Holzem v. Presbyterian Healthcare Servs., 34,195

Background

Douglas Reid died of influenza-related complications; plaintiffs (Holzem as personal representative and Christal Reid) sued Presbyterian Healthcare Services and Dr. Joseph Helak for malpractice, alleging failure to diagnose/treat with Tamiflu.
Plaintiffs’ sole original expert was infectious disease specialist Dr. Darwin Palmer, who testified he taught and treated infectious diseases for decades but had not practiced emergency medicine for ~50 years and retired before Tamiflu existed.
Plaintiffs submitted post-deposition affidavits from Dr. Palmer describing post-retirement experience treating influenza and observations about Tamiflu; defendants moved to strike those affidavits.
On initial summary judgment the district court excluded Dr. Palmer as unqualified (based on lack of emergency-medicine specialization) and granted summary judgment; this Court reversed in Holzem I and remanded, finding the exclusion was erroneous.
After remand, plaintiffs learned Dr. Palmer had Alzheimer’s and could not testify; plaintiffs sought to substitute a new expert. The district court struck Dr. Palmer’s affidavits, excluded his testimony again, denied supplementation of discovery of his videotaped trial deposition (order treated as law of the case), and granted summary judgment. Plaintiffs appealed again.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Exclusion of Dr. Palmer’s expert testimony	Palmer was qualified as an infectious disease specialist to opine on diagnosis/treatment of influenza and Tamiflu	Palmer lacked emergency-medicine specialization; exclusion proper	Court: Exclusion based on lack of emergency specialization was an abuse of discretion (Holzem I); remand exclusion again on same grounds was error
Admissibility of Dr. Palmer’s post-deposition affidavits	Affidavits created factual issues about Palmer’s qualifications re: Tamiflu and should remain	Affidavits should be struck; court may consider record as it stood when motion first filed	Court: Affidavits raised material issues previously; but after Palmer became incapacitated they are now moot to future trial; district court erred in granting summary judgment based on striking them and historical record alone
Plaintiffs’ request to substitute new expert after Palmer’s incapacity	Substitution necessary because Palmer cannot testify; new expert’s CV and opinions were provided	Motion premature; court should first resolve original motions to strike based on remand instructions	Court: Substitution was permissible; remand did not freeze parties to the original record; given change in circumstances summary judgment was improper and plaintiffs should be allowed to proceed with new expert discovery
Denial of supplementation (videotaped trial deposition) / law of the case	Deposition taken after discovery close; plaintiffs later sought to supplement discovery with it	Deposition was untimely; court properly denied supplementation	Court: Plaintiffs did not appeal that order earlier; law of the case applies and court will not revisit denial of supplementation
Summary judgment for defendants	Summary judgment was improper because expert evidence and substitution issues create disputed material facts	Summary judgment appropriate given exclusion/struck affidavits and pre-remand record	Court: Reversed summary judgment; changed circumstances (Palmer’s incapacity and need for new expert) require allowing limited discovery on new expert and further litigation

Key Cases Cited

Holzem v. Presbyterian Healthcare Servs., 311 P.3d 1198 (N.M. Ct. App. 2013) (reversed exclusion of Palmer; remand instructions)
Lopez v. Reddy, 113 P.3d 377 (N.M. Ct. App. 2005) (standard for expert qualification under Rule 11-702)
State v. Lohberger, 187 P.3d 162 (N.M. 2008) (oral rulings are not final; written order controls)
Varney v. Taylor, 448 P.2d 164 (N.M. 1968) (law of the case doctrine scope)
State v. Weber, 417 P.2d 444 (N.M. 1966) (court not required to search record for error)
Madrid v. Brinker Rest. Corp., 363 P.3d 1197 (N.M. 2016) (summary judgment is a drastic remedy to be used with caution)
State v. Hernandez, 846 P.2d 312 (N.M. 1993) (adverse rulings alone do not prove judicial bias)
United Nuclear Corp. v. Gen. Atomic Co., 629 P.2d 231 (N.M. 1980) (same on judicial bias)