July 17, 2013 – Peter J. Holzem, as Personal Representative for the Wrongful Death Estate of Douglas R. Reid, deceased, and Christal Reid, individually and as guardian and next friend of Darian Reed, a Minor

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: July 17, 2013
NO. 	30,294
PETER J. HOLZEM, as Personal Representative for the
WRONGFUL DEATH ESTATE OF DOUGLAS R. REID, deceased,
and CHRISTAL REID, individually and as guardian and next friend
of Darian Reed, a Minor,
Plaintiffs-Appellants,
v.
PRESBYTERIAN HEALTHCARE SERVICES
and JOSEPH HELAK, D.O.,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
Sheri A. Raphaelson, District Judge
John R. Polk Law Offices
John R. Polk
Albuquerque, NM
David A. Archuleta
Albuquerque, NM
for Appellants

Rodey, Dickason, Sloan, Akin & Robb, P.A.
Edward Ricco
Jocelyn Drennan
Albuquerque, NM
for Appellees

OPINION
HANISEE, Judge.
{1} 	Peter Holzem, the personal representative of Douglas Reid’s estate, and Christal
Reid, Douglas Reid’s wife, (collectively, Plaintiffs) brought suit against Presbyterian
Healthcare Services and Dr. Joseph Helak (Defendants), seeking damages for the
wrongful death of Reid, under theories of medical negligence, respondeat superior,
and corporate negligence. The district court granted summary judgment in favor of
Defendants based on its conclusion that Plaintiffs lacked competent, admissible expert
testimony to support the elements of duty and negligence with regard to Dr. Helak and
to prove that Defendants’ actions or inactions proximately caused or contributed to
cause Reid’s death. Plaintiffs appeal, asserting that genuine issues of material fact
exist to preclude summary judgment, and contending that the district court abused its
discretion in excluding both expert testimony and a medical study supporting
Plaintiffs’ theory of the case. 	Because the district court abused its discretion in
excluding the testimony of Plaintiffs’ proposed expert, Darwin Palmer, M.D., we
reverse and remand.
I. 	BACKGROUND
{2} 	Reid, a thirty-four -year-old man, first developed influenza symptoms on either
January 2 or 3, 2005. On January 4, he sought treatment at an urgent care center and

2
was subsequently sent to an emergency room at Plains Regional Medical Center, both
of which were owned by Defendant Presbyterian Healthcare Services. 	Dr. Helak
treated Reid at the emergency room where Reid presented with symptoms consistent
with influenza or gastroenteritis. Dr. Helak did not test Reid for influenza. Rather,
Dr. Helak provided Reid with palliative treatment, addressing Reid’s symptoms, but
not determining the underlying cause of his illness. Reid was subsequently sent home
from the hospital.
{3} 	On January 5, Reid’s condition deteriorated, and he was seen by his primary
care physician, Albert Kwan, M.D., who admitted him as a patient into Plains
Regional Medical Center. Reid died there in the intensive care unit at 8:15 a.m. the
following day. The autopsy report, issued on February 7, 2005, concluded that the
cause of death was myocarditis (inflammation of the heart) due to an Influenza B
infection.
{4} 	Plaintiffs subsequently brought this wrongful death action against Defendants.
During the course of the case, Plaintiffs produced evidence from a medical expert, Dr.
Palmer, who attested to breaches of the standard of care owed by Dr. Helak and the
hospital’s nursing staff. The theory of Plaintiffs’ case was that Dr. Helak “failed to
perform a differential diagnosis” when Reid initially presented in the emergency room
and “failed to use an available . . . test for influenza.” 	Plaintiffs asserted that the

