September 9, 2019- Charles Miller v. New Mexico Heart Institute, PA, No. A-1-CA-36734

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C o1T ec ti ons to thi s o pin io n not affec tin g the o ut come, at the Co urt's di sc retion, can occur up to th e ti me of pu b li ca ti on with NM
Co mpi lation Com missio n. Th e Court will ensure that th e elect ro ni c vers ion of thi s op ini on is upd ated accord in gly in Od yss ey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	CHARLES MILLER and CA THIE MILLER,
3 	Plaintiffs-Appellant s,
4 	v. 	No. A-1-CA-36734
5 NEW MEXICO HEART INSTITUTE, PA,
6 	and PRESBYTERIAN HEALTHCARE
7 SERVICES,
8 	Defendants-Appellees.
9 CHARLES MILLER and CATHIE MILLER,
10 	Plaintiffs-Appellees,
11 	v. 	No. A-1-CA-37289
12 NEW MEXICO HEART INSTITUTE,
13 	PA,
14 	Defendant-Appellant,
15 	and
16 PRESBYTERIAN HEAL TH CARE
17 SERVICES,
18 	Defendant.
19 CHARLES MILLER and CATHIE MILLER,
Plaintiffs-Appellees,
Court of Appeals of New Mexico
Filed 9/9/2019 1:00 PM

1 v.
2 NEW MEXICO HEART INSTITUTE,
3 	PA,
4 	Defendant,
5 and
6 PRESBYTERIAN HEALTHCARE
7 	SERVICES,
8 	Defendant-Appellant.
No. A-1-CA-37304
9 APPEALS FROM THE DISTRICT COURT OF TAOS COUNTY
10 	Sarah C. Backus, District Judge
11 	Law Office of James H. Wood, PC
12 	James H. Wood
13 	Theresa V. Hacsi
14 Thomas G. Wood
15 	Albuquerque, NM
16 	for Charles Miller and Cathie Miller
17 	Hinkle Shanor LLP
18 	Dana S. Hardy
19 Jeremy Ian Martin
20 	Santa Fe, NM
21 	Kathleen M. Wilson
22 Hari-Amrit Khalsa
23 	Albuquerque, NM
24 for New Mexico Heart Institute, PA
25 	The Melendres Law Firm, PC
26 Walter J. Melendres
27 	Santa Fe, NM
2

1 Leonard Law Office, LLC
2 Keitha A. Leonard
3 Tesuque, NM
4 for Presbyterian Healthcare Services
5 	MEMORANDUM OPINION
6 V ANZI, Judge.
7 	{1} 	The memorandum opinion filed in this case on August 23, 2019, is hereby
8 withdrawn, and this opinion is substituted in its place.
9 	{2} 	After he suffered an infection after open-heart surgery, Plaintiff Charles
10 	Miller, 	together with Plaintiff Cathie Miller, his 	wife, 	(collectively, Plaintiffs)
11 	brought a 	medical 	malpractice action against Presbyterian Healthcare Services
12 (PHS) 	and 	New 	Mexico 	Heart 	Institute 	(NMHI), 	the 	surgeon's 	employer
13 	(collectively, Defendants). 	Plaintiffs alleged that the surgeon was negligent in
14 managing his diabetes before surgery and that he failed to delay surgery because
15 	both he and Defendants had a financial interest in the surgery. At the completion of
16 	Plaintiffs' case, the district court directed a verdict in favor of PHS and, after trial, a
17 jury found in favor of NMHI. The district court first granted Defendants ' request for
18 	costs, then, on Plaintiffs' motion, reconsidered and denied the requests. All three
19 parties appealed, and we consolidated the appeals for review. We affirm.
3

1 BACKGROUND
2 	{3} 	The parties agree on the following essential facts leading to suit. In 2013, an
3 NMHI cardiologist diagnosed Miller with aortic stenosis, 	otherwise known 	as
4 	narrowing of the aortic valve. The treatment for aortic stenos is is replacement of the
5 aortic 	valve 	through 	open-heart 	surgery. 	Miller 	is 	also 	diabetic. 	Diabetes 	is
6 diagnosed when a patient's fasting glucose levels exceed the normal range, which is
7 between 60 to 100 mg/dl. High glucose levels increase the risk of infection after
8 surgery.
9 {4} 	NMHI scheduled Miller to meet with Dr. Richard Gerety, a surgeon employed
10 	by NMHI, on January 31, 2013, with surgery to follow the next day (February 1,
11 	2013) at PHS 's hospital in Albuquerque. At the initial meeting, Dr. Gerety assessed
12 	Miller for surgery and, knowing Miller was a diabetic, ordered a blood test. The
13 	blood test showed Miller 's glucose level was 268 mg/dl. Dr. Gerety performed
14 	surgery on Miller the next day, as had been scheduled. After the surgery, Dr. Gerety
15 	asked an endocrinologist to assess Miller. The endocrinologist noted that Miller's
16 "diabetes has been poorly controlled with a HgbAl c of 8.63 during this admission."
17 {S} 	PHS discharged Miller in stable condition and he returned to his home in Taos.
18 	In early March, however, Miller was flown by helicopter back to Presbyterian
19 	Hospital in Albuquerque, where he was re-admitted for severe sepsis due to an
20 	infection in his surgical wound. Miller remained in the hospital for 67 days: he
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1 received multiple blood transfusions, 	was 	intubated for 	eleven days, 	had 	four
2 surgeries, was on a ventilator, and had parts of his breastbone removed because of
3 necrosis.
4 	{6} 	Plaintiffs filed a medical malpractice complaint against Defendants alleging
5 that Dr. Gerety negligently failed to consider and control Miller 's glucose level or
6 to otherwise manage Miller's diabetes before surgery, and that his failure to do so or
7 delay surgery resulted in Miller 's 	infection. They also alleged that Defendants
8 "placed money or profits over patient care and patient safety" and breached their
9 duty to avoid unreasonable risks to their patients by "failing to maintain policies,
10 practices, and protocols to [(l )] effectively safeguard patients against the risk of
11 	infection [and (2)] monitor and follow-up with high-risk patients like ... Miller[.]"
12 	Plaintiffs also asserted that Defendants negligently "allow[ ed] and encourag[ ed] Dr.
13 	Gerety to operate on ... Miller when he did." One important premise of Plaintiffs'
14 suit is that Dr. Gerety should have postponed Miller's heart surgery until his diabetes
15 	was better controlled but did not do so because he, as well as Defendants, had a
16 financial interest in the surgery going forward on February 1, 2013. This position
17 	was based largely on PHS's assignment to NMHI of certain blocks of time in its
18 	s ur gery suites and on testimony that a failure to use the assigned "block time" may
19 result in a reduction of future block time. The parties disputed whether Miller 's
20 	surgery occurred during an assigned block time at all and whether Dr. Gerety and
5

1 Defendants were motivated by their financial interests to proceed to surgery in spite
2 of Miller's glucose level.
3 	{7} 	The parties engaged in vigorous motions practice and discovery, the rulings
4 on which give rise to most of Plaintiffs' arguments on appeal. The district court
5 granted summary judgment on several issues and dismissed PHS by directed verdict.
6 The jury heard the remaining claims against NMHI in a six-day trial, after which it
7 found in favor of NMHI. After trial , Defendants moved for an award of their costs
8 and 	the 	district 	court 	granted 	their 	motions. 	However, 	after 	a 	motion 	for
9 reconsideration by Plaintiffs, the district court reversed its earlier ruling.
10 	{8} 	All three parties appealed. Plaintiffs argue that the district court erred in its
11 	rulings before and during trial as well as on summary judgment and directed verdicts.
12 Defendants argue that the district court erroneously reversed its ruling as to costs.
13 	We consolidated all three appeals for review. The facts relevant to each of the
14 parties' arguments are included in our discussion.
15 	DISCUSSION
Plaintiffs' Appeal	16 I.
17 	{9} 	We begin by addressing Plaintiffs' appeal. Plaintiffs argue that the district
18 	court erred in its rulings as to discovery motions, jury selection, summary judgment,
19 	and certain evidence at trial, and in its grant of directed verdicts at the close of
20 Plaintiffs' case. They also assert that, even if these errors do not rise to reversible
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1 error, they constitute cumulative error when considered together. We consider each
2 group of arguments in tum.
3 A. 	Discovery Rulings
4 	{IO} 	"Although the rules favor the allowance of liberal pretrial discovery, the trial
5 court is vested with discretion in determining whether to limit discovery." DeTevis
6 	v. Aragon, 1986-NMCA-105, 110, 104 N.M. 793, 727 P.2d 558 (citation omitted).
7 Hence, we review the district court's discovery rulings only for an abuse of that
8 broad discretion. N.M State Inv. Council v. Weinstein, 2016-NMCA-069, i141, 382
9 P.3d 923. Plaintiffs assert that the district court improperly (1) denied their motions
10 	to compel discovery, (2) interpreted and applied the Review Organization Immunity
11 	Act (ROIA), §§ 41-9-1 to -7 (1979, as amended through 2011), and (3) granted a
12 	motion for protective order as to a Rule 1-030(B)(6) NMRA deposition.
13 	{11} 	First, Plaintiffs argue that the district court "abused its discretion when it
14 	denied 	Plaintiffs' 	motions 	to 	compel" 	discovery 	as 	to 	Defendants ' 	"financial
15 	motives." Plaintiffs' characterization of the district court 's ruling is misleading. In
16 fact, the district court granted Plaintiffs' motions to compel in large part and ordered
17 	Defendants to supplement their responses to Plaintiffs ' inte1Togatories pertaining to
18 	their finances. Given the district court's ruling, we interpret Plaintiffs ' argument to
19 	focus on the district court 's rulings as to two specific interrogatories highlighted in
20 	Plaintiffs' 	brief. 	In spite 	of the district court 's 	order compelling supplemental
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1 answers as to the cost of maintaining and staffing an operating room, the costs
2 associated with cancelled surgeries, and the revenue obtained from Dr. Gerety's
3 surgeries, 	Plaintiffs 	argue 	that 	the 	district 	court 	erred 	by 	failing 	to 	compel
4 Defendants "to identify persons with knowledge of the block times arrangement or
5 related finances." However, Plaintiffs do not explain how the denial of this request
6 adversely affected them in light of the other discovery they obtained and, therefore,
7 present no argument for review. 	"We decline to review such an undeveloped
8 argument." Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ,-r 15, 137 N.M. 339,
9 	110 P.3d 1076.
10 	{12} 	Second, Plaintiffs argue that the district court erroneously denied their motion
11 	to compel discovery of four incident reports prepared by PHS 's risk management
12 department. 	In 	response 	to 	Plaintiffs' 	request 	for 	documents 	related 	to 	any
13 	investigation into Miller's surgery and subsequent infection, PHS identified four
14 potentially responsive documents, but also 	stated that the ROIA protected the
15 	documents from disclosure. The district court reviewed the reports in camera and
16 denied Plaintiffs' motion to compel, statin g,
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[A]ll of the documents reviewed in camera were generated solely for
peer review. Further, the [c]ourt FINDS that none of the documents are
critical or relevant to Plaintiff[ s' ] case. The [c]ourt also reviewed[] in
camera[] 	items 	identified 	by 	Defendant 	as 	being 	immune 	from
disclosure on the ground of work-product. The [c]ourt has reviewed the
identified 	documents 	in 	camera 	and 	FINDS 	that 	the 	identified
documents 	are 	identified 	as 	confidential 	work product 	documents
generated for quality control/improvement at PHS and appear to the
8

