Lead Opinion
OPINION
{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 prоgram that the Los Alamos National Laboratory (LANL) conducted from 1959 through the early 1980s. LANL arranged with the Los Alamos Medical Center (LAMO) 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 сomplaint 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 rеview de novo. See Bartlett v. Mirabal,
{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,
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 сourt 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,
{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.,
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,
{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 рublished 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.,
{15} Courts applying this standard have reached different results. By way of example, Dr. Stewart directs our attention to Ball v. Union Carbide Corp.,
required a fact-intensive examination of the geographic scope of the circulation of various publications, the level of saturation of each publication within the relevant communities, the frequency with which articles ... appeared in each publication, the prominence of those articles within the publication, and the likelihood that a reasonable person living in [plaintiffs’ various communities at the same time as [pjlaintiffs would have read such articles.
Id. at 1152. It concluded that such issues were within the purview of a jury. Id.; see also Bibeau v. Pac. Northwest Research Found. Inc.,
{16} Historically, the courts of this state have characterized the application of the discovery rule as a jury question, particularly when conflicting inferences may be drawn. See, e.g., Roberts,
{17} In this case, Dr. Stewart attached written copies of the articles and transcripts of the various publicity concerning the program, but did not present evidence addressing other facts which would allow a factfinder to determine the level of awareness the publicity would generate to a reasonable person in Plaintiffs’ communities. Without this typе of information, we believe that a reasonable inference could be reached that the publicity did not generate a duty to inquire on the part of a reasonable diligent person in Plaintiffs’ situation in Plaintiffs’ communities. We note that some of the Plaintiffs are elderly and live in a small, isolated village in Northern New Mexico and at least one is primarily Spanish speaking and claimed that he could not have understood the publicity without an interpreter.
{18} Moreover, the impact of the publicity raises additional questions of fact. As mentioned above, the various articles, reports, and broadcasts describe the program with varying degrees of specificity. Much of the publicity appears to have been lacking pertinent dеtails, such as the secretive nature of the program and LANL’s failure to obtain informed consent. As such, it remains an open question whether reasonably prudent persons in Plaintiffs’ position would have realized that their decedents might have been involved with the program. Cf. Brown,
{19} In addition, the summary judgment record does not lead to the single conclusion that a reasonably diligent person who made inquiry based upon the publicity would have learned of a claim. See O’Connor,
{20} Dr. Stewart’s argument requires a plaintiff to track through various information sources in order to reach the point of knowledge sufficient to form a belief that the plaintiff may have a claim. Moreover, for Plaintiffs to even understand that they had a claim, they would need to suspect that an autopsy had been performed on their relative. By its very nature, information about the autopsy of a deceased relative is not readily understood or conceptualized. Consequently, we consider Dr. Stewart’s reasoning too tenuous to conclude that the sole reasonable inference is that an inquiry would necessarily lead to sufficient notice.
{21} Therefore, we conclude that the district court erred in ruling that Plaintiffs’ claims are time barred as a matter of law. We acknowledge that the application of the discovery rule may be summarily resolved in exceptional cases. See Brunacini v. Kavanagh,
C. Consideration of Alternative Bases for Affirmance
{22} Dr. Stewart suggests several alternative bases for affirmance of the district court’s order. Although we may affirm a district court ruling on grounds that differ from the theory relied upon below, we only do so when it is fair to the appellant. See State v. Franks,
1. Standing
{23} Dr. Stewart argues that certain class representatives lack standing because they did not execute a consent form for the performance of an autopsy. Because standing is jurisdictional, Dr. Stewart’s apparent failure to raise this issue below does not prevent consideration of it on appeal. See Torn of Mesilla v. City of Las Cruces,
{24} However, even when issues may be raised for the first time on appeal, issues that rely on facts may not be reviewable based on the state of the record. Cf. State v. Wood,
2. Existence of a Legal Duty of Care
{25} In his briefs to this Court, Dr. Stewаrt contends that Plaintiffs’ claims hinge on medical forms used by LAMC to obtain consent to perform autopsies. Because only one of the class representatives was a signatory to one of these authorization forms, Dr. Stewart argues that most of the class representatives lack standing to pursue claims against him.