3
“differential diagnosis is [a] standard practice in emergency rooms in New Mexico[,]
medication is available to treat influenza along with other courses of action[, and that]
Reid died of undiagnosed and untreated influenza.” 	Plaintiffs concluded that
“Defendants failed to possess and apply the knowledge and use the skill and care
owed to [Reid] and, as the proximate result of the negligence of Defendants, [Reid]
died.”
{5} 	We note that Plaintiffs initiated their case on the primary theory that the
negligent medical action involved the failure to make a differential diagnosis. Yet the
district court identified the material issue to be Plaintiffs’ ensuing contention that Dr.
Helak should have given Reid Tamiflu, a drug used to prevent replication of the
influenza virus, despite Defendants’ assertion that Reid had been symptomatic for
about fifty hours upon arrival at the emergency room. The district court explained:
If it is true that the negligence in this case is only the failure to make a
differential diagnosis[,] then . . . Plaintiff[]s would fail to be able to show
that omission caused the death. Clearly, the allegation of . . . Plaintiff[s]
is that if [Reid] had been given Tamiflu when he was seen in the
emergency department he would have lived. 	It is that omission, the
failure to give Tamiflu, that . . . Plaintiff[s are] necessarily saying caused
the death.
We agree with the district court’s understanding of the nature of the claim asserted
by Plaintiffs. In fact, to support their contention that a differential diagnosis would
have improved Reid’s chances of recovery and survival, Plaintiffs relied on Dr.

4
Palmer’s statement that it would have been medically appropriate for Reid to have
been given the antiviral drug, Tamiflu, had the differential diagnosis been made. In
his deposition, Dr. Palmer indicated that he was qualified to testify on this topic
because he was an infectious disease specialist, who taught about and specialized in
treating infectious diseases for twenty-nine years at the University of New Mexico
Medical School. 	The courses he taught included instruction on the diagnosis and
treatment of influenza.
{6} 	After extensive discovery in which Defendants deposed Plaintiffs’ experts,
Defendants contemporaneously sought summary judgment and exclusion of testimony
by Dr. Palmer. 	In their motion for summary judgment, which incorporated their
separate motion to exclude opinion testimony by Dr. Palmer, Defendants argued that
Plaintiffs failed to provide competent, admissible evidence to establish Dr. Helak’s
breach of the standard of care or Defendants’ causation of Reid’s injuries and death.
Defendants maintained that “Plaintiffs rely upon only one expert, Dr. Palmer, to
express opinions on the standard of care applicable to Dr. Helak [and] . . . whether Dr.
Helak breached that standard.” 	Defendants also asserted that Dr. Palmer was
unqualified to express opinions as to either breach or causation because he “does not
possess adequate training or experience in emergency medicine,” and because he “has
no practical experience with Tamiflu, and has not otherwise reviewed or researched

5
. . . this drug[.]”
{7} 	In his January 2009 deposition, Dr. Palmer stated that he had not practiced
emergency medicine for nearly fifty years and had never specialized in emergency
medicine. 	As well, Defendant produced evidence showing that Tamiflu was not
available for prescription until 1999 at the earliest, approximately four years after Dr.
Palmer retired from practicing medicine. 	We note that although Dr. Palmer was
licensed to practice medicine at the time of his 2009 deposition, he testified that he
had not worked or had privileges at any hospital since 1995 and that he had never
provided medical care as a private practitioner. Dr. Palmer testified at his deposition
that he could not recall practicing medicine between 1997 and 2004.
{8} 	Dr. Palmer further stated when deposed he had not reviewed any literature
regarding Tamiflu in preparation for his deposition and that he did not plan to refer
to medical research, literature, or studies of any kind when he testified at trial. Dr.
Palmer also conceded that he was not aware of any studies published before 2005 that
addressed the effectiveness of Tamiflu administered in excess of forty hours following
the onset of symptoms. Following Dr. Palmer’s deposition, Plaintiffs attempted to
amend the testimony he provided by submitting a six-page witness correction sheet
signed by Dr. Palmer, but upon Defendants’ motion, the district court struck the
document from the record.

