Williams v. Stewart

• Decision Date: 08 June 2005
• Docket Number: Docket No. 23,730.,Certiorari Denied, No. 29,167
• Citation: 112 P.3d 281,2005 NMCA 061
• Parties: ERMELINDA WILLIAMS, NASARIO LOPEZ, LILLIAN STARZYK, OLIVAMA SANDOVAL, and ERLINDA TRUJILLO, on their own behalves and as Representatives of a class of similarly situated persons, Plaintiffs-Appellants, v. MICHAEL W. STEWART, M.D., Defendant-Appellee.
• Court: Court of Appeals of New Mexico

2005 NMCA 061

112 P.3d 281

ERMELINDA WILLIAMS, NASARIO LOPEZ, LILLIAN STARZYK, OLIVAMA SANDOVAL, and ERLINDA TRUJILLO, on their own behalves and as Representatives of a class of similarly situated persons, Plaintiffs-Appellants, v. MICHAEL W. STEWART, M.D., Defendant-Appellee.

Docket No. 23,730.

Court of Appeals of New Mexico.

Corrected: June 8, 2005.

Certiorari Denied, No. 29,167, May 10, 2005.

Filing Date: March 22, 2005.

Richard W. Hughes, Caren I. Friedman, Rothstein, Donatelli, Hughes, Dahlstrom & Schoenburg, LLP, Santa Fe, NM, John C. Bienvenu, Santa Fe, NM, for Appellants.

Robin A. Goble, Alice Tomlinson Lorenz, Gary L. Gordon, Miller Stratvert P.A., Albuquerque, NM, for Appellee.

OPINION

WECHSLER, Judge.

{1} This is an appeal from an order granting summary judgment and dismissing a class action lawsuit. The issues primarily concern the application of the discovery rule. The essential elements of fraud are also at issue. Under the circumstances presented, we conclude that publicity concerning a program to use body parts removed in autopsies did not give rise to a duty to inquire as a matter of law and that the district court therefore erred in determining that the statute of limitations bars the claims asserted. Additionally, we hold that fraud was not adequately pleaded because emotional distress damages are not recoverable as part of the fraud claim. We reverse and remand for further proceedings.

Background

{2} This lawsuit arises out of a program that the Los Alamos National Laboratory (LANL) conducted from 1959 through the early 1980s. LANL arranged with the Los Alamos Medical Center (LAMC) and several of its pathologists to have organs, tissues, and other body parts removed in the course of autopsies performed at LAMC and other area hospitals. The body parts were then delivered to LANL so that their plutonium content could be studied. In total, body parts from 407 individuals (the decedents) were collected as part of this program.

{3} It appears that little or no effort was made to obtain the informed consent either of the decedents before their deaths or their families. Further, neither the existence of the program nor its purposes were publicly disclosed until 1993, when a reporter obtained documents using the Freedom of Information Act (FOIA). See generally 5 U.S.C. § 552 (2002).

{4} Plaintiffs filed this class action lawsuit on October 15, 1996, roughly three years after the FOIA disclosure. Initially, the class included the next of kin and/or the immediate family members of all the decedents who were involved in the program. The Regents of the University of California, as operator of LANL, and Lutheran Hospitals & Homes Society of America, Inc., as operator of LAMC, were among the original defendants. The first complaint sought damages for intentional infliction of emotional distress, conversion, fraud, negligence, and civil rights violations. After discovery had been conducted and additional information had been gathered about the program, Plaintiffs obtained leave to amend their complaint to join Dr. Michael W. Stewart as an additional defendant and to add claims for mistreatment of a corpse, breach of contract, civil conspiracy, and aiding and abetting.

{5} The defendants filed a number of motions to dismiss and for summary judgment. The district court dismissed many of the claims, including the claim for fraud. However, the claims for intentional infliction of emotional distress, negligence, mistreatment of a corpse, civil conspiracy, and aiding and abetting remained.

{6} Following protracted negotiations, Plaintiffs obtained settlements with all defendants except Dr. Stewart. The parties agree that a de facto sub-class was thereby created consisting of only those members of the original class who were related to the decedents autopsied during Dr. Stewart's tenure at LAMC (Plaintiffs).

{7} As the only remaining party-defendant, Dr. Stewart moved the district court to reconsider a motion for summary judgment that he had previously filed, contending that Plaintiffs' claims against him were barred by the statute of limitations. He based his argument on media coverage relating to the program, including television programs and newspaper articles that were published from the 1980s through the mid-1990s. The district court determined as a matter of law that, in light of this publicity, Plaintiffs should have discovered their claims by June 1995. Because Dr. Stewart was not joined as a party until May 1999, the district court concluded that all Plaintiffs' remaining claims were barred. Plaintiffs appealed. Standard of Review

{8} The district court's ruling on the statute of limitations issue presents a question of law that we review de novo. See Bartlett v. Mirabal, 2000-NMCA-036, ¶ 4, 128 N.M. 830, 999 P.2d 1062 (observing that the grant of a motion for summary judgment presents a question of law, which is reviewed de novo). We must review the record in the light most favorable to the non-movant to determine whether there are genuine issues of material fact. Handmaker v. Henney, 1999-NMSC-043, ¶ 18, 128 N.M. 328, 992 P.2d 879.

