May 06, 2014 – Anthony and Cheng Silva, Individually and as Personal Representatives of the Estate of Susan Silva, Deceased, and Anthony Silva, Jr., and Jinlen Silva, as Surviving Siblings of Susan Silva v. Lovelace Health Systems, Inc., and Dr. Isabel Lopez-Colberg, No. 31,723

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: _____________
Filing Date: 	MAY 6, 2014
NO. 31,723
ANTHONY and CHENG SILVA,
Individually and as Personal
Representatives of the Estate of
SUSAN SILVA, Deceased, and
ANTHONY SILVA, JR., and
JINLEN SILVA, as Surviving
Siblings of SUSAN SILVA,
Plaintiffs-Appellees,
v.
LOVELACE HEALTH SYSTEM, INC.,
and DR. ISABEL LOPEZ-COLBERG,
Defendants-Appellants.
APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
William A. Sanchez, District Judge
Bowles and Crow
Jason Bowles
B. J. Crow
Albuquerque, NM

Foster, Rieder & Jackson, P.C.
Travis G. Jackson
Albuquerque, NM
for Appellees
Domenici Law Firm, P.C.
Pete V. Domenici, Jr.
Lorraine Hollingsworth
Albuquerque, NM
Rodey, Dickason, Sloan, Akin & Robb, P.A.
Edward R. Ricco
Jocelyn Drennan
Albuquerque, NM
for Appellants

OPINION
FRY, Judge.
{1} 	In this case, we address the doctrine of independent intervening cause in
circumstances where the evidence was conflicting as to whether the conduct of
Plaintiffs’ relative, the decedent, was (1) intentional and (2) foreseeable. Plaintiffs
sued Lovelace Health System, Inc., and Dr. Isabel Lopez-Colberg (collectively,
Defendants) for the wrongful suicide death of Susan Silva (Decedent) on the theory
that 	Dr. 	Lopez-Colberg 	negligently 	prescribed 	Decedent 	twelve 	months 	of
antidepressant refills without requiring follow-up visits while knowing that the drug
may cause suicidality in patients. Defendants raised several defenses to Plaintiffs’
claims, including the defense that Decedent’s overdose on antidepressants and
resulting suicide constituted an independent intervening cause that eliminated any
liability they might have for their own negligence. 	The district court refused to
instruct the jury on this defense. 	On appeal from a jury verdict against them,
Defendants argue that the district court erred in (1) refusing to instruct the jury on
suicide as an independent intervening cause, and (2) denying Defendants’ motion for
a directed verdict on Plaintiffs’ loss of consortium claims.
{2} 	On the first issue, we acknowledge that, in cases involving only the negligence
of the parties, our Supreme Court has virtually eliminated the defense of independent

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intervening cause. See Torres v. El Paso Elec. Co., 1999-NMSC-029, ¶ 13,127 N.M.
729, 987 P.2d 386, overruled on other grounds by Herrera v. Quality Pontiac, 2003-
NMSC-018, ¶ 33, 134 N.M. 43, 73 P.3d 181. 	However, independent intervening
cause may still apply in cases where there are intentional or criminal acts or forces of
nature that are unforeseeable. In this case, we conclude that the evidence gave rise to
reasonable inferences that Decedent’s acts of overdosing on antidepressants and
committing suicide may have been intentional rather than negligent and that these acts
may have been unforeseeable. 	This evidence could theoretically lead a properly
instructed jury to conclude that these intentional acts constituted an independent
intervening cause that interrupted and negated any negligence by Dr. Lopez-Colberg
in prescribing the drug to Decedent. We therefore hold that the district court erred by
failing to instruct the jury on Decedent’s suicide as an independent intervening cause.
It was for the jury, not the district court, to determine whether Decedent’s suicide was
intentional and foreseeable to Dr. Lopez-Colberg. We therefore reverse and remand.
{3} 	On the second issue, which we address in the event it arises on remand, we hold
that Plaintiffs failed to show the degree of mutual dependence required to support
their loss of consortium claims.

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I. 	BACKGROUND
{4} 	This wrongful death case is based on the alleged negligent treatment of
Decedent by Defendants. As stated above, the theory of Plaintiffs’ case was that Dr.
Lopez-Colberg gave Decedent a twelve-month prescription for paroxetine (Paxil),
which allegedly “causes suicidality,” and failed to follow up or monitor Decedent. As
a result, Plaintiffs claimed, Decedent “engaged in a self-mutilation suicide.” 	The
evidence presented to the jury at trial included the following.
{5} 	In May 2004, Dr. Lopez-Colberg began treating Decedent and diagnosed her
with anxiety. 	Dr. Lopez-Colberg prescribed Paxil, a selective serotonin re-uptake
inhibitor, commonly used to treat depression and anxiety, at ten milligrams per day.
During the next seven months, Dr. Lopez-Colberg saw Decedent four times to address
persistent symptoms, and she adjusted her Paxil dosage to twenty milligrams. 	In
November 2004, Decedent changed insurance carriers and began treatment with
another physician.
{6} 	In October 2005, Decedent returned to Dr. Lopez-Colberg’s care. When she
returned to care, Decedent was taking twenty milligrams of Paxil a day, plus Ativan
for breakthrough anxiety. 	Dr. Lopez-Colberg noted that Decedent had “serotonin
syndrome,” which she clarified meant that Decedent was experiencing serotonin
withdrawal when she forgot to take her Paxil. 	Dr. Lopez-Colberg also noted that