6
{9} 	Plaintiffs opposed summary judgment, arguing that Dr. Palmer indeed
possessed sufficient experience in emergency medicine, influenza diagnosis, and the
administration of Tamiflu. 	Attached to their response to Defendants’ motion for
summary judgment, Plaintiffs submitted, among other exhibits, two supplementary
affidavits from Dr. Palmer. In the first affidavit, Palmer attested to his qualifications
and opinion about causation in Reid’s case. 	In the second affidavit, labeled the
“Special Affidavit” by Plaintiffs, Dr. Palmer provided new information about his post-
retirement medical practice in Zimbabwe and in a health clinic in Albuquerque. In the
Special Affidavit, he stated that “[s]hortly after his retirement he spent two years
teaching infectious disease, urgent care[,] and emergency medicine at the University
of Zimbabwe Medical School, . . . which involved a plethora of infectious diseases
including all forms of influenza.”
{10} 	The Special Affidavit also avowed that from 1998 through 2002, Dr. Palmer
practiced medicine two days per week in the Healthcare for the Homeless Clinic,
where he treated patients with various stages of influenza infections. 	Dr. Palmer
attested that “[t]his experience started before the modern antiviral treatments for
influenza became available and continued through the introduction of Tamiflu[,]
giving him a close observation of the effectiveness of this antiviral drug which he
prescribed regularly.” The Special Affidavit stated that during his time at the clinic,

7
Dr. Palmer treated hundreds, if not thousands, of influenza patients, and “was able to
carefully observe Tamiflu’s effectiveness based on the time of its administration from
the onset of symptoms.” The Special Affidavit asserted that “[b]ased on his personal
experience in diagnosing, observing, treating[,] and following influenza patients in the
many hundreds, if not thousands, he is thoroughly familiar with this infectious
disease, its consequences, and the effectiveness of the various treatments that have
been administer[ed] for it over the years.”
{11} 	Defendants subsequently brought motions to strike both affidavits, arguing that
they were “sham” affidavits and that “Dr. Palmer should be bound by his deposition
testimony, not by a self-serving and contradictory affidavit served after the conclusion
of discovery.” Defendants contended that the Special Affidavit qualified as a “sham”
because this additional work experience was not identified on Dr. Palmer’s curriculum
vitae produced during discovery and because it contradicted his deposition testimony
that he did not practice medicine between 1997 and 2004. Plaintiffs responded that the
Special Affidavit was meant to supplement Dr. Palmer’s deposition testimony and that
Defendants had previously agreed to post-deposition supplementation of discovery.
The district court did not rule on either motion to strike the post-deposition affidavits.
{12} 	Nonetheless, the district court excluded the testimony of Dr. Palmer, concluding
that he was not “qualified to render opinions o[n] the standard of care in the field of

8
emergency medicine, including diagnosis and treatment.” It appears from the court’s
order that this decision was based primarily on the court’s finding that “[e]mergency
[m]edicine is a specialized field of medicine in which Dr. Palmer has never been
certified, never received specialized education, nor ever practiced.” Although argued
by Defendants as a ground for exclusion, the court did not note Dr. Palmer’s
experience or inexperience with Tamiflu in its decision to exclude his testimony. The
district court then granted summary judgment in favor of Defendants, stating that
based on its Daubert analysis, it agreed with Defendants that
(1) Plaintiffs do not have competent, admissible expert testimony to
support the elements of duty and negligence against [Defendant], and
(2) Plaintiffs also do not have competent, admissible expert testimony to
support their claim that alleged negligence on the part of the Defendants
proximately caused or contributed to cause the death of Douglas Reid
and resulting harm to . . . Plaintiffs.
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). 	Plaintiffs now
appeal.
II. 	DISCUSSION
{13} 	At the heart of the summary judgment motion was Plaintiffs’ purported lack of
evidence to support the elements of duty, breach of duty, and causation, that is,
whether Reid would have had a better chance of survival had the proper standard of
care been adhered to by Dr. Helak. Specifically, at issue is whether Dr. Helak should
have performed a differential diagnosis and then administered Tamiflu to Reid. “The

