Holzem v. Presbyterian Healthcare Servs.
2017 NMCA 13
N.M. Ct. App.2016Background
- Douglas Reid died from influenza-related complications; Plaintiffs (his estate and family) sued Presbyterian Healthcare Services and Dr. Joseph Helak for medical negligence, alleging failure to diagnose/treat with Tamiflu.
- Plaintiffs’ sole original expert was infectious disease specialist Dr. Darwin Palmer, who had long teaching/practice experience but had not practiced emergency medicine for decades, retired before Tamiflu’s availability, and later provided post-deposition affidavits claiming post-retirement experience treating influenza and observations about Tamiflu.
- The district court excluded Dr. Palmer’s opinion testimony (focusing on his lack of emergency-medicine specialization) and granted summary judgment for Defendants; this Court reversed in Holzem I, holding the exclusion was erroneous and that Palmer’s infectious-disease credentials could qualify him to opine on influenza treatment/Tamiflu.
- After remand, Plaintiffs discovered Dr. Palmer had Alzheimer’s and could no longer testify; they sought to substitute a new expert and submitted that expert’s qualifications. The district court (1) struck Palmer’s post-deposition affidavits, (2) again excluded Palmer’s opinions, (3) denied admission of his videotaped trial deposition under law-of-the-case, and (4) entered summary judgment for Defendants.
- On this second appeal the Court: affirmed exclusion of Palmer’s videotaped deposition (law of the case), reversed the grant of summary judgment, held the district court abused its discretion by again excluding Palmer based on emergency-medicine specialization, and remanded allowing discovery limited to Plaintiffs’ new expert.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Dr. Palmer’s expert opinion | Palmer’s infectious-disease background qualified him to testify about influenza treatment and Tamiflu | Palmer lacks emergency-medicine specialty and recent practice; therefore not qualified | Court: Excluding Palmer solely for not being an ER specialist was an abuse of discretion (Holzem I controls); original exclusion improper |
| Post-deposition affidavits from Palmer | Affidavits create factual basis for Palmer’s qualifications re: Tamiflu | Affidavits should be stricken as untimely/unsworn corrections; district court should consider record as it was pre-remand | Holzem I: Affidavits created factual issue; on remand, district court erred to treat them as dispositive—circumstances changed so affidavits became irrelevant to current posture |
| Videotaped trial deposition (supplemental discovery) | Plaintiffs sought to supplement discovery with videotaped trial deposition | Defendants sought protective order; district court denied supplementation as outside discovery period | Court: Denial was not challenged in first appeal; law-of-the-case bars reconsideration—affirmed exclusion of videotaped deposition |
| Summary judgment after remand | Plaintiffs: new expert should be allowed; summary judgment improper now that Palmer cannot testify | Defendants: court should resolve prior motions first and decide on original record | Court: Reversed summary judgment; district court should allow limited discovery regarding Plaintiffs’ new expert and proceed accordingly |
| Judicial bias claim | Plaintiffs point to adverse rulings as evidence | Defendants: adverse rulings alone insufficient | Court: Adverse rulings do not show bias; claim rejected |
Key Cases Cited
- Holzem v. Presbyterian Healthcare Servs., 311 P.3d 1198 (N.M. Ct. App. 2013) (Holzem I) (reversed district court’s exclusion of plaintiff’s expert; held infectious-disease credentials could qualify witness on influenza/Tamiflu)
- Lopez v. Reddy, 113 P.3d 377 (N.M. Ct. App. 2005) (medical-expert testimony generally required; Rule 11-702 governs admissibility)
- State v. Lohberger, 187 P.3d 162 (N.M. 2008) (oral rulings and informal expressions are not final; written order controls)
- Varney v. Taylor, 448 P.2d 164 (N.M. 1968) (law-of-the-case doctrine applies to issues that were or could have been raised earlier)
- Madrid v. Brinker Rest. Corp., 363 P.3d 1197 (N.M. 2016) (summary judgment is drastic and to be used with caution)