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Decedent was experiencing many psychosocial stressors, which Decedent declined to
detail. 	Decedent’s use of Ativan indicated to Dr. Lopez-Colberg that Decedent’s
anxiety was not under control, and Dr. Lopez-Colberg wanted to increase the Paxil
dosage. Dr. Lopez-Colberg wrote Decedent two prescriptions: one month’s worth of
Ativan and one year’s worth of Paxil (one month’s worth with eleven authorized
refills). At this point, Decedent had been on twenty milligrams of Paxil for seventeen
months. After Dr. Lopez-Colberg prescribed the medication, there were no follow-up
appointments scheduled, although Decedent was to return “when she fe[lt] that she
would like to increase the Paxil.”
{7} 	According to a June 2005 FDA advisory, “[s]everal recent publications suggest
the possibility of increased risk for suicidal behavior in adults being treated with
antidepressants.” However, Dr. Lopez-Colberg’s patient notes for Decedent’s visits
did not indicate that Decedent had any thoughts of suicide.
{8} 	Decedent’s friends and family reported that Decedent began exhibiting very
strange behavior in April 2006, which was over five months after Decedent’s last visit
with Dr. Lopez-Colberg. 	On April 13, 2006, Decedent was found dead in her
apartment, having taken her own life. Toxicology analysis determined that Decedent
had twenty-two times the therapeutic dose of Paxil in her system at the time of her

5
death. It was determined that she had obtained thirty Paxil tablets three days prior to
her death, and there were no pills left in that thirty-day prescription.
{9} 	Decedent’s parents filed suit asserting negligence and wrongful death claims
against Defendants. 	Decedent’s parents and two surviving siblings also asserted
claims for loss of consortium. Plaintiffs’ claims against Defendants were tried to a
jury, and Defendants argued that the jury should be instructed on their theory that
Decedent’s suicide constituted an independent intervening cause that absolved them
of liability. The district court refused the requested instructions, and the jury returned
a verdict for Plaintiffs.
{10} 	On appeal, Defendants argue that the district court erroneously refused to
instruct the jury on their theory that Decedent’s suicide was an independent
intervening cause. They also argue that the district court erred in denying their motion
for directed verdict on Plaintiffs’ claims for loss of consortium. 	We address each
contention in turn.
II. 	DISCUSSION
A. 	Independent Intervening Cause Instruction
{11} 	Defendants argued below and on appeal that Decedent’s death resulted from the
intentional and unforeseeable act of suicide and, therefore, that the suicide was an
independent intervening cause that released them from all liability. As we explain, we

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agree with Defendant that the jury should have received instruction on this defense
theory.
{12} 	In the district court, Defendants tendered three jury instructions relevant to this
theory. 	The first requested instruction was based on UJI 13-305 NMRA, the
definition of causation, which included the optional language relevant to independent
intervening cause (italicized below):
An act or omission is a “cause” of injury if unbroken by an independent
intervening cause, it contributes to bringing about the injury and if the
injury would not have occurred without it. 	It need not be the only
explanation for the injury, nor the reason that is nearest in time or place.
It is sufficient if it occurs in combination with some other cause to
produce the result. To be a “cause[,”] the act or omission, nonetheless,
must be reasonably connected as a significant link to the injury.
(Emphasis added.) Second, Defendants requested an instruction based on UJI 13-306
NMRA, 	the 	definition 	of 	independent 	intervening 	cause: 	“An 	independent
intervening cause interrupts and turns aside a course of events and produces that
which was not foreseeable as a result of an earlier act or omission.” 	Third,
Defendants tendered an instruction based on Johnstone v. City of Albuquerque, 2006-
NMCA-119, ¶¶ 10-11, 140 N.M. 596, 145 P.3d 76, which holds that suicide is
generally an independent intervening cause unless one of two exceptions is satisfied.
The district court refused to instruct the jury on independent intervening cause,
stating, “I really don’t see that these facts fit.”

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1. 	Standard of Review
{13} 	We review a district court’s refusal to give a proffered instruction de novo to
determine whether the instruction correctly stated the law and was supported by the
evidence presented at trial. See Benavidez v. City of Gallup, 2007-NMSC-026, ¶ 19,
141 N.M. 808, 161 P.3d 853. A party is entitled to have the jury instructed on the
party’s theory if there is substantial evidence to support it. City of Belen v. Harrell,
1979-NMSC-081, ¶ 14, 93 N.M. 601, 603 P.2d 711. 	In determining whether the
district court erroneously denied Defendants’ requested instructions, we first review
the law relevant to the theory of independent intervening cause.
2. 	Torres and Chamberland v. Roswell Osteopathic Clinic, Inc., 2001-NMCA-
045, 130 N.M. 532, 27 P.3d 1019: A Plaintiff’s Negligence or the Absence
of a Defendant’s Causation in Fact Cannot Support an Independent
Intervening Cause Defense
{14} 	Our appellate courts have recently virtually eliminated the use of the doctrine
of independent intervening cause as a defense in cases involving only allegedly
negligent (as opposed to intentional) conduct by the parties because the doctrine is
incompatible with our system of comparative negligence. See Torres, 1999-NMSC-
029, ¶ 18 (holding that “the jury shall not be instructed on independent intervening
cause for a plaintiff’s alleged comparative negligence”); Chamberland, 2001-NMCA-
045, ¶ 19 (holding that a jury instruction on the doctrine is inappropriate where the
issues involve “no more than a simple dispute over causation in fact (i.e., whether the