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[c]ourt to be such. None of the documents reviewed appear to be
relevant to Plaintiffs' causes of action against Defendants.
3 See Sw. Cmty. Health Servs. v. Smith, 1988-NMSC-035, ,r 17, 107 N.M. 196, 755
4 P.2d 40 (stating that, after a party seeking discovery demonstrates the relevance of
5 the information sought, the party opposing disclosure under the ROIA bears the
6 burden "to prove that the data or information was generated exclusively for peer
7 review and for no other purpose, and that opinions were formed exclusively as a
8 result of peer review deliberations"). Plaintiffs argue that PHS failed to show that
9 the documents 	were "generated exclusively for peer review 	and 	for 	no 	other
10 purpose" and that disclosure is required because the evidence "is critical to the cause
11 	of action." We decline to reach Plaintiffs' argument because the documents at issue
12 are not in the record. Consequently, we cannot assess whether the district court 's
13 	findings are supported by the evidence or if it otherwise abused its discretion. See
14 State v. Sacoman, 1988-NMSC-077, ,r 27, 107 N.M. 588, 762 P.2d 250 ("Because
15 	the [pertinent] records were not designated as part of the exhibits for this appeal,
16 they are not before this Court for review to determine if the trial court correctly
17 	denied access to them."); Sedillo v. N.M D ep 't of Pub. Safety, 2007-NMCA-002,
18 ,r 21, 140 N.M. 858, 149 P.3d 955 (" It is the burden of the appellant to bring up a
19 record sufficient for review of the issues he or she raises on appeal. " (alteration,
20 	internal quotation marks, and citation omitted)).
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1 {13} 	Third, Plaintiffs argue that the district court "did not apply the correct law
2 when it granted [NMHI's] motion[] for protective order[]" pertaining to depositions
3 under Rule l-030(B)(6). The ruling at issue has a convoluted history. In October
4 2016, Plaintiffs issued a notice ofRule l-030(B)(6) deposition ofDr. Gerety seeking
5 information 	related 	to 	his 	compensation, 	assigned 	block 	times, 	NMHI' s
6 management of block times, revenues from surgeries, and losses from cancelled
7 surgeries, among other things. NMHI sought a protective order, arguing that the
8 topics to be covered were overly broad, that it had not agreed to produce Dr. Gerety
9 as a Rule l-030(B)(6) witness, and that the information sought was the subject of
10 objections pending before the district court. 	It also stated that the information
11 	regarding 	block 	times 	Plaintiffs 	sought 	was 	not 	within 	NMHI ' s 	possession.
12 	However, after Plaintiffs withdrew their deposition notice, NMHI also withdrew its
13 	motion for a protective order.
14 {14} 	Approximately three months before trial , in May 2017, Plaintiffs issued an
15 	amended notice of Rule l-030(B)(6) deposition listing forty-three topics, including
16 	Dr. Gerety' s compensation, revenue from Dr. Gerety' s surgeries, cancelled surgeries
17 	and costs incurred for cancellations, and block times allocated to Dr. Gerety. NMHI
18 	again sought a protective order, and the di strict court held a hearing on the motion
19 	in July 2017, roughly one month before trial was set to begin. Meanwhile, the district
20 	court granted in part Plaintiffs ' motion to compel at a hearing on June 26, 2017. The
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1 information sought in Plaintiffs' Rule l-030(B)(6) notice overlaps substantially with
2 that sought in Plaintiffs ' motion to compel. At the conclusion of the July 2017
3 hearing, the district court granted the motion for protective order, stating that it found
4 that "all of these things that have been requested [in the Rule 1-030(B)( 6) deposition]
5 could have been obtained or probably have been obtained through other discovery
6 processes." 	It 	observed 	that 	Plaintiffs 	could 	have 	sought 	the 	district 	court's
7 assistance 	in 	resolving 	Defendants ' 	objections 	to 	Plaintiffs ' 	interrogatories 	or
8 deposition s, and that some in fact had been resolved. It also noted the impending
9 trial date and described Plaintiffs' notice of deposition as "kind of an ambush" that
10 put Defendants "in a very ... bad position."
11 	{15} 	On appeal, Plaintiffs present a single argument: that the district court failed to
12 	find that there was good cause for a protective order and that, in the absence of such
13 	a finding, a protective order is improper. We discern no error in the district court's
14 ruling. 	Rule 	1-026(C) NMRA 	provides 	that 	"[u]pon 	motion 	by 	any party or
15 	interested person for good cause, the court may make any order which justice
16 	requires to protect a party or person from annoyance, embarrassment, oppression or
17 	undue burden or expense[.]" Despite the fact that neither NMHI nor the district court
18 	used the phrase "good cause," the district court ' s statements indicate that it found
19 that the requested deposition would pose an "undue burden or expense" on NMHI.
20 Given the substantial overlap between the order compelling NMHI to supplement
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1 its responses to Plaintiffs' requests and the timing of Plaintiffs' Rule l-030(B)(6)
· 2 notice, we conclude that the district court did not abuse its discretion in granting
3 NMHI's motion for protective order. See Does I through III v. Roman Catholic
4 	Church of Archdiocese of Santa Fe, Inc., 1996-NMCA-094, ,r 13, 122 N.M. 307,
5 924 P .2d 273 ("[T]he district court has broad discretion in determining whether good
6 cause exists[.]"); cf Rule l-026(B)(2) (permitting the district court to limit discovery
7 	if the discovery sought is "unreasonably cumulative," the party "seeking discovery
8 has had ample opportunity ... to obtain the information sought" or the "burden or
9 expense of the propose discovery outweighs its likely benefit").
10 B. 	Rulings Pertaining to Jury Selection
11 	{16} 	Plaintiffs assert that the district court erred by denying their motion in limine
12 	to treat NMHI and PHS as "one side" during jury selection and at trial. They
13 	maintain that "[d]uplicative and 	cumulative questioning by each Defendant 	is
14 	inherently prejudicial and contrary to Rule 	l-040(C)[(3) NMRA]" and that the
15 	district court improperly permitted "both PHS and NMHI to exercise five jury strikes
16 even though their interests were not diverse[,]" contrary to Rule l-038(E) NMRA.
17 	Plaintiffs do not cite any specific instance in which cross-examination by Defendants
18 	was duplicative.
19 {17} 	Rule l-040(C)(3) provides that"[ o]nly one counsel on a side may examine or
20 	cross-examine the same witness unless otherwise ordered by the court[.]" Plaintiffs
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1 argue that both Defendants are on the same "s ide" and that the district court should
2 not have permitted both NMHI and PHS to question each witness. They argue that
3 the language of Rule 1-040(C)(3) evinces the Legislature's intent1 to limit cross-
4 examination when there are multiple parties on one "side" of the lawsuit. However,
5 the concluding phrase "unless otherwise ordered by the court" indicates that, even if
6 the intent of the rule is to limit duplicative questioning by each defendant, the intent
7 of the rule also is to afford the district court the discretion to modify the rule as
8 appropriate. Cf In re of Estate of Greig, 19 88-NMCA-037, ,r 12, 107 N.M. 227, 755
9 P.2d 71 (noting that "[t]here would have been no need to add the language 'unless
10 otherwise ordered by the court' [to the statute at issue] had the [L ]egislature wished
11 	to restrict the trial court 's discretion" (alteration omitted)). Here, the district court
12 	specifically advised Plaintiffs, "if you believe ... that there is any attempted time
13 	wasting [b y Defendants' cross-examination], you can always approach, and we can
14 talk about it if anybody is attempting to keep you from being able to put your case
15 	on" and advised Defendants that their examinations should not be duplicative or
16 	cumulative. The district court did not abuse its discretion in this regard.
17 	{18} 	Rule l-038(E) provides as follows:
1 Rule 	l-040(C)(3) is a Supreme Court rule, not a statute enacted by the
Legislature. But we interpret Supreme Court rules "in the same manner that we
approach the interpretation of legislative enactments, by seeking to determine the
underlying intent." H-B-S P 's hip v. AircoaHosp. Servs., Inc., 2008-NMCA-013, ,r 5,
143 N.M. 404, 176 P.3d 1136.
13