9
testimony of a medical expert is generally required when a physician’s standard of
care is being challenged in a medical negligence case.” Lopez v. Reddy, 2005-NMCA-
054, ¶ 9, 137 N.M. 554, 113 P.3d 377. Here, a medical expert was required to testify
regarding the standard of care applicable to the diagnosis and treatment of influenza,
an infectious disease. 	Once the district court excluded testimony by Dr. Palmer,
Plaintiffs’ only proposed expert witness to prove these core elements of a negligence
cause of action, the court concluded that summary judgment was necessitated.
Plaintiffs assert that it was error to exclude Dr. Palmer’s testimony and grant summary
judgment on the basis identified by the district court.
A. 	Dr. Palmer’s Absence of Expertise in Emergency Medicine Was Not A
Proper Basis To Disqualify Him As An Expert
{14} 	“With respect to the admission or exclusion of evidence, we generally apply an
abuse of discretion standard where the application of an evidentiary rule involves an
exercise of discretion or judgment, but we apply a de novo standard to review any
interpretations of law underlying the evidentiary ruling.” 	Dewitt v. Rent-A-Center,
Inc., 2009-NMSC-032, ¶ 13, 146 N.M. 453, 212 P.3d 341. “In determining whether
an expert witness is competent or qualified to testify, [t]he [district] court has wide
discretion . . ., and the court’s determination of this question will not be disturbed on
appeal, unless there has been an abuse of this discretion.” Lopez, 2005-NMCA-054,
¶ 14 (alterations in the original) (internal quotation marks and citation omitted).

10
Nonetheless, with regard to the admission of scientific evidence,
[a]n abuse of discretion . . . can be found when the trial judge’s action
was obviously erroneous, arbitrary, or unwarranted. . . . 	An abuse of
discretion standard of review . . . is not tantamount to rubber-stamping
the trial judge’s decision. It should not prevent an appellate court from
conducting a meaningful analysis of the admission [of] scientific
testimony to ensure that the trial judge’s decision was in accordance with
the Rules of Evidence and the evidence in the case.
State v. Alberico, 116 N.M. 156, 170, 861 P.2d 192, 206 (1993).
{15} 	Rule 11-702 NMRA states that “if the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue[, a] witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify [thereto] in the form of an opinion or
otherwise.” 	Under Rule 11-702, the trial court must determine whether an expert
witness is or is not qualified to testify and give an opinion about the particular issue.
Lopez, 2005-NMCA-054, ¶ 14. The medical expert has the task of testifying “as to
how and why he arrives at an opinion that a defendant physician’s conduct has been
substandard.” 	Sewell v. Wilson, 97 N.M. 523, 528, 641 P.2d 1070, 1075 (Ct. App.
1982). 	Thus, “[t]he qualifications of an expert are dependent on the type of
negligence claimed and the medical complexity involved.” Lopez, 2005-NMCA-054,
¶ 16. We note that “a non-specialist can testify as to the standards of care owed by a
defendant specialist, but only if the non-specialist is qualified and competent to do

11
so.” 	Wilson, 97 N.M. at 528, 641 P.2d at 1075. 	“[T]he mere fact that a medical
witness is not a specialist goes to the weight, not to admissibility, of the witness’[s]
expert testimony.” Id.
{16} 	At issue in this case is whether Dr. Palmer possessed the knowledge, skill,
training, or education to be qualified and competent to testify about whether Reid
would have had a better chance at survival had Dr. Helak adhered to the applicable
standard of care. 	More specifically, based upon Plaintiffs’ theory of the case, Dr.
Palmer 	must 	have 	been 	qualified 	to 	testify 	about 	the 	standard 	practice 	for
administering Tamiflu, as well as the likelihood that Tamiflu would have saved Reid’s
life. 	Here, the district court determined that Dr. Palmer was unqualified to testify
because he lacked experience and expertise in emergency medicine, yet it neglected
to incorporate into its ruling consideration of Dr. Palmer’s many years of experience
in infectious disease treatment or to consider the information separately asserted by
way of post-deposition affidavits or even to rule upon Defendants’ motions that the
affidavits be stricken.
{17} 	Initially, we conclude that the district court erred in basing its exclusion on the
exclusive rationale the district court identified, as we reason that Dr. Palmer’s lack of
expertise in emergency medicine does not alone establish a permissible ground for
disqualification as an expert under the circumstance of this case. At issue, generally,