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defendant’s negligence did or did not cause in fact the injuries suffered by the
plaintiff)”). 	As explained in UJI 13-306, “[a]n independent intervening cause
interrupts and turns aside a course of events and produces that which was not
foreseeable as a result of an earlier act or omission.” Torres and Chamberland explain
that in cases involving only negligent conduct, the question is strictly one of
causation, i.e., whose negligent conduct, separately or in combination, caused the
plaintiff’s injury. Consequently, instructing the jury on independent intervening cause
in such cases overemphasizes the negligence of parties other than the defendants. See
Torres, 1999-NMSC-029, ¶ 18 (explaining that an instruction that a plaintiff’s
negligence could constitute an independent intervening cause “unduly emphasize[s]
a defendant’s attempt to shift fault to a plaintiff”). In the case before us, the district
court relied on Torres in refusing to instruct the jury on the doctrine.
{15} 	The circumstances in Torres demonstrate why it is inappropriate to base the
defense of independent intervening cause on the plaintiff’s negligence. In that case,
the plaintiff was electrocuted when he touched a metal rod to a high voltage conductor
while installing a roof for his employer. Id. ¶ 4. He sued the electric co-op that had
installed and maintained the conductor. Id. ¶ 5. The co-op claimed that, even if it had
been negligent, the negligence of the plaintiff and others superseded its negligence.
Id. ¶ 8. On appeal from a jury verdict in favor of the co-op, our Supreme Court held

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that instructing the jury on the co-op’s defense of independent intervening cause was
reversible error. Id. ¶ 2. The Court reasoned that, in a case where a defendant argues
that the plaintiff’s negligence was an independent intervening cause, the jury
instruction on causation alone will suffice because an instruction on independent
intervening cause “unduly emphasize[s] a defendant’s attempt to shift fault to a
plaintiff.” Id. ¶ 18. “[T]his undue emphasis creates an unacceptable risk that the jury
will inadvertently apply the common law rule of contributory negligence[.]” Id. The
Court concluded that “the jury shall not be instructed on independent intervening
cause for a plaintiff’s alleged comparative negligence.” 	Id. 	Notably, however, the
Court cautioned that its analysis “does not extend to intentional tortious or criminal
acts or forces of nature.” Id. ¶ 15 n.2 (emphasis added).
{16} 	Two years after Torres was decided, this Court in Chamberland further refined
the role played by the doctrine of independent intervening cause in cases involving
only negligent conduct and “plain vanilla” causation. 	The issue in Chamberland
involved whether the defendants’ conduct was or was not the cause in fact of the
plaintiff’s injury. 	The plaintiff sued two doctors and their clinic for failing to
diagnose his appendicitis before his appendix ruptured and caused an abscess. 2001-
NMCA-045, ¶¶ 2-5. The defendants argued that the plaintiff’s appendicitis was an
independent intervening cause “that arose independently of the care provided by [the

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d]efendants” because the plaintiff did not present with any of the classic symptoms
of appendicitis until after the defendants had examined him. Id. ¶ 12. In other words,
they maintained that the plaintiff did not have appendicitis when they examined him
but only developed it sometime after their examination. On appeal from a defense
verdict, we reversed on the ground that it was error to instruct the jury on independent
intervening cause. Id. ¶ 1. Although there was no issue of comparative negligence,
as there was in Torres, there was “the potential for juror confusion over independent
intervening cause,” Chamberland, 2001-NMCA-045, ¶ 16, because the issues
involved “no more than a simple dispute over causation in fact (i.e., whether the
defendant’s negligence did or did not cause in fact the injuries suffered by the
plaintiff).” 	Id. ¶ 19. 	Thus, “the issue for the jury [was] causation alone, not
independent intervening cause.” Id.
{17} 	Despite the limitations imposed in Torres and Chamberland, both cases
anticipated that there could be factual circumstances where the doctrine would be
relevant and applicable. As we have already noted, Torres carved out an exception
to its limitation on the applicability of independent intervening cause, stating that the
limitation “does not extend to intentional tortious or criminal acts or forces of nature.”
1999-NMSC-029, ¶ 15 n.2. Similarly, this Court in Chamberland shed light on the
circumstances in which the doctrine could be applicable. In that case, we explained

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the rationale behind the doctrine, which is that under some circumstances where “a
force of nature, an intentional tort, or a criminal act” follows the defendant’s negligent
act, 2001-NMCA-045, ¶ 18, the potential scope of the defendant’s liability must be
limited by the remoteness or unforeseeability of the intervening force. Id. ¶ 17. The
instruction on independent intervening cause “is based on a policy determination that
[the defendant’s] liability should cease at the point where an independent cause [i.e.,
a force of nature or an intentional or criminal act] intercepts and interrupts the normal
progression of causation, because it produces an injury that . . . was not foreseeable
as a result of an earlier act or omission.” 	Id. (internal quotation marks and citation
omitted).
{18} 	We distill three primary lessons from Torres and Chamberland. First, if the
defendant is claiming only that the plaintiff’s negligence caused the plaintiff’s injury,
it is reversible error to instruct the jury on independent intervening cause because the
issues involve comparative negligence. Second, even if there is no issue involving
comparative negligence but the issue revolves only around whether the defendant’s
negligence was the cause in fact of the plaintiff’s injury, then it is error to give an
instruction on independent intervening cause. Third, an instruction on independent
intervening cause may be appropriate if the issue involves a claim that an intentional
or criminal act or an act of nature that is unforeseeable intervenes and disrupts the

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chain of causation set in motion by a defendant’s negligent conduct. We conclude that
the third concept applies in the present case, as illustrated by the two New Mexico
cases that have addressed suicide as an independent intervening cause.
3. 	Suicide as an Independent Intervening Cause
{19} 	The first case addressing suicide as an independent intervening cause is Harrell,
1979-NMSC-081, ¶ 14, which was decided before Torres. In that case, the decedent,
a minor, was arrested and taken to jail, where he told his mother that he would kill
himself before he would let himself be taken to the penitentiary. 	Harrell, 1979-
NMSC-081, ¶¶ 5-6. After the mother told a jail official about her son’s threat, the
decedent hanged himself in his cell. 	Id. ¶¶ 6-7, 11. 	The mother sued the city,
asserting that it was responsible for jail officials’ failure to prevent the suicide. Id. ¶
1. On appeal from judgment in the mother’s favor, our Supreme Court held that it was
error for the district court to refuse to instruct the jury on independent intervening
cause. Id. ¶ 20. The Court explained that, while “it cannot be said that in every case
suicide is an independent intervening cause as a matter of law[,] . . . independent
intervening cause [is a] question[] for the jury, unless, as a matter of law, there is no
evidence upon which to submit the issue to the jury.” Id. ¶¶ 18, 19.
{20} 	The 	second 	relevant 	case 	involving 	suicide—decided 	after 	Torres—is
Johnstone, upon which Defendants in the present case based one of their requested