1 	When there are two or more parties defendant, or parties plaintiff, they
2 	will exercise their peremptory challenges jointly .... However, if the
3 	relief sought by or against the parties on the same side of a civil case
4 	differs, or if their interests are diverse, . .. the court shall allow each
5 	such party on that side of the suit ... five peremptory challenges if the
6 	case is to be tried before a jury of twelve.
7 {19} 	To determine whether the parties on the same side of the suit are diverse, the
8 district court may consider "( 1) whether the parties employed the same attorneys;
9 (2) whether separate answers were filed; (3) whether the parties ' interests were
10 antagonistic; and, (4) in a negligence claim, whether different independent acts of
11 	negligence are alleged in a suit governed by comparative negligence." Gallegos v.
12 	Citizens Ins. Agency, 1989-NMSC-055, il 42, 108 N.M. 722, 779 P.2d 99 (internal
13 	quotation marks and citation omitted). Again, our review is only for an abuse of
14 discretion. See id.
15 	{20} 	On appeal, Plaintiffs' entire argument on this point is that "Defendants made
16 	no showing that they ... [had] diverse interests" and that Defendants could not have
17 been adverse to each other because NMHI' s counsel was representing PHS in
18 	another matter. 	Plaintiffs do 	not address 	the arguments 	or facts 	set forth 	by
19 Defendants in the district court, how those facts fail to satisfy the test in Gallegos,
20 or why it was an abuse of discretion for the district court to decide otherwise. We
21 	therefore decline to address this argument further. See Head ley, 2005-NMCA-045,
22 il 15.
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1 C. 	Summary Judgment
2 {21} 	In the next group of arguments, Plaintiffs contend that the district court erred
3 in granting three motions for summary judgment. "[S]ummary judgment may be
4 	proper when the moving party has met its initial burden of establishing a prima facie
5 case for summary judgment." Romero v. Philip Morris Inc., 2010-NMSC-035, ,r 10,
6 	148 N.M. 713, 242 P.3d 280 (internal quotation marks and citation omitted). The
7 movant may establish a prima facie case by adducing "such evidence as is sufficient
8 in law to raise a presumption of fact or establish the fact in question unless rebutted."
9 Id. (internal quotation marks and citation omitted). If the movant makes a prima facie
10 	showing, "the burden shifts to the non-movant to demonstrate the existence of
11 	specific evidentiaiy facts which would require trial on the merits." Id. 	(internal
12 	quotation marks and citation omitted). The non-movant's burden is to "adduce
13 	evidence to justify a trial on the issues"; it may not rest on the allegations in the
14 complaint nor simply assert that facts might exist. Id. (internal quotation marks and
15 	citation omitted). 	"We resolve 	all 	reasonable 	inferences 	in favor 	of the party
16 opposing summary judgment, and we view the pleadings, affidavits, depositions,
17 	answers to interrogatories, and admissions in the light most favorable to a trial on
18 	the merits." Madrid v. Brinker Rest. Corp. , 2016-NMSC-003, ,r 16, 363 P .. 3d 1197.
19 Although summary judgment is viewed with disfavor in New Mexico, id., summary
20 judgment 	is 	appropriate 	only 	when 	inferences 	drawn 	from 	the 	evidence 	are
15

1 reasonable. Romero, 2010-NMSC-035, ,r 10. An inference " is not a supposition or a
2 	conjecture, but is a logical deduction from facts proved and guess work is not a
3 	substitute therefor." Id. (internal quotation marks and citation omitted). We review
4 	the district court' s grant or denial of summary judgment de novo. Id. ,r 7.
5 	1. 	NMHl's Motion for Summary Judgment
6 	{22} 	Plaintiffs argue that the district court erred by granting summary judgment to
7 NMHI on Plaintiffs' claims that NMHI was negligent. In their complaint, Plaintiffs
8 alleged that
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NMHI ... : (A) failed to have safeguards in place to prevent surgeons
like Dr. Gerety from performing heart surgery on patients with a high
risk 	of post-operative 	infection; 	(B) 	failed 	to 	have 	policies 	and
procedures in place to ensure that surgeons like Dr. Gerety did not
perform "open heart" surgery on patients with a high risk of developing
post-operative infection; (C) failed to train its staff on recognizing
patients at risk of post-operative infection; (D) failed to prevent and to
train its staff to prevent "open heart" surgery on patients at risk of
developing a post-operative infection; (E) improperly and negligently
allowed Dr. Gerety to operate on ... Miller and to operate on ... Miller
when 	he 	did; 	(F) 	negligently 	credentialed 	Dr. 	Gerety; 	and 	(G)
negligently supervised Dr. Gerety's care and treatment of ... Miller.
21 	They also alleged that "NMHI . . . placed money or profits over patient care and
22 	patient safety." In the district court, NMHI argued that "[s]ummary judgment ... is
23 	proper because Plaintiffs have failed to disclose the expert testimony necessary to
24 	support their position that NMHI [was] medically or professionally negligent or
25 	caused any alleged injuries or damages to Plaintiff." It also argued that summary
26 judgment was proper because "no evidence has been adduced to 	support such
16

1 claims." 	In 	response, Plaintiffs 	argued 	that 	their 	claims 	against 	NMHI 	were
2 "ordinary negligence" claims such that expert testimony was not required. Plaintiffs
3 also argued that, because NMHI had refused to respond to discovery requests that
4 would reveal evidence to rebut the summary judgment motion, the district court
5 "should allow Plaintiffs to obtain the requested discovery in order to fully respond
6 to" NMHI's summary judgment motion. See Rule l-056(F) NMRA.
7 	{23} 	We first address Plaintiffs' 	argument regarding discovery under Rule 	1-
8 056(F), beginning with the procedural background against which the district court
9 heard NMHI's motion for summary judgment. In an affidavit attached to Plaintiffs'
10 	response, Plaintiffs' counsel stated that the information sought in Plaintiffs ' motion
11 	to compel and Rule l-030(B)(6) deposition was needed in order to respond to the
12 	summary judgment motion. Plaintiffs filed this affidavit and their Rule l-056(F)
13 	request one day after the hearing on Plaintiffs ' motion to compel discovery on June
14 26, 2017, during which the district court granted that motion in large part. The
15 	district court then granted NMHI's motion for protective order at a hearing on July
16 	6, 2017, precluding Plaintiffs' Rule l-030(B)(6) deposition. Thus, as of the July 26,
17 	2017 hearing on NMHI ' s motion for summary judgment, the district court had
18 	verbally ruled on both discovery motions, although it had not yet filed written orders.
19 The fact that the district court had ruled on both discovery motions may explain why
20 Plaintiffs did not pursue the need for discovery in the hearing on NMHI's motion
17

1 for summary judgment. At any rate, Plaintiffs did not mention the need for discovery
2 in order to rebut NMHI' s motion, arguing instead that their claims could be proven
3 without expert testimony and that the evidence in hand wa s sufficient to demonstrate
4 a genuine issue of material fact. Nor did Plaintiffs request a continuation of the
5 hearing pending receipt ofNMHI ' s supplemented discovery. Consequently, because
6 the district court did not rule on Plaintiffs' argument regarding discovery needed to
7 rebut the summary judgment motion, this issue was not preserved for appeal. See
8 	Crutchfield v. N.M. Dep 't of Taxation &Rev enu e, 2005-NMCA-022, il 14 , 137 N.M.
9 26, 106 P.3d 1273 ("To preserve error for review, a party must fairly invoke a ruling
10 	of the district court on the same grounds argued in this Court." ).
11 	{24} 	As to their substantive arguments, Plaintiffs argue that expert testimony was
12 	not 	required 	because 	their 	claims 	sound 	in 	ordinary 	negligence, 	not 	medical
13 	negligence. They also argue that, assuming expert testimony was required, the
14 testimony of their experts was sufficient to prevail over a motion for summary
15 judgment. The first question before us is, therefore, whether expert testimony was
16 required to prove Plaintiffs ' claims against NMHI.
17 	{25} 	Plaintiffs ' complaint included multiple allegedly negligent acts by NMHI.
18 	However, in their response to NMHI ' s motion, Plaintiffs discussed only NMHI's
19 alleged 	failure 	to 	enact policies, NMHI's 	block times 	scheduling policy, and
20 	NMHI's failure to require Dr. Gerety to communicate with the surgical nurse before
18

