Gilbert v. Barra, 34,560

This is an appeal from a probate dispute concerning the estate of Gilbert S. L. Gilbert; appellant is Andrew S. Bara and an intervenor also sought participation in related appeals.
The Court of Appeals issued a notice of proposed disposition to affirm and initially issued a memorandum opinion affirming, but withdrew it after learning an opposing memorandum had been filed in a related appeal; this opinion replaces the earlier one.
Intervenor (in a separate appeal) moved for reconsideration, sought consolidation of the two appeals, and asked that filings from the related appeal be allowed in this appeal; the Court denied those requests because the intervenor is not a party and consolidation was unwarranted.
Appellant’s sole contested issue on appeal is that district court erred in admitting expert testimony from Dr. Cave, who is not a medical doctor, concerning the decedent’s brain tumor contributing to mental incompetence.
The Court applied the discretionary standard for admitting expert testimony and observed that any doubts about expert evidence are typically addressed through cross-examination and rebuttal, not exclusion.
The Court affirmed the district court’s judgment, concluding that the judge in the bench trial could properly weigh the expert and non-expert evidence and that other evidence of incompetence existed beyond Dr. Cave’s testimony.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of Dr. Cave’s expert testimony on decedent’s incompetence	Dr. Cave was not a medical doctor and lacked qualifications to opine that a brain tumor was a major contributor to incompetence	District court properly exercised its discretion to admit expert testimony; doubts go to weight, not admissibility	Admitted; appellate court affirmed. Trial court discretion governs and bench trial judge could assess credibility and weight
Relief for allegedly questionable expert evidence	Exclusion/remedy needed because of deficiencies in Dr. Cave’s qualifications	Remedy is cross-examination, rebuttal evidence, and argument rather than exclusion	Reversal not warranted; deficiencies do not require exclusion; affirmance affirmed
Motion to reconsider and consolidate appeals by Intervenor	Intervenor sought consolidation and to import filings from related appeal	Court: intervenor is not a party in this appeal; rules do not permit non-party participation; separate appeals raise different issues	Motion for rehearing and consolidation denied
Reliance on notice of proposed disposition and lack of opposition	Appellant challenged only the expert issue; no other specific challenges were presented to the proposed disposition	Court may rely on unchallenged portions of its notice; party must point out specific errors	Court relied on its prior discussion and affirmed the remainder; appellant’s limited challenge insufficient to disturb other conclusions

Loper v. JMAR, 311 P.3d 1184 (N.M. Ct. App. 2013) (admission of expert testimony is within district court discretion)
Lee v. Martinez, 96 P.3d 291 (N.M. 2004) (questionable expert evidence should be addressed by cross-examination and rebuttal rather than exclusion)
State v. Ibarra, 864 P.2d 302 (N.M. Ct. App. 1993) (party opposing summary disposition must specifically point out errors)