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jury instructions. In Johnstone, the defendant’s minor stepdaughter used his gun to
kill herself, and her estate sued him for his alleged negligence in leaving the gun
unattended. 2006-NMCA-119, ¶ 1. We affirmed summary judgment in favor of the
defendant. 	Id. 	In our analysis, we relied on Harrell to observe that “[g]enerally,
suicide is an independent intervening cause of death that is not foreseeable and
absolves a defendant of civil liability unless, as a matter of law, there is no evidence
upon which to submit the issue to the jury.” 	Johnstone, 2006-NMCA-119, ¶ 10
(internal quotation marks and citation omitted).
{21} 	However, Johnstone noted two exceptions to the general proposition that
suicide is an independent intervening cause:
The first exception allows liability where the actor’s tortious conduct
induces a mental illness in the decedent from which the death results.
The second is a duty that results from a special relationship between the
decedent and the defendant, that presumes or includes knowledge of the
decedent’s risk of suicide.
Id. ¶ 11 (citation omitted). 	In other words, these exceptions can make suicide
foreseeable. The special relationship contemplated by the second exception “typically
involve[s a] treatment relationship[], such as mental health professionals and their
patients, and persons having direct custody and control over the decedent.” Id. ¶ 14.
Because there was no such relationship in Johnstone and because the defendant had
no reason to suspect the decedent’s intention to commit suicide, the suicide was

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unforeseeable as a matter of law, and summary judgment was appropriate. Id. ¶¶ 13-
14.
{22} 	Considering Harrell and Johnstone in the context of Torres and Chamberland,
we extrapolate two principles applicable in the present case. First, generally speaking,
suicide is an intentional act that is unforeseeable. 	See, e.g., Solarzano v. Bristow,
2004-NMCA-136, ¶ 14, 136 N.M. 658, 103 P.3d 582 (defining suicide as “a
voluntary, deliberate, and intentional self-destruction by someone of sound mind”).
Thus, if the subject injury in a case is a suicide, that circumstance “gives rise to an
instruction on independent intervening cause which is an affirmative defense that
releases the defendant of all liability.” 	Chamberland, 2001-NMCA-045, ¶ 18.
Second, evidence of one of the two exceptions stated in Johnstone can transform
suicide into a foreseeable event. In other words, if the plaintiff can persuade the jury
either (1) that the defendant induced the decedent’s mental illness that resulted in the
suicide or (2) that the defendant and the decedent were in a special relationship that
included knowledge of the decedent’s risk of suicide, then the plaintiff has established
foreseeability, and the defense of independent intervening cause fails. The touchstone
of the defense’s success or failure is whether the suicide was foreseeable, a question
the jury must decide if the evidence of foreseeability is conflicting.
4. 	The Present Case in Context

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{23} 	The case before us presents an amalgam of legal theories reflecting the
teachings of both the Torres/Chamberland cases and the Harrell/Johnstone cases.
This is because, in addition to raising the defense of independent intervening cause
based on Decedent’s intentional acts, Defendants also raised a defense related to
Decedent’s negligence. In order to explain the distinction between these defenses, we
use the “progression of causation” model discussed in Chamberland. 2001-NMCA-
045, ¶ 17. Starting with Plaintiffs’ basic theory that Dr. Lopez-Colberg was negligent
in prescribing twelve months’ worth of Paxil to Decedent without requiring follow-up
appointments, this allegedly negligent act started the chain of causation. Along this
continuum of causation, Defendants argued that Decedent was negligent in failing to
schedule a follow-up appointment with Dr. Lopez-Colberg when she began to exhibit
strange behavior in April 2006 and that this negligence contributed to cause the
ultimate suicide. Had this evidence, directed at the parties’ comparative fault, been
the only evidence presented at trial in Defendants’ defense, the principles of Torres
and Chamberland would clearly apply and preclude a jury instruction on independent
intervening cause because the evidence would have presented only an issue of
comparative negligence. See Torres, 1999-NMSC-029, ¶ 18 (“[T]he jury shall not be
instructed on independent intervening cause for a plaintiff’s alleged comparative
negligence.”).

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{24} 	But 	Defendants 	also 	presented 	evidence 	that 	Decedent’s 	conduct 	was
intentional and unforeseeable. This evidence supported the defense of independent
intervening cause, a defense that, if established, would interrupt and turn aside the
progression of causation and eliminate Defendants’ liability for Dr. Lopez-Colberg’s
acts of negligence. This included evidence giving rise to inferences that (1) Decedent
intentionally overdosed on Paxil in the days before her death, which induced the
psychotic state that caused her to commit suicide; and (2) Decedent’s intentional
actions were not foreseeable to Dr. Lopez-Colberg under the Johnstone exceptions.
We review this evidence below.
{25} 	Regarding Decedent’s intentional acts, there was evidence before the district
court suggesting that, in the three days before her death, Decedent had ingested an
entire thirty-day supply of Paxil and that this overdose induced psychosis. In the days
before she died and about five months after her last visit with Dr. Lopez-Colberg,
Decedent “was behaving psychotically,” according to one of Plaintiffs’ experts. The
expert based his assessment on the testimony of people close to Decedent, including
the testimony of Decedent’s co-worker and friend that two days before she died,
Decedent woke the co-worker and her husband very early in the morning by
screaming and pounding on their window. Prior to this incident, the co-worker had
not been concerned that Decedent was depressed or worried that Decedent might hurt