12
is the standard of care for treating influenza. Evidence indicates that Dr. Palmer was
an infectious disease specialist who taught about and specialized in treating infectious
diseases for twenty-nine years at the University of New Mexico Medical School. The
courses he taught to medical students included instruction on the diagnosis and
treatment of influenza. Not as a specialist in emergency medicine but as a specialist
in infectious disease, Dr. Palmer’s background afforded him experience and expertise
in diagnosing and treating influenza. 	The standard for diagnosing and treating
influenza is not particular to emergency medicine, and cannot be construed on such
a narrow basis. Plaintiffs’ influenza-related claim should be addressed by an expert
who has sufficient experience in both influenza diagnosis and treatment that is
pertinent to the facts of this case. Accordingly, Dr. Palmer’s lack of specialization in
emergency medicine does not automatically disqualify him as an expert witness.
Rather, it goes to the weight a jury could give his testimony if determined otherwise
to be admissible. The district court therefore abused its discretion by determining that
Dr. Palmer was not qualified as an expert on this erroneous and arbitrary basis.
{18} 	We discern that the decisive issue with regard to Dr. Palmer’s capacity to
provide 	expertise 	here 	turns 	on 	his 	experience 	or 	education 	with 	regard 	to
administering Tamiflu, a newer drug used in the treatment of influenza. As well, we
recognize that we could affirm the district court’s exclusion of Dr. Palmer’s testimony

13
if the court correctly determined that he lacked the qualifications to offer opinions on
the appropriate use of Tamiflu. Cordova v. World Fin. Corp., 2009-NMSC-021, ¶ 18,
146 N.M. 256, 208 P.3d 901 (explaining that appellate courts may affirm a district
court’s decision if it is right for any reason, so long as doing so would not be unfair
to the appellant). 	However, Dr. Palmer’s Special Affidavit asserted that he had
considerable experience in prescribing Tamiflu and in observing its effects on
influenza. 	While Defendants moved to strike the Special Affidavit on various
grounds, the district court never ruled on those motions. Consequently, the Special
Affidavit was part of the record upon which the district court based its determination
to exclude Dr. Palmer’s testimony, and the district court’s exclusion was therefore
equally improper in light of the Special Affidavit.
{19} 	Defendants suggest that we can determine whether the Special Affidavit was
properly before the district court, but we decline that invitation. It is for the district
court in the first instance to rule on motions and, if it has not done so, there is no
ruling for us to review. We express no opinion about how the district court should
rule on Defendants’ motions to strike. On remand, the district court may resolve the
still-pending motions to strike, and the parties may renew or submit any motions,
evidentiary or otherwise, they deem to be appropriate in light of that or our ruling.
We therefore reverse and remand because, given the record before it, including the

14
Special Affidavit, the district court abused its discretion in excluding Dr. Palmer’s
testimony.
B. 	Summary Judgment Was Improper
{20} 	“Summary judgment is appropriate where there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law.” Self v. United
Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “On appeal
from the grant of summary judgment, we ordinarily review the whole record in the
light most favorable to the party opposing summary judgment to determine if there is
any evidence that places a genuine issue of material fact in dispute.” 	City of
Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M.
717, 213 P.3d 1146. 	“However, if no material issues of fact are in dispute and an
appeal presents only a question of law, we apply de novo review and are not required
to view the appeal in the light most favorable to the party opposing summary
judgment.” Id.
{21} 	The district court based its order of summary judgment entirely on its exclusion
of Dr. Palmer, stating that “Plaintiffs do not have competent, admissible expert
testimony to support the elements of duty and negligence [and proximate cause.]”
Since we hold that the district court abused its discretion in excluding Dr. Palmer,
Plaintiffs may now have the ability to prove those elements of their claim. As such,

15
we reverse the district court’s order of summary judgment.
III. 	CONCLUSION
{22} 	For the reasons stated above, we conclude that the district court erred in
excluding Dr. Palmer’s testimony. We reverse the court’s order excluding Dr. Palmer
and its order of summary judgment and remand the case to the district court. As our
holding is dispositive, we do not address Plaintiffs’ other arguments on appeal.
{23} 	IT IS SO ORDERED.
________________________
J. MILES HANISEE, Judge
WE CONCUR:
RODERICK T. KENNEDY, Chief Judge
CYNTHIA A. FRY, Judge