1 Miller's surgery. Moreover, on appeal, Plaintiffs present argument only as to the first
2 two claims. Consequently, we too address summary judgment only as to those two
3 claims, beginning with Plaintiffs' allegations regarding NMHI's policies or lack
4 thereof. On appeal, Plaintiffs frame this claim broadly, arguing that it is based on
5 NMHI's failure to implement any measures to ensure quality patient care and stating
6 that "[a] jury can use ordinary knowledge to know that NMHI should have some
7 minimum 	standards 	for 	patient 	quality[.]" 	However, 	both 	the 	complaint 	and
8 Plaintiffs' response to NMHI's summary judgment motion focused the claim much
9 more narrowly on NMHI's failure to enact specific policies to guide Dr. Gerety on
10 "safe pre-operative glucose levels and white blood count levels." We agree with the
11 	district court that expert testimony was necessary for this claim.
12 	{26} 	Generally, expert testimony is required in medical malpractice cases "to
13 	establish ( 1) the standard of care, treatment, and information by which the actions of
14 the [medical provider] are to be judged; (2) the manner in which [it] measures up to
15 	the standard, and (3) whether [its] alleged acts were the proximate cause of the
16 	injuries complained of." Henning v. Parsons, 1980-NMCA-131, i-f 9, 95 N.M. 454,
17 	623 P.2d 574. However, expert testimony is not required in cases alleging ordinary
18 	negligence: "Where the matter is potentially susceptible to the common knowledge
19 	of the jury, expert testimony is not necessary to establish that the hospital's conduct
20 was negligent." Rule 13-1119A NMRA, comm. cmt.; see Richter v. Presbyterian
19

1 Healthcare Servs., 	2014-NMCA-056, 	il 24, 326 	P.3d 	50 	(" [W]hether a 	claim
2 	involves ordinary negligence or medical malpractice is a fact-dependent inquiry.").
3 We apply a functional test to determine whether expert testimony is required.
4 Richter, 2014-NMCA-056, ilil 22, 25. Under this test, " [i]f the act [alleged to be
5 negligent] involves the use of specialized knowledge or skill to make a judgment
6 	call as to the appropriate thing to do or not do, expert testimony will likely be needed
7 to assess the resultant act or failure to act. If not, expert testimony is not required."
8 Id. ,122.
9 	{27} 	The premise underlying Plaintiffs' argument is that a lay jury can determine
10 whether 	the 	standard 	of care 	requires 	policies 	or 	guidelines 	for 	pre-surgical
11 	assessment of patients for diabetes and infection by cardiothoracic surgeons. We
12 disagree. The necessity of guidelines on these highly specific medical topics depends
13 	on the risks involved, the number and nature of the factors to be considered per
14 patient, the variability of those factors, the existence of other policies, and the
15 	qualifications and training of the people applying such policies. In other words,
16 whether the policies at issue here are within the standard of care requires specialized
17 knowledge and is not "susceptible to the common knowledge of the jury." Rule 13-
18 	1119A, comm. cmt.; see Grassie v. Roswell Hosp. Corp. , 20 l l-NMCA-024, il 80,
19 	150 N.M. 283, 258 P.3d 	1075 ("[U]nless a hospital's negligence is obvious, a
20 	plaintiff must produce expert testimony to establish that the hospital deviated from
20

1 an accepted standard of care and that the deviation was a substantial factor in causing
2 the harm to the plaintiff1.]" (quoting Welsh v. Bulger, 698 A.2d 581 , 585 (Pa. 1997);
3 cf Richter, 2014-NMCA-056, ,r 27 (discussing an out-of-state case in which the
4 court distinguished between "the failure to institute policies and procedures"-
5 which required expert testimony- 	and "inadequacies" in the ministerial task of
6 reporting test results, which did not).
7 	{28} 	To the extent Plaintiffs argue that their experts ' testimony was sufficient to
8 raise a question of fact precluding summary judgment on this claim, we disagree. As
9 Plaintiffs state, their experts' "specialized opinions .. . discuss the sufficiency of
10 care required to operate safely on a patient[.]" Plaintiffs assert that this testimony
11 	"was sufficient to educate the jury on the type of standards to which NMHI should
12 hold its surgeons[.]" We are unpersuaded. These opinions go to whether Dr. Gerety
13 	was negligent in deciding to go forward with Miller' s surgery. They do not address
14 	whether NMHI should have implemented policies to guide that decision.
15 	{29} 	We tum to Plaintiffs' claim that NMHI was negligent in using PHS's block
16 times to schedule surgeries because that approach created a financial disincentive to
17 postpone surgeries even when medically necessary. This claim rests on Plaintiffs'
18 	allegation that "Dr. Gerety and PHS did not reschedule the surgery because they did
19 	not want to lose the time slot for financial reasons." We need not determine whether
20 this 	claim falls 	within 	ordinary or medical 	negligence because, 	in their only
21

1 argument on this issue, Plaintiffs state that their expert testified that "it was likely
2 Dr. Gerety' s decision to proceed to surgery had been caused by pressure from the
3 hospital to utilize the time slot[.]" The expert's full testimony was as follows.
4
5
6
7
8
9
10
11
[Dr. Gerety] operated the next day, and which can only make me think
that- 	I mean, my institution and things I know, that the hospital did not
want to lose that slot for financial reasons. And I bet if that was looked
into, that could probably be substantiated, and so they did the surgery
and 	[Dr. 	Gerety] 	didn't 	even 	know 	anything 	about 	[Miller's 	test
results]. And ifhe did know something about [the results] , I would hope
that he would have canceled the surgery, even if there was pressure to
fill that spot. But I don' t know.
12 	Even viewing this evidence in the light most favorable to Plaintiffs and assuming it
13 	expresses an opinion relevant to NMHJ's financial interests ,2 it is pure speculation.
14 The expert acknowledged as much by stating, "if that was looked into, that could
15 	probably be substantiated." He even concludes by stating, "But I don 't know." "The
16 presence of a material issue of fact cannot be based on speculation." Duran v. N.M.
17 Monitored Tr eatment Program, 2000-NMCA-023, i1 28, 128 N.M. 659, 996 P.2d
18 	922; see Ciup v. Ch evron U.S.A. , Inc., 1996-NMSC-062, i1 7, 122 N.M. 537, 928
19 P.2d 263 (stating that the party opposing summary judgment "must come forward
20 and establish with admissible evidence that a genuine issue of fact exists"). As
21 	Plaintiffs present no other argument on this issue, we conclude that the district court
22 	did not err in granting summary judgment to NMHI on this issue.
2 The 	expert references "the 	hospital ' s" 	financial 	interests, but does 	not
mention Dr. Gerety' s or NMHI's financial interests.
22

1 2. 	PHS's Motions for Summary Judgment
2 	{30} 	Plaintiffs argue that the district court erred in granting summary judgment to
3 PHS on two specific issues. Plaintiffs' briefing unnecessarily confuses the issues by
4 failing to distinguish between the two motions and the district court 's rulings on
5 them. Disentangling the motions and Plaintiffs' arguments reveals that, although
6 PHS 's financial motives and the use of block times are related, PHS's motions for
7 summary judgment addressed discrete issues and the district court treated them
8 separately.
9 	{31} 	The first motion (the financial motives motion) addressed "Plaintiffs' claim
10 	that PHS was financially motivated to permit ... Miller's surgery to occur on
11 	February 1, 2013, and not to have cancelled said surgery." PHS sought summary
12 judgment to the effect that its financial motives were immaterial because it was Dr.
13 	Gerety, not PHS, who made the decision to proceed with Miller's surgery. The
14 district court granted the motion after a hearing. Plaintiffs' argument in the brief in
15 	chief as to the financial motives motion rests on what Plaintiffs call the district
16 court 's "repeated reversals." But the district court did not reverse its ruling as to
17 	PHS 's financial motives motion. In their reply brief, in an effort to demonstrate that
18 	questions of fact precluded summary judgment, Plaintiffs assert that "[t]he facts in
19 dispute regarding the financial motive are identical to the facts in dispute regarding
20 block times." In support, Plaintiffs cite their response to PHS 's financial motives
23

1 motion in its entirety. We decline to address this argument because (1) we generally
2 do not address arguments raised for the first time in a reply brief and (2) "[g]eneral
3 assertions of the existence of a triable issue are insufficient to overcome summary
4 judgment on appeal." Guest v. Berardinelli, 2008-NMCA-144, ,r,r 35-36, 145 N.M.
5 	186, 	195 	P.3d 	353. 	Plaintiffs fail 	to 	identify which 	of the thirty pages 	cited
6 demonstrates evidence of a disputed fact and fail to address the factual basis of
7 PHS 's financial motives motion: that PHS did not participate in the decision to
8 schedule Miller's surgery at all, which Plaintiffs did not dispute. "We will not search
9 the 	record 	for 	facts, 	arguments, and 	rulings 	in 	order 	to 	support 	generalized
10 	arguments." Firstenberg 	v. 	Monribot, 	2015-NMCA-062, ,r 26, 	350 P.3d 	1205
11 	(internal quotation marks and citation omitted).
12 	{32} 	Next, we address Plaintiffs' assertion that the district court improperly granted
13 	PHS 's motion for summary judgment on block times. This motion (the block times
14 	motion) addressed Plaintiffs' contention that "the scheduling of ... Miller 's surgery
15 	... was []related to [NMHI's] operating room block times with PHS." PHS argued
16 	that there was no factual dispute that Miller' s surgery occurred outside of NMHI' s
17 	scheduled block times and sought a judgment that " NMHI's block times were
18 	unrelated to the scheduling of ... Miller's surgery."
19 	{33} 	Plaintiffs' briefing of this issue is again frustratingly presented. While the
20 district court initially granted PHS 's block times motion, it subsequently granted
24