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herself. 	Decedent’s family, who had frequent contact with her, did not think that
Decedent was suicidal prior to her death. But two days before she died, Decedent
called her sister and sounded “weird” and “not like herself.” About the same time,
Decedent visited her parents’ home and told them that she felt funny but that she had
a “little pill” that she was going to take and that she would feel better.
{26} 	A day or two after this visit, Decedent’s family became concerned because they
had not spoken to her for a couple of days. Decedent’s cousin went to her apartment
to check on her and found her body. Decedent had cut her arms, legs, and throat and
had slowly bled to death. 	Decedent was found to have “[twenty-two] times the
therapeutic dose of Paxil when she had her toxicology report at death.” 	She had
obtained a thirty-day refill of Paxil three days before her death, and there were no pills
left in that prescription. In the opinion of Plaintiffs’ expert, Dr. Ronald Maris, Paxil
contributed to the psychosis Decedent was experiencing just before she died, and she
had a “near fatal dose of antidepressants in her body.”
{27} 	This evidence supported the view that Decedent’s overdose and suicide were
intentional. Therefore, an instruction on independent intervening cause would only
be improper if Decedent’s intentional acts were foreseeable to Dr. Lopez-Colberg as
a matter of law. 	See Johnstone, 2006-NMCA-119, ¶ 10 (“Generally, suicide is an
independent intervening cause of death that is not foreseeable and absolves a

1While we focus on the special relationship exception in this Opinion, we do not
foreclose the possibility that Plaintiffs may introduce evidence of the other Johnstone
exception of “induced mental illness” on retrial.
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defendant of civil liability unless, as a matter of law, there is no evidence upon which
to submit the issue to the jury.” (internal quotation marks and citation omitted));
Harrell, 1979-NMSC-081, ¶ 19 (“[I]ndependent intervening cause [is a] question[]
for the jury, unless, as a matter of law, there is no evidence upon which to submit the
issue to the jury.”). Foreseeability is generally a fact question for the jury. See Davis
v. Bd. of Cnty. Comm’rs, 1999-NMCA-110, ¶ 21, 127 N.M. 785, 987 P.2d 1172
(noting, in a case involving negligent misrepresentation, that the question of
foreseeability is for the jury to decide).
{28} 	Foreseeability can be established through evidence of one of the two exceptions
noted in Johnstone, including the “special relationship” exception that was the focus
of the jury instruction conference in the district court. 1 One element of the special
relationship exception is “knowledge of the decedent’s risk of suicide.” Johnstone,
2006-NMCA-119, ¶ 11.
{29} 	In this case, there appears to be no dispute that there was a special relationship
between Decedent and Dr. Lopez-Colberg. 	However, on Dr. Lopez-Colberg’s
knowledge of Decedent’s risk of suicide, the evidence was conflicting. On the one
hand, some of the evidence presented gave rise to the inference that Dr. Lopez-

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Colberg could have foreseen Decedent’s overdose and suicide. Dr. Maris testified that
Paxil is associated with increased suicidality, i.e., suicidal ideas, preparations,
attempts, and completions. He stated that the FDA recommends monitoring a patient
closely for suicidal behavior when a physician prescribes Paxil. 	Plaintiffs’ other
expert witness, Dr. Edward Carrington, testified that suicide is a great concern and
needs to be addressed with patients who are being treated for anxiety, panic disorder,
or depression. He opined that if Dr. Lopez-Colberg had appropriately followed up
with Decedent’s care, she may have caught one or more of the behavioral predictors
of suicide.
{30} 	On the other hand, some of the evidence created the inference that Decedent’s
conduct was unforeseeable. Dr. Maris testified that Decedent had very few suicide
risk factors before she started taking Paxil and that “[i]ndividual suicides are very
difficult to predict” and cannot be predicted reliably. 	He stated that an adverse
reaction to Paxil is a “paradoxical rare reaction.” Dr. Carrington testified that, as of
Decedent’s last visit with Dr. Lopez-Colberg in October 2005, Decedent had been on
Paxil for seventeen months straight, and this does not fit into the subset of patients
who are at risk for suicidality. 	He further opined that the fact that Decedent was
taking Paxil as of October 2005 should not, in and of itself, have caused Dr. Lopez-
Colberg to conclude that Decedent was at risk for suicide.

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{31} 	Defendants’ expert, Dr. Thomas Gross, testified that, as of October 2005, there
was really no reason for Dr. Lopez-Colberg to have concern about continuing Paxil,
which Decedent had already been taking for a long time. He also testified that there
was nothing in Dr. Lopez-Colberg’s records that would indicate that Decedent was
depressed or at risk for suicide, and he opined that Dr. Lopez-Colberg could not have
anticipated that Decedent was going to commit suicide.
{32} 	This conflicting evidence created a fact question for the jury to decide. Our
courts trust juries to decide fact questions if they are appropriately guided by
instructions from the district court. In this case, the evidence raised issues about (1)
whether 	Decedent’s 	conduct 	in 	overdosing 	was 	intentional 	and 	(2) 	whether
Decedent’s suicide was foreseeable to Dr. Lopez-Colberg. 	But the jury had no
instruction telling it that it could determine these questions. And it had no guidance
as to what the result would be if it found that the Decedent’s conduct was intentional
and unforeseeable.
{33} 	Defendants 	presented 	evidence 	supporting 	their 	theory 	that 	Decedent’s
intentional acts were unforeseeable, and this evidence took this case outside the
limitations imposed by Torres and Chamberland. 	As a result, Defendants were
entitled to an instruction on their theory that Decedent’s intentional overdose of Paxil
and ensuing suicide “interrupt[ed] and turn[ed] aside” the chain of causation initiated