{9} The district court's dismissal of Plaintiffs' fraud claims also presents a question of law to be reviewed de novo. See City of Sunland Park v. Macias, 2003-NMCA-098, ¶ 9, 134 N.M. 216, 75 P.3d 816.

For purposes of a motion to dismiss, we accept all well-pleaded facts as true and consider whether the plaintiff might prevail under any state of facts provable under the claim. A complaint should not be dismissed unless there is a total failure to allege some matter essential to the relief sought.

Id. (citation omitted).

Statute of Limitations

A. Classification and Accrual of the Causes of Action

{10} The district court and the parties have proceeded on the theory that Plaintiffs' claims for intentional infliction of emotional distress, negligence, mistreatment of a corpse, civil conspiracy, and aiding and abetting are classifiable as claims for personal injuries, such that the three-year statute of limitations applies. See NMSA 1978, § 37-1-8 (1976) ("Actions must be brought . . . for an injury to the person . . . within three years."). In light of Plaintiffs' prayer for damages, by which they primarily seek to recover for pain, suffering, physical injuries, and the emotional distress that they have suffered, we agree with this characterization. See Mantz v. Follingstad, 84 N.M. 473, 478-79, 505 P.2d 68, 73-74 (Ct. App. 1972) (observing that if the object is the recovery of damages for personal injury, the statute of limitations for personal injury claims applies regardless of the form of the claim); cf. Jacobs v. Meister, 108 N.M. 488, 495, 775 P.2d 254, 261 (Ct. App. 1989) (stating that "[d]istress is a personal injury familiar to the law") (internal quotation marks and citation omitted).

{11} Depending on the nature of the claims asserted and the context out of which they arise, personal injury claims may accrue at the time of the occurrence, the time of injury, or the time of discovery. Dr. Stewart does not contest that the time of discovery applies in this case. We therefore apply the discovery rule for our analyses. See Cummings v. X-Ray Assocs. of N.M., P.C., 1996-NMSC-035, ¶ 49, 121 N.M. 821, 918 P.2d 1321 ("A statute of limitations begins to run when the cause of action accrues, the accrual date usually being the date of discovery."); see also Roberts v. Southwest Cmty. Health Servs., 114 N.M. 248, 255-56, 837 P.2d 442, 449-50 (1992) (acknowledging the widespread adoption of the discovery rule, as well as the various policy considerations that support it).

B. Application of the Discovery Rule

{12} The discovery rule provides that "the cause of action accrues when the plaintiff discovers or with reasonable diligence should have discovered that a claim exists." Id. at 255, 837 P.2d at 449. There has been no suggestion that Plaintiffs had actual knowledge of their claims more than three years before the complaint was filed. Instead, the parties dispute whether Plaintiffs "should have discovered" their claims at an earlier date.

{13} The district court concluded that Plaintiffs should have discovered the basis for their claims by June 1995 in light of the publicity that the program received. The evidence supporting this determination included newspaper articles published in The New York Times, The Albuquerque Tribune, the Los Alamos Monitor, the Albuquerque Journal, and The Santa Fe New Mexican, describing the program or other related studies with varying degrees of specificity. Associated Press releases appeared in a number of out-of-state publications. Several television programs aired, including features on 60 Minutes, The Geraldo Rivera Show, and ABC World News Tonight. Finally, several scientific publications described aspects of the program, and there was also a presidential advisory committee report.

{14} The discovery rule carries an inquiry obligation. A plaintiff must exercise reasonable diligence to discover a claim. Id. The standard of "reasonable diligence" imports an analysis of objectivity. See, e.g., Martinez v. Showa Denko, K.K., 1998-NMCA-111, ¶ 24, 125 N.M. 615, 964 P.2d 176 (stating that tolling of the statute of limitations ends when a plaintiff "acquires knowledge of facts, conditions, or circumstances which would cause a reasonable person to make an inquiry leading to the discovery of the concealed cause of action") (internal quotation marks and citation omitted). Under this standard, Plaintiffs had an obligation to inquire as to facts that would indicate they had a claim if the publicity reached a level that would objectively make a reasonable person inquire as to the presence of a claim. See id. ¶ 25 (holding that information the plaintiff received from family, newspaper articles, doctors, and her attorney constituted sufficient information to put a reasonable person on notice and imposed a duty on the plaintiff to...