1 Plaintiffs' motion to reconsider, thereby effectively denying PHS 's motion. Thus, to
2 the extent Plaintiffs argue that the block times motion was improperly granted in the
3 first 	instance, we 	decline to 	address 	that 	issue. 	Instead, as 	we understand 	it,
4 Plaintiffs ' argument boils down to this: Although the district court ultimately denied
5 PHS ' s block times motion because there was a genuine issue of material fact, it
6 "reversed" its position when it prevented Plaintiffs from admitting evidence at trial
7 related 	to 	block times. 	Plaintiffs 	maintain 	that the 	district court' s "reversals"
8 prejudiced them because they made an argument about the use of block times in
9 opening argument but then were prevented from producing evidence to support it.
10 Thus, despite Plaintiffs ' presentation in their brief, their argument is less about the
11 	district court' s summary judgment ruling (which ended in Plaintiffs ' favor) than it
12 is about the district court' s subsequent inconsistent evidentiary ruling.
13 	{34} 	The 	evidence Plaintiffs 	sought to 	admit was 	a 	letter written 	by PHS 's
14 	scheduling department manager regarding "the block time .. . reserved for [Dr.
15 	Gerety] in [PHS ' s] Main Operating Room" at the time of Miller 's surgery. Although
16 PHS relied on the letter to argue that Miller' s surgery undisputedly took place
17 	outside ofNMHI' s block times and published the letter to the jury during its opening
18 	argument, Defendants objected to Plaintiffs ' admission of the letter on the grounds
19 that it lacked a proper foundation or was hearsay, irrelevant, and inadmissible under
20 	Rule 11-403 NMRA. The district court sustained Defendant s' 	objection, telling
25

1 Plaintiffs' couns el , "I think that you are, for some reason, making an issue up, that
2 you don 't need to make up, and it, it 's mi sleading," and asking, "why are you trying
3 to confuse the jury with this?" See Rule 11-403 ("The court may exclude relevant
4 evidence if its probative value is substantially outweighed by a danger of one or
5 more of the following: unfair prejudice, confusing the issue s, mi sleading the jury,
6 undue delay, wasting time, or needlessly presenting cumulative evidence." ).
7 	{35} 	We review a district court 's evidentiary rulings for an abuse of discretion.
8 Kysar v. BP Am . Prod. Co. , 2012-NMCA-036, ,r 20, 273 P.3d 867. However, "even
9 	if a district court makes an erroneous evidentiary ruling, it does not constitute
10 reversible error unless it results in prejudice." Id. ,r 21 ; see Rule l l-103(A) NMRA
11 	("A party may claim error in a ruling to admit or exclude evidence only if the error
12 affects a substantial right of the party." ). Plaintiffs contend that the district court' s
13 	ruling was prejudicial as a matter of law and rely on three federal criminal cases for
14 the 	proposition 	that 	"[p ]romising 	a 	particular 	type 	of 	[evidence] 	creates 	an
15 	expectation in the minds of jurors, and when . . . counsel without explanation fails
16 	to keep that promise, the jury may well infer that the [evidence] would have been
17 	adverse to his client and may also question the attorney' s credibility." United States
18 	ex re l. Hampton v. Leibach , 347 F.3d 219, 259 (7th Cir. 2003); see United States v.
19 	Gonzalez-Maldonado, 115 F.3d 9, 14 (1st Cir. 1997); A nderson v. Butler, 858 F.2d
20 	16 , 17 , 19 (1 st Cir. 1988), ajf'd sub nom. Commonwealth v. Anderson, 563 N.E.2d
26

1 1353 (Mass. 1990). Plaintiffs' reliance on these cases is misplaced. First, federal
2 court decisions are not binding on this Court. Second, two of the cited cases address
3 the issue in the context of ineffective counsel in criminal prosecutions, which
4 involves a specific analysis not applicable here. Most importantly, however, none of
5 the cases cited hold that a party is prejudiced whenever evidence it promised in
6 opening was not presented at trial. 	Instead, each of these cases considers the
7 prejudice to the offering party in the context of the rest of the evidence and the
8 importance of that evidence to the offerer's case, as we ll 	as other factors. 	In
9 Hampton, for example, the Seventh Circuit noted that the attorney's "breach of the
10 promises he made in the opening statement was not so prejudicial that it would
11 	support relief in and of itself' and went on to examine the failure to present the
12 	promised evidence in light of "the more important failure to investigate exculpatory
13 	occurrence 	witnesses." 	347 	F.3d 	at 	260; 	see Anderson, 	858 	F.2d 	at 	17, 	19
14 (considering the time elapsed between the promise and the end of the defendant's
15 	case (one day), the importance of the promised psychiatric evidence to the defense
16 	(high), and the fact that the idea of psychiatric evidence had been raised in voir dire
17 as well as opening argument); Gonzalez-Maldonado, 115 F.3d at 15 (considering the
18 	reason the evidence was not presented and stating that since "the jury [was not]
19 	informed of the fact that it was the court's ruling, rather than the defendants'
20 decision, that kept [the expert] off the stand[,]" the jury "was likely to infer from
27

1 defense counsel ' s failure to call [the expert] that he was unwilling to testify for the
2 defense").
3 	{36} 	Contrary 	to 	Plaintiffs' 	suggestion, 	Hampton , Anderson, 	and 	Gonzalez-
4 Maldonado demonstrate that the impact of the breach of a promise depends on the
5 specificity of the promise, the importance of the promised evidence to the case, the
6 length of the trial, the reason for the failure to present the promised evidence, and
7 whether the jury was made aware of the reason. On appeal, a party arguing for
8 reversal on this basis must address the promise in the context of the entire trial.
9 Plaintiffs 	do 	not 	do 	so, and 	this 	Court will 	not 	search the 	record 	for 	them.
10 Firstenberg, 2015-NMCA-062, ,r 26 ("We will not search the record for facts,
11 	argument s, 	and 	rulings 	in 	order 	to 	support 	generalized 	arguments. " 	(internal
12 quotation marks and citation omitted)).
13 	{37} 	However, several facts here lessen any possible prejudice to Plaintiffs. First,
14 because the district court excluded the exhibit after Defendants ' objection, it was
15 	clear to the jury that it was the district court ' s decision, not a decision by Plaintiffs'
16 counsel that prevented admission of the letter. This fact precluded any inference the
17 jury might have drawn that Plaintiffs ' counsel chose not to present the letter because
18 	it did not support Plaintiffs ' case. See Gonzalez-Maldonado, 115 F.3d at 15 (noting
19 	that prejudice arose because the jury did not know that it was the district court's
20 	ruling that precluded admission of the promised evidence). Second, si x days elapsed
28

1 between opening argument and the jury's deliberations, which reduced the impact
2 of the promise. Cf Anderson, 858 F.2d at 17 (noting that only one day passed
3 between the promise and jury deliberations). Third, in making its initial ruling to
4 permit the block times issue to go to the jury, the district court stated that it "w[ould]
5 prevent [block time evidence] from being used if it is not appropriate." Finally, both
6 PHS and NMHI sought through various pre-trial motions to prevent admission of
7 block times evidence, indicating that it was a hotly contested issue. Both of these
8 facts put Plaintiffs on notice of the dangers of promising that evidence in opening
9 argument. Cf Kysar, 2012-NMCA-036, ,r 23 (stating that "[i]t is often impossible to
10 	make definitive evidentiary rulings prior to trial because admissibility will depend
11 	on the state of the evidence at the time of the ruling" and that the context at trial
12 "may demonstrate that excluded evidence is, in fact, relevant and admissible, making
13 	it proper for the district court to revisit, and modify or reverse its prior ruling"
14 	(internal quotation marks and citation omitted)).
15 	{38} 	In sum, Plaintiffs do not present a reviewable issue as to the district court's
16 	grant of summary judgment to PHS on its financial motives and block times motions.
17 	In addition, even if the district court erred in excluding the letter regarding block
18 	times from evidence, Plaintiffs have failed to demonstrate that the ruling prejudiced
19 them. In the absence of such a showing, we will not reverse on this ground. Hartman
20 	v. 	Texaco Inc., 	1997-NMCA-032, if 25 n.4, 	123 N.M. 220, 937 P.2d 979 ("An
29