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by Dr. Lopez-Colberg’s alleged negligence—her prescribing a year’s worth of Paxil
without 	requiring 	follow-up 	visits—and 	produced 	her 	death, 	which 	was 	an
unforeseeable result of Dr. Lopez-Colberg’s negligence. 	UJI 13-306; see Harrell,
1979-NMSC-081, ¶ 14 (“A party is entitled to a jury instruction upon his theory of a
case if it is supported by substantial evidence.”). Because the district court refused to
instruct on this theory, we reverse. At any retrial, the district court will instruct the
jury on the defense of independent intervening cause, and the parties will have the
opportunity to argue the issue of foreseeability to the jury.
B. 	Loss of Consortium - Directed Verdict
{34} 	Although we reverse the judgment in favor of Plaintiffs as discussed above,
nonetheless, because the issue may arise on remand, we also address Defendants’
argument regarding the judgment awarding Plaintiffs damages on their claims for loss
of consortium.
{35} 	Plaintiffs asserted claims for loss of consortium and presented evidence
regarding the closeness of their relationships with Decedent. 	At the close of
Plaintiffs’ case, Defendants moved for a directed verdict, arguing that Plaintiffs had
failed to show the degree of mutual dependence required to support their loss of
consortium claims. 	The district court denied the motion and instructed the jury
regarding the factors relevant to loss of consortium.

22
1. 	Standard of Review
{36} 	A district court’s decision on a motion for directed verdict is reviewed de novo.
McNeill v. Burlington Res. Oil & Gas Co., 2008-NMSC-022, ¶ 36, 143 N.M. 740, 182
P.3d 121. 	A directed verdict is a drastic measure that is generally disfavored. 	A
district court should not grant a motion for directed verdict unless it is clear that “the
facts and inferences are so strongly and overwhelmingly in favor of the moving party
that the judge believes that reasonable people could not arrive at a contrary result.”
Melnick v. State Farm Mut. Auto. Ins. Co., 1988-NMSC-012, ¶ 11, 106 N.M 726, 749
P.2d 1105. Upon review of the district court’s denial of a directed verdict, we view
all of the evidence in favor of Plaintiffs, and resolve conflicts in the evidence and
include all reasonable interpretations of the evidence in favor of Plaintiffs. 	See
Sunwest Bank of Clovis, N.A. v. Garrett, 1992-NMSC-002, ¶ 9, 113 N.M. 112, 823
P.2d 912.
2. 	Elements of a Loss of Consortium Claim
{37} 	To establish a loss of consortium claim, Plaintiffs were required to demonstrate
two elements: (1) that they had a “sufficiently close relationship” with Decedent, and
(2) that Defendants owed them a duty of care. Wachocki v. Bernalillo Cnty. Sheriff’s
Dep’t, 2011-NMSC-039, ¶ 5, 150 N.M. 650, 265 P.3d 701. 	Defendants do not

23
challenge the second element. 	The factors to be considered when determining
whether Plaintiffs shared a sufficiently close relationship with Decedent include:
the duration of the relationship, the degree of mutual dependence, the
extent of common contributions to a life together, the extent and quality
of shared experience, and . . . whether the plaintiff and the injured person
were members of the same household, their emotional reliance on each
other, the particulars of their day[-]to[-]day relationship, and the manner
in which they related to each other in attending to life’s mundane
requirements.
Id. (omission in original) (internal quotation marks and citations omitted); see
Fitzjerrell v. City of Gallup ex rel. Gallup Police Dep’t, 2003-NMCA-125, ¶ 12, 134
N.M. 492, 79 P.3d 836 (listing “mutual dependence” factors, including “common
contributions to a life together; shared experience; living in the same household;
financial support and dependence; emotional reliance on each other; . . . and the
manner in which they related to each other in attending to life’s mundane
requirements”).
{38} 	While acknowledging the factors to be considered in order to show a
“sufficiently close relationship,” the Supreme Court determined that “mutual
dependence” is the key element to be applied to relationships of all types. Wachocki,
2011-NMSC-039, ¶¶ 9, 10, 12. 	In reaching this conclusion, the Court pointed to
examples of cases involving “mutual dependence” in which “the parties relied on the
relationship and could not enjoy life in the same way once the relationship was

24
severed.” 	Id. ¶¶ 10, 11 (describing a case in which unmarried co-habitants made a
long-term commitment to each other, ran a household jointly, and made life decisions
together, and a case in which a grandparent acted as a grandchild’s caretaker).
{39} 	Wachocki involved two brothers who had shared a bedroom as children and an
apartment for eight months prior to the death of the older brother. 	Id. ¶ 2. 	The
brothers had been sharing the costs of rent, utilities, and groceries and had shared
responsibilities for cooking and cleaning. Id. The brothers were close, spending free
time together socializing, playing basketball, going to the movies, and going to the
racetrack. Id. The younger brother “considered his older brother his role model and
best friend” and relied on his brother “for advice and emotional support.” 	Id. 	The
Supreme Court held that this evidence was insufficient to “demonstrate a sufficiently
close relationship” and that there was no right to recover damages for loss of
consortium. Id. ¶ 13.
{40} 	Based on the holding in Wachocki, we examine separately the relationships
between Decedent and her parents and between Decedent and her siblings.
3. 	Decedent’s Relationship With Her Parents
{41} 	Plaintiffs presented evidence that Decedent’s relationship with her parents was
extremely close, that Decedent had breakfast with her father twice a week, and that
she kept a bedroom at her parents’ house and stayed there every weekend. Plaintiffs

25
also presented evidence that Decedent’s family was very tight-knit, that when
Decedent had free time she spent it with her parents, and that Decedent was loving and
protective of her parents.
{42} 	This evidence is not sufficient to demonstrate the most important factor under
Wachocki, that the relationship between Decedent and her parents was based on
“mutual dependence.” Although Decedent may have spent time at the home of her
parents, she was not a member of her parents’ household. Decedent was not involved
in her parents’ day-to-day decisions or fulfillment of everyday requirements. Decedent
was provided with significant support from her parents as well as the enjoyment of
frequent meals and visits, but those things do not qualify as mutual dependence.
Therefore, the degree of mutual dependence, if any, was not sufficient to meet the test
established by the Supreme Court in Wachocki.