{26} Dr. Stewart’s argument conflates two distinct legal issues. Standing requires injury in fact, causation, and likelihood of redress. John Does I Through III v. Roman Catholic Church of the Archdiocese of Santa Fe, Inc.,
{27} This argument fails for two reasons. First, we find nothing in the amended complaint or the other pertinent pleadings to indicate that Plaintiffs’ claims are predicated on the consent forms. Rather, Plaintiffs’ tort claims appear to rest on the duty of ordinary care that applies generally to all foreseeable claimants, dependent on public policy considerations. See Herrera v. Quality Pontiac,
{28} Second, Plaintiffs dispute Dr. Stewart’s claim that consent forms were executed in all cases. Plaintiffs contend that a significant number of the decedents were “coroner’s cases,” in which no consent form was required or used. Accordingly, a genuine issue of material fact appears to exist, such that summary judgment could not properly have been granted on the consent theory. See Gardner-Zemke Co. v. State,
3. Class Certification
{29} Dr. Stewart also attacks the validity of the class certification on two grounds. First, he suggests that the district court’s failure to expressly certify Plaintiffs as a sub-class should prevent them from proceeding with the appeal. However, as stated above, the district court appears to have implicitly certified the sub-class when it authorized the settlements. Furthermore, Dr. Stewart points to no New Mexico authority indicating that the district court’s failure to formally recognize the validity of the subclass should prevent Plaintiffs from proceeding with an appeal from the dismissal of their claims. To the extent that Dr. Stewart invites this Court to adopt such a rule, we decline.
{30} Second, Dr. Stewart suggests that the de facto sub-class is overbroad and that application of the discovery rule will require such particularized inquiry with regard to each class member that it is no longer appropriate for the litigation to proceed as a class action. The district court implicitly rejected this argument when it concluded that common questions of fact and issues of law predominate over matters affecting individual class members. See generally Rule 1-023(B)(3) NMRA. We have previously acknowledged that the district courts are better situated to resolve such class certification issues. See Salcido v. Farmers Ins. Exch.,
{31} We therefore conclude that Plaintiffs’ various tort claims were improperly dismissed and that Dr. Stewart’s alternative arguments in support of the district court’s ruling lack merit. With the application of the discovery rule, we need not address Plaintiffs’ fraudulent concealment argument. In the amended complaint, Plaintiffs allege that the defendаnts’ fraudulent concealment tolls the statute of limitations until the FOIA disclosure in 1993. The discovery rule issue in this case addresses the time Plaintiffs should have discovered that they had a claim against Dr. Stewart. Dr. Stewart does not argue that this time was before the FOIA disclosure. Because of the relative time periods embodied within the two issues, we consider the fraudulent concealment issue to be subsumed within the discovery rule issue and to be redundant in Plaintiffs’ case. If further developments in the case demonstrate that the fraudulent concealment issue is not redundant, the district court may address the issue at that time.
Viability of the Fraud Claims
{32} Among the various causes of action in the amended complaint, Plaintiffs assert claims for fraud. The gravamen of these claims is that the defendants, including Dr. Stewart, frаudulently induced class members to consent to autopsies without disclosing the defendants’ secret intent to remove and destroy body parts for purposes of scientific research unrelated to the cause of death. The district court dismissed these claims, apparently on the ground that an action for fraud cannot be maintained unless pecuniary losses are provable. Plaintiffs appeal this ruling.
{33} As an initial matter, Dr. Stewart contends that the viability of the fraud claims is not properly before this Court. Specifically, Dr. Stewart argues that Plaintiffs failed to perfect their appeal from the order dismissing their claims for fraud because that order was not attached to the notice of appeal. However, the Rules of Appеllate Procedure merely require the final order to be attached. See Bd. of County Comm’rs v. Ogden,
{34} The elements of fraud include (1) a misrepresentation of fact, (2) either knowledge of the falsity of the representation or recklessness on the part of the party making the misrepresentation, (3) intent to deceive and to induce reliance on the misrepresentation, and (4) detrimental reliance on the misrepresentation. See UJI 13-1633 NMRA; see also Unser v. Unser,
{35} As a general rule, emotional distress damages are not available in a fraud claim because of the lack of pecuniary loss. 2 Dan B. Dobbs, Law of Remedies § 9.2(4), at 560 (2d ed.1993). The theory of the general rule is that fraud is an economic tort which protects economic interests, and other torts protect interests in personalty. As a result, even though fraudulent misrepresentation may cause emotional distress, such distress has not generally been recognized as an element of damage. Id. The Restatement of Torts comports with this general rule. See generally Restatement (Secоnd) of Torts § 525 (1977). New Mexico has not addressed the issue. Our cases involving actionable fraud have been commercial in nature, and the damage awards have been calculated accordingly. See, e.g., Register v. Roberson Constr. Co.,
{36} Plaintiffs urge that we make an exception to the general rule based on Flores. In Flores, our Supreme Court recognized a claim for emotional distress damages in connection with the breach of a funeral and burial services сontract. Flores,
{37} We are not inclined to do so in this case. First, the approach set forth by Professor Dobbs is reasonable. As accepted by our Supreme Court, when parties to a contract contemplate the emotional distress damages, the contrаct would be frustrated unless such damages could be awarded upon breach. Id. In the tortious circumstances of fraudulent concealment as alleged in this ease, there is no meeting of the minds or expression of the parties’ intent as with a contract. Second, this case points out the difficulty with recognizing emotional distress damages for fraudulent concealment. Because a funeral and burial services contract contemplates the mental well-being of the living, it is possible to address damages with clarity in discussing the family’s rights as intended third-party beneficiaries of the contract. Id. at 310-11,
{38} We are supported in this view by our Supreme Court’s limitations in cases involving emotional distress. The tort of negligent infliction of emotional distress is “extremely narrow” and is limited to bystander recovery. See Fernandez v. Walgreen Hastings Co.,
{39} Plaintiffs have alleged claims of intentional infliction of emotional distress, negligence, mistreatment of a corpse, civil conspiracy, and aiding and abetting that remain viable in this case. The district court properly dismissed Plaintiffs’ claims for fraud.