1 assertion of prejudice is not a showing of prejudice. In the absence of prejudice, there
2 is no reversible error." (internal quotation marks and citation omitted)).
3 D. 	Admission of the Endocrinologist's Note
4 	{39} 	Plaintiffs next argue that they "were severely prejudiced when they could not
5 use [a medical note made by an endocrinologist the day after Miller's surgery] during
6 the testimony of both of their experts or with Dr . Gerety[.]" In that note, the
7 endocrinologist wrote that Miller's "diabetes was poorly controlled with a HgbA 1C
8 of 8.6 during this admission." Plaintiffs argued that this evidence was relevant to
9 rebut Dr. Gerety's testimony that Miller's diabetes was "reasonably well controlled"
10 	at the time of surgery. Plaintiffs sought to admit the note three times; the district
11 	court denied its admission on the ground that it was an improper new opinion by an
12 	expert, that it was hearsay, and that it was cumulative and prejudicial, respectively.
13 	In addition to arguing that the district court's rulings were correct, NMHI argues that
14 Plaintiffs have failed to demonstrate prejudice resulting from the district court's
15 	rulings. Again, we agree. See Kysar, 2012-NMCA-036, ,r 21 (" [E]ven if a district
16 court makes an erroneous evidentiary ruling, it does not constitute reversible error
17 unless it results in prejudice.").
18 	{40} 	Ultimately, Plaintiffs admitted the note into evidence during their examination
19 	of PHS 's corporate representative in their case in chief on the fifth day of trial.
20 Thereafter, Plaintiffs used the note to cross-examine two of Defendants' witnesses
30

1 and referenced the note in their closing arguments. The note was included in the
2 exhibits sent to the jury room. On appeal, Plaintiffs assert that the inability to admit
3 the 	note 	through 	their 	own 	expert 	was 	prejudicial 	because 	PHS's 	corporate
4 representative was a hostile witness and "a llowing a hostile witness to discuss a
5 record is very different than allowing [Plaintiffs'] experts the same courtesy." While
6 we agree with that general proposition, Plaintiffs do not explain how their experts'
7 testimony would have differed had the note been admitted earlier in their case.
8 Plaintiffs' bare assertion is insufficient to demonstrate prejudice, particularly given
9 the subsequent admission of the note and its use by Plaintiffs during later cross-
10 examination and closing argument. Hartman , 1997-NMCA-032, ,-r 25 n.4 ("An
11 	assertion of prejudice is not a showing of prejudice." (internal quotation marks and
12 citation omitted)).
13 	{41} 	Plaintiffs also argue that the district court "would not allow Plaintiffs to make
14 an offer of proof [regarding the endocrinologist's note] through [their expert]" and
15 	"prematurely" cut short their offer of proof through Dr. Gerety. The record does not
16 	support either of these assertions and we decline to address them.
17 	E. 	Directed Verdict in Favor of PHS
18 	{42} 	At the conclusion of Plaintiffs ' case in chief, the district court granted PHS 's
19 	motion for directed verdict on the claims against it. "A directed verdict is a drastic
20 measure that is generally disfavored inasmuch as it may interfere with the jury
31

1 function and intrude on a litigant's right to a trial by jury." McNeil! v. Rice Eng 'g &
2 Operating, 	Inc., 	2003-NMCA-078, ,r 31, 	133 N.M. 804, 70 P.3d 794 (internal
3 quotation marks and citation omitted). "Hence, a directed verdict is appropriate only
4 when there are no true issues of fact to be presented to a jury, and it is clear that the
5 facts and inferences are so strongly and overwhelmingly in favor of the moving party
6 that the judge believes that reasonable people could not arrive at a contrary result."
7 Id. 	(internal quotation marks and citation omitted). On appeal, "we consider all
8 evidence that has been properly admitted at trial, as well as all reasonable inferences
9 deducible therefrom, resolving any conflicts or contradictions in the evidence in a
10 	light most favorable to the party resisting the motion" and "review de novo the
11 	question whether sufficient evidence exists as a matter of law to justify a verdict in
12 	one party's favor." Id.
13 	{43} 	Plaintiffs argue that the district court should have denied PHS's motion for
14 directed verdict because PHS (1) failed to enforce its Pre-Anesthesia and Surgical
15 	Screening Guidelines (PASS) for pre-surgical testing; (2) inaccurately informed Dr.
16 Gerety of Miller's blood glucose level before surgery; and (3) was negligent in
17 permitting Miller's surgery to proceed on February 1, 2013. As to the first argument,
18 	Plaintiffs maintain on appeal that there was sufficient evidence to demonstrate that
19 	PHS was negligent in not enforcing its PASS guidelines and, therefore, to survive a
20 motion for directed verdict. Plaintiffs acknowledge that defense witnesses testified
32

1 that the PASS guidelines were advisory, not mandatory, but argue that "[t]he
2 contradiction ... [between] the mandatory language of the PASS policy compared
3 to PHS's position that the policy was optional[] created an inference that PHS was
4 negligent." Plaintiffs point to the word "will" in the guidelines as evidence that the
5 procedures therein are mandatory. That language provides, for example, that "a
6 Capillary Glucose will be obtained and the results will be treated by the anesthesia
7 provider according to the [scale in the PASS 	guidelines]." (Emphasis added.)
8 Importantly, Plaintiff does not direct us to any evidence or authority suggesting that,
9 even if the PASS guidelines are mandatory, PHS's failure to enforce them would
10 	fall outside the standard of care. Cf Grassie, 2011-NMCA-024, ,177 ("Mere failure
11 	to 	act 	in 	accordance 	with 	one's 	own 	internal 	procedures, 	however, 	will 	not
12 	automatically thereby render a health care facility negligent." (quoting Titchnell v.
13 	United States, 681 F.2d 165, 173 (3d Cir. 1982)). Indeed, Plaintiffs' expert testified
14 that he had reviewed the PASS 	guidelines 	and had no 	opinion about PHS's
15 	negligence based on the guidelines. 	Plaintiffs 	seek 	to 	undermine the expert's
16 testimony by arguing that the expert was not aware that PHS had "disavowed" the
17 	PASS guidelines by considering them permissive. However, Plaintiffs fail to direct
18 	our attention to any evidence showing whether the expert believed the PASS
19 	guidelines were mandatory or permissive at the time he testified, or that he would
20 	have changed his opinion based on that knowledge. We conclude that the district
33

1 court did not err in granting PHS's directed verdict motion on this ground because
2 there was no testimony supporting Plaintiffs' claim that PHS staff negligently failed
3 to follow the PASS guidelines.
4 	{44} 	Plaintiffs next argue that directed verdict was improper as to their claim that
5 PHS nurses negligently communicated an incorrect blood glucose level to Dr. Gerety
6 prior to surgery. Dr. Gerety did testify that a nurse told him that Miller's blood
7 glucose was 103 mg/dl before surgery, but later retracted this statement, explaining
8 that he could not find that va lue in the medical records and that his earlier testimony
9 	should be disregarded. Plaintiffs maintain that Dr. Gerety's initial testimony presents
10 a triable issue that the jury should have decided. However, since Dr. Gerety testified
11 	that none of Miller's pre-surgery blood glucose levels caused him to consider
12 postponing the surgery, and that Miller's blood glucose level was 142 mg/dl just
13 	prior to surgery, we fail to see how a report by PHS nurses of a lower glucose level
14 would have changed Dr. Gerety's decision to continue Miller 's valve replacement.
15 	{45} 	In a single sentence, Plaintiffs assert that a directed verdict as to PHS 's
16 negligence was improper because their expert "testified that PHS was negligent" and
17 	the district court "had no basis to ask the jury to disregard [the expert]'s opinion."
18 	The exchange referenced was as follows.
19
20
21
Q: So, it's also been alleged in this case that ... Miller's infection was
merely a complication from surgery. So, first of all, does it make sense
for something to be too far removed from the surgery to be related but
34

1
2
3
4
5
6
7
8
also a foreseeable complication that occurs all the time? Does that make
any sense?
A: Yeah, no, and I think that' s what, I would assume, the opposing side
is trying to, I feel , pull over. I mean, you can' t have it both ways. You
can certainly have a complication from surgery that's nobody 's fault.
But this is one complication that in my opinion 	is 	clearly due to
negligence on th e part of th e surgeon and th e part, I think, th e part of
th e hospital as we ll.
9 PHS immediately objected to this statement and argued that the expert' s opinion that
10 PHS was negligent was an improper undisclosed new opinion. The district court
11 	agreed and instructed the jury to disregard the statement as to PHS.
12 	{46} 	Plaintiffs appear to concede that, in the absence of expert testimony that PHS
13 	was negligent, a directed verdict wa s proper and focus their attention on the district
14 court ' s exclusion of the expert' s opinion about PHS. In support of their argument
15 	that the expert ' s statement was not an undisclosed new opinion, Plaintiffs cite the
16 expert' s deposition, discussed more fully above, in which he stated that the timing
17 	of the surgery made him "think that . . . the hospital did not want to lose that slot for
18 	financial 	reasons" 	and 	that 	" if that 	was 	looked 	into, that 	could 	probably 	be
19 substantiated[.]" Assuming that the expert' s statement that PHS was negligent was
20 	based on his opinion about PHS ' s financial 	motives, as Plaintiffs suggest, we
21 	conclude that the district court properly struck the expert's testimony based on
22 PHS ' s financial motives because we ha ve affirmed the district court ' s grant of
23 	summary judgment to PHS on its financial motives for Miller' s surgery. There being
35