26
4. 	Decedent’s Relationship With Her Siblings
{43} 	Plaintiffs presented evidence that Decedent and her sister were the best of
friends, that they spoke almost daily, worked out together often, and that they would
stay together at their parents’ house on the weekends. 	There was evidence that
Decedent’s relationship with her brother was also very close, that they shared an
interest in bicycling, and that they had lived close to one another as adults. Again, the
evidence presented by Plaintiffs is not sufficient to show that her relationship with
either her brother or her sister was based on “mutual dependence.” Decedent and her
siblings were not members of the same household, and they were not together
involved in day-to-day decisions. The evidence does not establish that Decedent had
a “mutually dependent” relationship with either her sister or her brother.
{44} 	There is no question that losing a family member can be emotionally difficult,
no matter the circumstances, but the courts must take care not to throw the doors open
to “broad liability based essentially exclusively on [a] familial relationship rather than
other qualities exemplified by the ‘mutual dependence’ factors.” 	Wachocki v.
Bernalillo Cnty. Sheriff’s Dep’t, 2010-NMCA-021, ¶ 57, 147 N.M. 720, 228 P.3d 504.
Viewing the evidence in the light most favorable to Plaintiffs, we conclude that,
because the evidence was insufficient to establish a right to recover for loss of
consortium, it was error for the district court to deny Defendants’ motion for directed

27
verdict on this issue. 	See Sunwest Bank, 1992-NMSC-002, ¶ 9 (noting a directed
verdict is appropriate only when there are no true issues of fact for the jury).
III. 	CONCLUSION
{45} 	For the foregoing reasons, we reverse and remand this case to the district court
for a new trial.
{46} 	IT IS SO ORDERED.
______________________________
CYNTHIA A. FRY, Judge
I CONCUR:
___________________________________
RODERICK T. KENNEDY, Chief Judge
M. MONICA ZAMORA (dissenting).

28
ZAMORA, Judge (concurring in part and dissenting in part).	1
{47} 	I concur with the Majority that the district court erred in denying Defendants’	2
motion for directed verdict on the issue of loss of consortium and directed verdict	3
issues. I also agree with the Majority’s analysis of the applicable independent	4
intervening cause case law. The application of our jurisprudence on the doctrine of	5
independent intervening cause to this case has been a difficult task. However, I am not	6
persuaded that the independent intervening cause instruction is appropriate here. I am	7
concerned that by allowing the instruction, we are realizing the concerns of the Torres	8
court by unduly over-emphasizing the Defendants’ attempt to shift fault to the	9
Decedent. For this reason, I respectfully dissent.	10
Decedent’s Suicide Was the Direct Result of Defendants’ Negligence	11
{48} 	Decedent’s act of suicide was a foreseeable risk created by Defendants’	12
negligence. In the context of negligence, an “intervening cause” is “[a]n event that	13
comes between the initial event in a sequence and the end result, thereby altering the	14
natural course of events that might have connected a wrongful act to an injury.”	15
Black’s Law Dictionary 250 (9th ed. 2009). “An independent intervening cause is one	16
that operates on a condition produced by an antecedent cause but in no way resulted	17
from that cause.” Id. (emphasis in original omitted). Independent intervening cause	18
constitutes a complete defense. Torres, 1999-NMSC-029, ¶ 19. In this case, the	19
sequence of events began with Dr. Lopez-Colberg, aware of the manufacturer’s	20

29
warning, prescribing a year’s worth of Paxil for Decedent without ensuring	1
arrangements for follow up with Decedent or to monitor Decedent’s mental health,	2
and ended with Decedent’s suicide. Decedent’s suicide was the direct result of Dr.	3
Lopez-Colberg’s negligence. Because the suicide was the final event in the chain of	4
causation, not an unrelated, outside force that came in and interrupted the sequence	5
of events, it cannot be an independent intervening cause.	6
Negligence Analysis Negates The Doctrine	7
{49} 	The special verdict reveals the jury considered the issues of duty, foreseeability,	8
proximate cause and cause in fact of decedent’s death, and plaintiff’s and defendant’s	9
comparative negligence guided by the tendered jury instructions. The evidence	10
demonstrated that this case presented a dispute over causation, an issue of fact the jury	11
decided. See Calkins v. Cox Estates, 1990-NMSC-044, ¶ 5, 110 N.M. 59, 792 P.2d 36	12
(noting causation is a question of fact). “In New Mexico, negligence encompasses the	13
concepts of foreseeability of harm to the person injured and of a duty of care toward	14
that person.” Ramirez v. Armstrong, 1983-NMSC-104, ¶ 8,100 N.M. 538, 673 P.2d	15
822, overruled on other grounds by Folz v. State, 1990-NMSC-075, ¶ 3, 110 N.M.	16
457, 797 P.2d 2460; see also UJI 13-1601 Committee commentary (noting the	17
definition 	of 	negligence 	instruction 	“includes 	the 	indispensable 	element 	of	18
foreseeability which is discussed in Ramirez”). “Foreseeability is a critical and	19
essential component of New Mexico’s duty analysis because no one is bound to guard	20

