Warner v. Calvert, 150 N.M. 333

This interlocutory appeal challenges the district court’s order appointing Judith Wagner as a Rule 11-706 expert and the ruling that Wagner’s 2009 Valuation Report may be admitted at trial.
The suit involves Warner and Nina True asserting damages and equity interests in NAPS and APS, with Phillips as a contested lender/owner; defendants include Calverts, NAPS, APS, and others.
Settlement conferences were ordered; the parties agreed to hire Wagner to perform a valuation of NAPS for mediation, with costs split evenly.
Wagner’s engagement letter and 2009 Valuation Report state the valuation is for mediation purposes and that the report is restricted to mediation/internal use.
A May 18, 2009 district court order appointed Wagner as a Rule 11-706 expert and allowed the 2009 Report to be admitted at trial to discuss liability, subject to limitations.
The court’s opinion addresses whether Wagner, as a nonparty participant in mediation, may testify and whether the 2009 Report is a confidential mediation communication.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Wagner may serve as a Rule 11-706 expert.	Warner contends Wagner is a nonparty participant and cannot testify as an expert.	Appellants contend Wagner’s mediation role taints her qualifications as an independent expert.	Yes; Wagner may serve as a Rule 11-706 expert, with MPA-based limits.
Whether Wagner's 2009 Valuation Report is a confidential mediation communication admissible at trial.	Warner asserts the 2009 Report is confidential mediation material not admissible.	Appellants argue there is no exception allowing disclosure of the report.	No; the 2009 Valuation Report is a confidential mediation communication and not admissible without an applicable exception.

Carlsbad Hotel Assocs., L.L.C. v. Patterson-UTI Drilling Co., 2009-NMCA-005 (N.M. Ct. App. 2009) (MPA applicability after mediation; interlocutory considerations)
Headley v. Morgan Mgmt. Corp., 2005-NMCA-045 (N.M. Ct. App. 2005) (limits on reviewing mediation-related issues)
Marbob Energy Corp. v. N.M. Oil Conservation Comm'n, 2009-NMSC-013 (N.M. Sup. Ct. 2009) (uniform statute construction; mandatory language and legislative intent)
United Rentals Nw., Inc. v. Yearout Mech., Inc., 2010-NMSC-030 (N.M. Sup. Ct. 2010) (statutory interpretation; de novo review; Legislature intent)
Clark v. Lovelace Health Sys., Inc., 2004-NMCA-119 (N.M. Ct. App. 2004) (statutory interpretation and application)
In re Stailey, 117 N.M. 199 (Ct. App. 1994) (broad discretion of district court to appoint independent expert)