1 no other expert testimony that PHS was negligent, we affirm the directed verdict on
2 this issue. See Freeman v. Fairchild, 2018-NMSC-023, ,-r 30,416 P.3d 264 ("Under
3 the right for any reason doctrine, an appellate court may affirm a district court ruling
4 on a ground not relied upon by the district court if ( 1) reliance on the new ground
5 would not be unfair to the appellant, and (2) there is substantial evidence to support
6 the ground on which the appellate court relies." (alterations, internal quotation
7 marks, and citation omitted)).
8 F. 	Cumulative Error
9 	{47} 	Plaintiffs 	maintain 	that 	the 	district 	court's 	rulings, 	considered 	together,
10 deprived them of a fair trial such that reversal is required, even if each alleged error
11 	is not reversible on its own. See Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013,
12 ,-r 57, 127 N.M. 47, 976 P.2d 999 ("Reversal may be required when the cumulative
13 	impact of errors during a trial is so prejudicial that a party was denied a fair trial.").
14 For the most part, Plaintiffs point to the alleged errors already discussed and reiterate
15 	their arguments that these errors, independently or cumulatively, require retrial. As
16 	already stated, 	we conclude that those alleged errors were not preserved, 	are
17 	inadequately raised on appeal, or do not rise to reversible error. Nor do the errors
18 	properly 	preserved 	and 	addressed 	on 	appeal 	rise 	to 	cumulative 	error 	when
19 considered together. To the extent Plaintiffs assert in this section that the di strict
20 court erred in ways not already addressed, we decline to reach these arguments
36

1 because they are inadequately briefed. "We will not review unclear arguments, or
2 guess at what [Plaintiffs'] arguments might be." Headley, 2005-NMCA-045, ,r 15.
3 	G. 	Directed Verdict in Favor of NMHI
4 	{48} 	Finally, Plaintiffs argue that the district court erred in granting a directed
5 verdict in favor of NMHI on the issue of punitive damages. Given our conclusion
6 that no reversible error occurred that would require retrial, we conclude that this
7 issue is moot because the jury found that Dr. Gerety, and therefore NMHI, was not
8 negligent and did not award any compensatory damages. In the absence of a finding
9 of negligence, there is no basis for punitive damages. See Encinias v. Whitener Law
10 Firm, P.A., 2013-NMSC-045, ,r 21 , 310 P.3d 611 ("[N]ominal and punitive damages
11 	are not available in a negligence action absent proof of actual damages."); see also
12 UJI 13-1827 NMRA ("[The jury] may consider punitive damages only if[it] find[s]
13 	that [the party making the claim] should recover compensatory ... damages.").
14 	{49} 	In sum, we see no basis for reversal of the district court's rulings or for a new
15 	trial, and turn next to Defendants' appeal of the district court's rulings on costs.
16 II. 	NMHI and PHS Appeal of Costs
17 {SO} 	After the trial concluded, both NMHI and PHS filed motions for recovery of
18 	their costs. Plaintiffs objected to certain costs as unreasonable or not permitted by
19 	statute. Plaintiffs also asserted that they "simply cannot pay costs to [Defendants]
20 	because they have no assets to do so. Both [Plaintiffs] are disabled and have a very
37

1 fixed, limited income. Plaintiffs respectfully request that the [c ]ourt consider the
2 	financial hardship of [Plaintiffs], and ... use its discretionary authority to not tax
3 costs against [Plaintiffs] in this matter." However, Plaintiffs did not attach any
4 	affidavits or documentation of their finances.
5 {St} 	The 	district 	court 	held 	a 	hearing 	on 	Defendants' 	requests 	for 	costs 	on
6 November 7, 2017. Plaintiffs' counsel appeared by telephone but the connection was
7 	so poor that she often could not be heard or understood, and the district court later
8 referred 	to 	the 	November hearing 	as 	a 	"non-hearing." 	Plaintiffs 	requested 	an
9 evidentiary hearing to demonstrate financial hardship. Defendants objected on the
10 ground that Plaintiffs had failed to attach any evidence of hardship to their responses.
11 	At the end of the nine-minute hearing, the district court took the motions and
12 	Plaintiffs' request for a hearing under advisement. A few weeks later, the district
13 	court issued a letter decision, in which it stated:
14
15
16
17
18
19
As prevailing parties, Defendants are entitled to an award of costs
which 	are 	reasonable. 	I 	am 	sympathetic 	to 	Plaintiffs' 	claim 	of
indigency; 	however, 	they have not provided 	me with evidence of
indigency 	other 	than 	counsel's 	assertion 	that 	they 	live 	on 	fixed
disability 	incomes. 	Without 	evidence 	of 	Plaintiffs' 	income 	and
resources I simply cannot reduce the award on that basis.
20 	The district court also stated that it would disallow certain costs from Defendants '
21 	requests. In total, the district court's letter decision assessed costs against Plaintiffs
22 	in the amount of approximately $61 ,000. The district court did not address Plaintiffs'
38

1 request for an evidentiary hearing. It closed by ordering "Defendants' counsel [to]
2 prepare the orders for entry."
3 	{52} 	After 	Defendants 	prepared 	their 	proposed 	orders 	for 	the 	district 	court,
4 Plaintiffs 	objected 	and 	filed 	their 	own 	proposed 	orders. 	They 	also 	requested
5 permission to file a motion for reconsideration under seal with documentation of
6 their finances. The district court held a hearing on the proposed orders and Plaintiffs '
7 request, at which Plaintiffs pointed out that the district court had not ruled on their
8 request for an evidentiary hearing to demonstrate Plaintiffs' 	indigency. 	At the
9 conclusion of the hearing, the district court stated that it would ( 1) enter the proposed
10 orders submitted by Defendants, with minor adjustments, (2) grant Plaintiffs' request
11 	to file a motion for reconsideration under seal, and (3) hold a hearing on the motion
12 to reconsider after briefing was complete.
13 	{53} 	In support of their motion for reconsideration, Plaintiffs attached an affidavit
14 by Cathie Miller and an ex parte letter from Cathie Miller to the district court judge
15 	describing their finances 	and requesting relief from the cost award. They also
16 	submitted copies of three rent checks, social security benefits statements for 2016,
17 	and correspondence from the Internal Revenue Service (IRS) regarding a tax lien,
18 	and account statements for three bank accounts. After a hearing on the motion, the
19 district court entered an order stating "that Plaintiffs ' [m ]otion is well take[ n] and
39

1 should be GRANTED based on the disparity of wealth among the parties and in the
2 interests of justice."
3 	{54} 	On appeal, NMHI and PHS make essentially the same three arguments. They
4 first contend that the district court should not have considered Plaintiffs' motion for
5 reconsideration because it was not based on "newly discovered evidence." See Rule
6 	l-060(B)(2) NMRA (permitting relief from a judgment or order based on "newly
7 discovered evidence which by due diligence could not have been discovered in time
8 to move for a new trial"). They also argue that (1) the district court improperly
9 considered the relative wealth of the parties and (2) the evidence adduced by
10 	Plaintiffs was inconclusive as to Plaintiffs' finances.
11 	A. 	Appropriateness of the Reconsideration
12 	{55} 	In 	essence, 	Defendants 	argue 	that 	the 	district 	court 	improperly 	heard
13 	Plaintiffs ' motion for reconsideration because the motion included evidence that
14 	Plaintiffs could and should have attached to their initial objections to Defendants '
15 	requests for costs. We review the district court ' s decision to grant or deny a motion
16 for reconsideration only for an abuse of discretion. Unified Contractor, In c. 	v.
17 Albuquerque Haus. Auth. , 2017-NMCA-060, ,r 77, 400 P.3d 290. We discern no
18 	abuse of discretion here.
19 	{56} 	First, although Defendants rely on Rule l-060(B)(2), we construe Plaintiffs'
20 motion for reconsideration as falling within Rule l-059(E) NMRA because Plaintiffs
40

1 filed it within thirty days of the district court's cost orders. See Rule l-059(E) ("A
2 motion to alter, amend, or reconsider a final judgment shall be filed not later than
3 thirty (30) days after entry of the judgment."). Under that rule, "[t]here is no abuse
4 	of discretion for the trial court to consider new material as part of a motion for
5 reconsideration under Rule [ 1-0]59 as long as the delay in presenting the new
6 material is not just for strategic reasons, and its relevance outweighs any prejudice."
7 In re of Estate of Keeney, 1995-NMCA-102, ,I 12,121 N.M. 58,908 P.2d 751.
8 	{57} 	Seeking to distinguish Keeney, NMHI argues that Plaintiffs "made a strategic
9 decision to withhold evidence of financial hardship until the district court ruled
10 	against them." But it does not explain what strategy was served by withholding such
11 	evidence. 	Nor do 	we 	see 	a 	strategic purpose 	in 	Plaintiffs' 	actions: 	Plaintiffs
12 	requested an evidentiary hearing on financial hardship before the district court issued
13 	its letter decision, not after. NMHI also argues that it was prejudiced because
14 	Plaintiffs ' delay in adducing this evidence prolonged the litigation. However, we
15 	conclude that any prejudice to NMHI did not outweigh the relevance of the evidence
16 to the district court's decision. See id. (stating that it is not error to consider new
17 	evidence where its relevance outweighs the prejudice to the non-movant).
18 	{58} 	To the extent Defendants argue that our courts have held categorically that
19 "motions to reconsider should not be used to relitigate previously determined issues
20 	or 	present 	documents 	that 	should 	have 	been 	submitted 	earlier," 	this 	is 	an
41