30
against or take measures to avert that which [she] would not reasonably anticipate as	1
likely to happen. [T]here can be no duty in relation to another person absent	2
foreseeability[.]” 	Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 20 (second	3
alteration in original) (internal quotation marks and citations omitted).	4
{50} 	The three significant jury instructions tendered to the jury were UJI 13-	5
1601Negligence; definition; UJI 13-1603 Ordinary care; and UJI 13-305 Causation.	6
UJI 13-1601 states in pertinent part:	7
An act, to be ‘negligence[,’] must be one which a reasonably	8
prudent person would foresee as involving an unreasonable risk of injury	9
to . . . herself or to another and which such a person, in the exercise of	10
ordinary care, would not do.	11
A failure to act, to be ‘negligence[,’] must be a failure to do an act	12
which one is under a duty to do and which a reasonably prudent person,	13
in the exercise of ordinary care, would do in order to prevent injury to .	14
. . herself or to another.	15
(Alterations omitted). If Decedent’s suicide was not a foreseeable result, then the jury	16
had the option to find the treatment did not cause the suicide and, as a result, not	17
assign any liability to Defendants. UJI 13-1603 states in pertinent part: “As the risk	18
of danger that should reasonably be foreseen increases, the amount of care required	19
also increases.” This instruction allowed the jury to consider whether Defendant	20
Lopez-Colberg breached her duty by prescribing the medication for an extended	21
period of time without follow up and knowing the potential for increase in suicidiality.	22
UJI 13-305 states in pertinent part: “An act or omission is a ‘cause’ of injury if it	23

31
contributes to bringing about the injury, and if injury would not have occurred without	1
it.” The jury was able to consider whether the suicide was a result of the undisclosed	2
risk and lack of follow up care by her doctor, or whether Decedent in a psychotic state	3
or of her own free will took her own life.	4
{51} 	Foreseeability was an issue considered by the jury in connection with both	5
causation and standard of care. This consideration involved a resolution of the	6
conflicting evidence presented by the parties. Consequently, giving an instruction on	7
independent intervening cause unduly emphasizes the Defendants’ shift of fault to the	8
Decedent by giving Defendants multiple opportunities to shift or avoid liability. The	9
jury necessarily found that Decedent’s act of suicide was a foreseeable consequence	10
of Defendants’ negligence by imposing some liability on Defendants. The jury also	11
considered Decedent’s comparative negligence by assigning her liability as well.	12
{52} 	The “special relationship” exception to suicide as an independent intervening	13
cause applies to cases like this. Johnstone, 2006-NMCA-119, ¶¶ 10-11. There was a	14
treatment relationship between Decedent and Dr. Lopez-Colberg in which the doctor	15
knew or had reason to know of Decedent’s risk of suicide. There was also evidence	16
presented for the jury to consider and decide whether the Defendants’ tortious conduct	17
induced Decedent’s mental instability directly causing the suicide.	18
Independent Intervening Cause Doctrine Is Not Applicable In This Case	19

2Notably, Chamberland states the independent intervening cause presupposes
the Defendant’s negligence and is in direct conflict with the Restatement (Second) of
Torts, § 440 cmt. b. (1965) (“[T]here is no need of determining whether the actor’s
antecedent conduct was or was not a substantial factor in bringing about the harm.”).
See Chamberland, 2001-NMCA 045, ¶ 19.
32
{53} 	Decedent’s suicide was the end result in the sequence of events and the question	1
before the jury was one of causation. The independent intervening cause doctrine has	2
no place in the analysis. In my view, the first two primary lessons noted by the	3
Majority apply to this case.2 Defendants’ argument of foreseeability, as a complete	4
defense, necessarily implicates Decedent’s negligence as the sole cause of her death.	5
As discussed earlier, the question before the jury was whether Defendants’ negligence	6
was the cause in fact of Decedent’s death, or causation. The Torres court noted “a	7
trend in New Mexico toward simplifying the complex task of the jury in deciding	8
issues of causation” and warned that “[t]he issue of independent intervening cause	9
adds a complex layer of analysis to the jury’s determination of proximate cause.”	10
1999-NMSC-029, ¶ 21. The Court limited the use of the instruction because it “is	11
sufficiently repetitive of the instruction on proximate cause and the task of	12
apportioning fault that any potential for jury confusion and misdirection outweighs its	13
usefulness.” Id.	14
{54} 	Here, the Majority correctly points out that foreseeability is a jury issue and that	15
a finding of foreseeability precludes a finding of independent intervening cause.	16

33
However, foreseeability was argued by Defendants in connection with both causation	1
and breach of standard of care. So, instructing the jury on independent intervening	2
cause in addition to the other foreseeability questions is redundant and risks confusion	3
to the jury. Because the jury already necessarily found that Decedent’s suicide was	4
foreseeable by imposing liability on Defendant, remanding this case for a new trial	5
and giving the independent intervening cause instruction gives Defendants an unfair	6
advantage by allowing them the opportunity to argue foreseeability multiple times.	7
{55} 	The evidence at trial was directed at causation and the parties’ comparative	8
fault. Accordingly, the principles of Torres, 1999-NMSC-029, and Chamberland,	9
2001-NMCA-045, apply directly to this case and a jury instruction on independent	10
intervening cause is precluded. With all due deference, I am concerned that the	11
Majority’s holding will result in confusion to the jury and inadvertent application of	12
contributory negligence; the outcome our Supreme Court explicitly cautioned us	13
against in Torres. 1999-NMSC-029, ¶ 18.	14
{56} 	For these reasons, I respectfully dissent.	15
16
_______________________________	17
M. MONICA ZAMORA, Judge	18