Conclusion
{40} We uphold the dismissal of Plaintiffs’ claims for fraud. However, we conclude that the application of the statute of limitations presents a jury question. We therefore reverse and remand for further proceedings.
{41} IT IS SO ORDERED.
Concurrence in Part
(concurring in part and dissenting in part).
{42} I concur with the majority opinion in all respects excеpt its conclusion that the fraud claims were properly dismissed. Defendants obtained dismissal of the fraud claims pursuant to Rule 1 — 012(b)(6) NMRA on the basis that damages in a fraud action are limited to pecuniary, actual monetary losses, and plaintiffs only alleged they suffered non-peeuniary mental or emotional distress damages as a result of the fraud. No New Mexico case has ever limited fraud damages to pecuniary, actual monetary losses, and whether a claim for fraud is stated when only such damages are alleged is a question of first impression in New Mexico.
{43} Allowing the recovery of mental or emotional distress damages in appropriate cases is consistent with evolving New Mexico tort and contract law. In Flores,
{44} I agree that awarding mental and emotional distress damages in a fraud case should not be without limitations. However, the issue is before us pursuant to Rule 1-012(b)(6). A motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 1-012(B)(6) tests the legal sufficiency of the complaint. “A motion to dismiss should be granted only when appears that the plaintiff is not entitled to recover under any facts provable under the complaint.” Kirkpatrick v. Introspect Healthcare Corp.,
{45} In this case Plaintiffs allege that Dr. Stewart and Defendants fraudulently induced them to authorize autopsies of their loved ones to determine the cause of death without disclosing their secret intent to remove and destroy body parts for purposes of scientific research unrelated to the cause of death. All the elements of a fraud claim under UJI 13-1633 are stated: (1) Defendants’ misrepresentation of a fact; (2) Defendants’ knowledge of the falsity of their representation; (3) Defendants’ intent to deceive and induce reliance on the misrepresentation; and (4) detrimental reliance on thе misrepresentation. See Unser,
{46} Numerous decisions from many states have already held, in varying contexts, with various limitations, that mental or emotional distress damages are recoverable in a fraud action. See Steven J. Gaynor, Annotation, Fraud Actions: Right to Recover for Mental or Emotional Distress,
There are assuredly cases in which some kind of intangible-harm damages should be awarded when the defendant’s misconduct consists in part of fraudulent representations. Given the plenteous supply of tort doctrine for redress of emotional harm claims, however, there may be little or no need to add such a claim to fraud cases, where it would be quite likely to become a routine allegation. When it is coupled with punitive damages, it may, in addition, tend to weigh the misconduct twice. In any event, if emotional harm damages are to be permitted in fraud cases, it would be desirable to identify particular elements that especially justify such recovery. This might be done most readily by recognizing that the emotional harm recovery should be awarded when the elements of some other tort, such as intentional infliction of distress, can be shown, and that fraud itself would in some cases tend to show some of the elements of the intentional infliction tort.
Id.
{47} Since I am unable to agree with the majority that mental or emotional damages are never recoverable in any fraud case under any circumstances, I respectfully dissent from that portion of the opinion affirming dismissal of the fraud claims. In all other respects I agree with the majority.