1 overstatement of the holdings in those cases. In fact, those courts held only that the
2 district 	court 	did 	not 	abuse 	its 	discretion 	by 	declining 	to 	hear a 	motion 	for
3 reconsideration that raised new arguments and adduced evidence. 	See 	Unified
4 	Contractor, Inc., 2017-NMCA-060, ,r 78 (finding no abuse of discretion in denying
5 reconsideration where the motion for reconsideration reiterated arguments already
6 made to the district court); Nance v. L.J. Dolloff Assocs. , Inc., 2006-NMCA-012,
7 ,r 25 , 13 8 N.M. 851 , 126 P.3d 1215 (finding no abuse of discretion in denying
8 reconsideration where the movant raised a new argument and evidence in support of
9 it in a motion for reconsideration); Deaton v. Gutierrez, 2004-NMCA-043, ,r 9, 135
10 N.M. 423, 89 P.3d 672 (finding no abuse of discretion in denying reconsideration
11 	where the omission of documents in prior proceedings appeared to have been
12 	purposeful). They do not stand for the opposite proposition: that a district court
13 	abuses its discretion whenever it hears a Rule l -059(E) motion for reconsideration
14 that presents evidence that could have been adduced earlier.
15 	{59} 	We conclude that there was no abuse of discretion under the facts here. First,
16 	Plaintiffs asserted financial hardship throughout litigation on Defendants' motions
17 	for costs. Second, as the district court acknowledged, the first hearing on costs was
18 	cut short because of difficulties with the telephonic appearance of Plaintiffs. Third,
19 the district court's letter decision, which was not a final 	order, was based on
20 Plaintiffs' failure to adduce evidence even though the district court did not rule on
42

1 Plaintiffs ' request to introduce evidence about their financial straits. See Moffat v.
2 Branc h, 2002-NMCA-067, ,r 23, 132 N.M. 412, 49 P.3d 673 (stating that a letter
3 decision was not a final order where it " [did] not include decretal language and
4 specifically instruct[ ed] counsel to prepare a final order"). We see no abuse of
5 discretion in the district court 's decision to rectify that oversight by permitting
6 Plaintiffs to present evidence it specifically stated would be germane to its final
7 decision. Finally, the district court entered the final cost orders with the express
8 expectation that Plaintiffs would request reconsideration.
9 B. 	Considerations of the District Court
10 	{60} 	Defendants next argue that the district court improperly weighed the parties'
11 	ability 	to 	pay. 	They 	argue 	that 	there 	was 	no 	basis 	for 	the 	district 	court' s
12 	determination that there was a "disparity of wealth between the parties" because
13 	there was no evidence presented as to Defendants ' wealth. In addition, they contend
14 that the relative wealth of the parties is not a proper consideration when determining
15 	cost awards.
16 {61} 	Generall y, "costs, other than attorney fees, shall be allowed to the prevailing
17 party unless the court otherwise directs[.]" Rule l-054(D)(l) NMRA. "[T]he phrase
18 	'unless the court otherwise directs ' states an equitable principle; and, subject to the
19 exceptions imposed by the Rule, vests in the di strict court a sound di scretion over
20 the allowance, disallowance, or apportionment of costs in all ci v il actions." Gallegos
43

1 ex re l. Gallegos v. Sw. Cmty. Health Servs. , 1994-NMCA-037, ~ 29, 117 N.M. 481,
2 872 P.2d 899 (internal quotation marks and citation omitted). In Gallegos, this Court
3 observed that "[t]he 	losing party 	may overcome the presumption 	in 	favor 	of
4 awarding costs to the winning party by showing [among other things] ... that an
5 award would be unjust[.]" Id. (internal quotation marks and citation omitted). We
6 noted that the "most common bases for denying costs to prevailing defendants have
7 been the indigency of the losing plaintiff, coupled with good faith of the indigent
8 and the non-frivolous nature of the case." Id. (internal quotation marks and citation
9 omitted). However, "disparity of wealth between the parties, without additional
10 evidence of the losing party's inability to pay or bad faith of the prevailing party, is
11 	not enough to justify a reduction in the cost award." Key v. Chrysler Motors Co.,
12 	2000-NMSC-010, ~ 15, 128 N.M. 739, 998 P.2d 575 . In other words, "a party should
13 	not be denied an award 	of costs simply because it can afford to swallow the
14 expense." Id . (internal quotation marks and citation omitted).
15 	{62} 	Contrary to Defendants' position, the district court did not base its decision
16 solely on the relative wealth of the parties, despite its supplemental use of that phrase
17 at the hearing and in the order. We "may consider the trial court' s verbal comments
18 	in order to clarify or discern the basis for the order or action of the court below."
19 Jeantete v. Jeantet e, 1990-NMCA-138, ~ 11 , 111 N.M. 417, 806 P.2d 66. At the
20 conclusion of the hearing, the district court noted that it never believed that Plaintiffs
44

1 could afford the cost award and that statements in its letter decision were intended
2 to convey the district court's concern about Plaintiffs' ability to pay. The district
3 court noted that it "ha [ d] the authority to deny a cost award when the party has a
4 financial inability to pay." It also stated that "it is in the interest of justice given the
5 relative wealth of the parties involved that even though New Mexico law allows the
6 award of costs to the prevailing party in most instances, in this instance ... I don't
7 think the bringing of the law suit was in bad faith." The district court's repeated
8 references to Plaintiffs' ability to pay and its reference to Plaintiffs' good faith
9 indicates that the district court properly considered those factors. See Apodaca v.
10 AAA Gas Co., 2003-NMCA-085, ,r,r 105, 108, 134 N.M. 77, 73 P.3d 215 (affirming
11 	the denial of costs where the district court considered "the disparity of resources
12 between the parties" but also considered "the other reasons advanced by [the
13 	p]laintiffs' 	counsel" (internal quotation marks and citation omitted)); 	Gallegos,
14 	1994-NMCA-037, ,r 29 (stating that an award of costs may be denied if the losing
15 	party is indigent and acted in good faith in pursuing a non-frivolous suit).
16 	C. 	Sufficient Evidence
17 	{63} 	Finally, Defendants argue that "Plaintiffs failed to present evidence that is
18 	sufficient to overcome the presumption that [Defendants are] entitled to recover
19 costs." See May v. DCP Midstream, L.P., 2010-NMCA-087, ,r 16, 148 N.M. 595,
20 	241 P.3d 193 ("The language of [Rule l-054(D)(l )] creates a presumption for an
45

1 award of costs in favor of the prevailing party, and the burden is on the losing party
2 to demonstrate circumstances that ju stify the reduction or denial of costs.").
3 	{64} 	In their motion for reconsideration, Plaintiffs submitted an affidavit in which
4 Cathie Miller stated that both she and Miller had fixed income from the Social
5 Security Administration (SSA) and retirement accounts, that they owed back taxes
6 to the Internal Revenue Service and were still paying down a student loan, and that
7 they would not be able to pay the cost award. Plaintiffs attached copies of their SSA
8 statements showing their SSA income in 2016. They also attached bank statements
9 for three accounts showing an average balance of less than $1,000. Finally, they
10 attached an ex parte letter from Cathie Miller to the district court, which showed
11 	Miller's retirement income and stated that Plaintiffs were seventy-eight and seventy
12 	years old.
13 	{65} 	Defendants argue that this 	evidence was 	insufficient to 	show indigency
14 because the affidavit "was not supported by tax returns or other similar, official
15 	documents to confirm Cathie Miller's claims that [Plaintiffs] did not have sufficient
16 	income to pay costs to the prevailing part[ies] in the litigation, or to prove that ...
17 	Miller's previous income from photography was no longer available to [Plaintiffs]."
18 	Defendants do not explain why the district court should not consider a sworn
19 affidavit, even when not accompanied by "official documents," and none of the cases
20 they cited suggest that it would be error to do so. See, e.g., May, 2010-NMCA-087,
46

1 ,r 17 (noting that the district court relied on the plaintiff s affidavit in its cost award
2 determination). In any case, here, the affidavit was accompanied by documents
3 reflecting Plaintiffs' bank accounts and SSA income. We conclude that the district
4 court did not abuse its discretion in considering the affidavit as well as the other
5 documentation submitted. "[T]he di strict court relied on facts in the record and came
6 to a logical conclusion. We therefore conclude the district court did not abuse its
7 discretion" in denying Defendants ' motions for costs. Id.
8 	{66} 	Defendants ' argument that Miller 's deposition and trial testimony suggests
9 that he has income not reflected in the affidavit and supporting documents does not
10 	change our conclusion. Because the district court addressed that testimony in its
11 	verbal ruling, it is clear that it weighed all of the evidence. We defer to the district
12 	court' s credibility determinations and resolution of conflicting evidence. Sanders v.
13 Rosenberg, 1997-NMSC-002, if 11 , 122 N.M. 692, 930 P.2d 1144.
14 	{67} 	We conclude that Defendants have not shown that the district court abused its
15 	discretion in considering Plaintiffs ' motion for reconsideration or in analyzing the
16 cost award, and that the evidence supports its determination that Plaintiffs were
17 unable 	to 	pay 	the 	costs 	requested. 	We 	affirm 	the 	district 	court' s 	denial 	of
18 	Defendants' requests for costs.
47

1 CONCLUSION
2 	{68} 	For the foregoing reasons, there is no basis for reversal of the district court' s
3 rulings and we therefore affirm the jury's verdict in favor of Defendants. We also
4 	affirm the district court's denial of Defendants' motion for costs.
5 	{69} 	IT IS SO ORDERED.
8 WE CONCUR:
9 	• 	,L~·-
10 J. ~s ~udge
11 	~___._~~~~~----'--'---~~~~~~
12 	KRISTINA BOGARDUS, Judge
48