thoracotomy in sixteen years, that no physician had privileges to perform an open thoracotomy at Trigg Hospital at the time of the incident, and that the emergency room was not properly equipped and the staff not properly trained to perform an open thoracotomy. In addition, Defendants introduced expert testimony to support their contention that they performed within an acceptable range of medical care. Defendants' expert testified that the timing of the insertion of chest tubes made no difference in the outcome of Lewis's treatment. Defendants' expert testified that nothing could have been done to save Lewis's life given the number and severity of the stab wounds, the occurrence of the stabbing in the rural area of Tucumcari, and the unavailability of an experienced chest surgeon. With regard to the timeliness of seeking to transfer Lewis, the parties disputed whether Defendant Ortiz first called University Hospital about transferring Lewis at 3:06 a.m., as claimed by Defendants, or at 3:57 a.m., as claimed by Plaintiff. Although telephone records indicated a call from Trigg Hospital to University Hospital at both 3:06 a.m. and 3:57 a.m., the parties disputed whether Lewis was the subject of the first call. Defendants also argued that Griego's tortious and criminal act of repeatedly stabbing Lewis constituted the sole proximate cause of Lewis's death. By special verdict, the jury found that Defendants were not negligent in their treatment of Lewis and returned a verdict in favor of Defendants.

II. Discovery Rulings

{5} This appeal implicates two separate discovery rulings made by the district court: (1) the partial granting of a defense motion to exclude witnesses due to a lack of timely disclosure; and (2) the denial of Plaintiff's motion to reopen discovery and to modify the discovery deadlines in a pretrial order. The Court of Appeals concluded that the district court abused its discretion in denying Plaintiff's motion to reopen discovery. Lewis, 128 N.M. 269, 992 P.2d 282, 1999-NMCA-145, ¶ 34. As a result, the Court determined that it was unnecessary to address the district court's earlier decision to exclude witnesses. Id. ¶ 24. As explained below, we believe that both of the district court's discovery rulings are interconnected, and we thus disagree with the Court of Appeals' review of the motion to reopen discovery in isolation. We believe it is necessary to review each ruling in order to assess the propriety of the district court's actions in this case.

A. Late Disclosure of Witnesses

{6} On February 12, 1996, Plaintiff responded to a list of interrogatories submitted by Defendant Samson which included a request to identify each witness whom Plaintiff intended to call at trial and a brief synopsis of their testimony. Plaintiff stated that she intended to call "any and all personnel from Dan Trigg Hospital. No other witnesses have been developed." Plaintiff did not supplement her answer to this interrogatory during the course of litigation.

{7} Over one year later, on March 14, 1997, Defendant Ortiz requested that Plaintiff supplement her responses to interrogatories. Defendant Ortiz expressly identified in this letter that he was "primarily interested in [Plaintiff's] trial witnesses and exhibits." Plaintiff failed to respond to this request. On May 30, 1997, approximately six weeks before the original trial date of July 14, 1997, Plaintiff served Defendants a document entitled "Plaintiff's Witness List for Trial." This list included fifteen witnesses that had not been previously disclosed by Plaintiff and were not personnel of Trigg Hospital. Even though the original trial date was imminent, Plaintiff failed to disclose the substance of these witnesses' testimony but stated in a cover letter that "[t]hese are friends and colleagues only and will testify about Martin's life." Plaintiff further indicated that she would, "of course, not call all of them and [would] provide a final list, when determined, by the last part of June," approximately two weeks before trial. Finally, Plaintiff informed Defendants that she would also be calling her expert witnesses. She attached a report from an economist, Dr. Brian McDonald, outlining his opinions concerning economic damages. Plaintiff had not previously disclosed this witness to Defendants, even though Dr. McDonald's report was dated February 26, 1997.

{8} On June 9, 1997, Defendant Ortiz filed a motion to exclude the fifteen fact witnesses disclosed by Plaintiff on May 30, 1997. Defendant Ortiz argued that Plaintiff's late disclosure of witnesses violated the rules of discovery and, due to the lack of specificity with respect to which of the witnesses would testify and the subject matter of the testimony, prejudiced Defendants' ability to depose Plaintiff's witnesses and to prepare rebuttal. In response to this motion, on June 11, 1997, Plaintiff agreed not to call the fifteen fact witnesses identified on May 30, 1997, but still intended to call the late-identified expert, Dr. McDonald, as well as Penny Griner, an employee of University Hospital, and Sharon Faison, an employee of Trigg Hospital. Defendant Samson then filed a motion to exclude these three witnesses on the basis of late disclosure.

{9} The district court held a hearing on the motion to exclude the witnesses on June 30, 1997. At the hearing, Defendant Samson argued that Plaintiff ignored the rules of discovery by disclosing her witnesses at such a late date. Plaintiff did not provide an explanation for the late disclosure. Instead, Plaintiff merely characterized the late disclosure of Dr. McDonald and Griner as her "oversight[s]." She informed the court that Dr. McDonald was a necessary witness for her case and requested a continuance of the case in lieu of excluding Dr. McDonald's testimony. Plaintiff intended to call Griner to testify concerning the transfer telephone calls made by Defendants and, in particular, Defendant Ortiz's assertion that he first called University...