April 19, 2011 – Zia Trust, Inc., as Personal Representative of the Estate of Bryan Trujillo v. Leyna Aragon, No. 29,160

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Correction Page - Zia Trust, Inc. v. Aragon, No. 29160, W/S-V, Filed 4/18/2011
Cover page, line 21 - Changed Kathleen M. Nixon to Kathleen ML Mixon

INTHE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number

Filing Date: _April 18, 2011

NO. 29,160

ZIA TRUST, INC., as Personal Representative
of the ESTATE OF BRYAN TRUJILLO,

Plaintiff-A ppellant,

V.

LEYNA ARAGON,
Defendant-A ppellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Valerie M. Huling, District Judge

Carter & Valle Law Fimm, P.C.
Richard J. Valle
C.D. Carter, ITI

Albuquerque, NM
for Appellant

Simone, Roberts & Weiss, P.A.
Kathleen M. Mixon
Meena H. Allen

Albuquerque, NM

for Appellee

OPINION
WECHSLER, Judge.
{1} 	We consider in this appeal both the district court’s decision not to allow an
emergency room doctor’s opinion concerning a decedent’s chance of survival from
fatal injuries after being struck by an automobile, as well as issues at trial pertaining
to the defense of suicide as an intervening cause.
{2} 	As to the doctor’s opinion testimony, the district court did not allow the
testimony on the basis that it was conjectural and unreliable. 	It granted partial
summary judgment precluding the claim of lost chance of survival. We hold that the
district court did not abuse its discretion in disallowing the testimony and affirm the
district court’s grant of partial summary judgment. As to the trial issues, we hold that
(1) the district court did not abuse its discretion in allowing the use of the term
“suicide” at trial, and (2) even if the instruction on suicide as an independent
intervening cause was erroneous, the error was harmless because the jury concluded
that there was no negligence on the special verdict form. We affirm the judgment of
the district court.
FACTUAL AND PROCEDURAL BACKGROUND
{3} 	Plaintiff Zia Trust, Inc., as personal representative of the estate of Bryan
Trujillo, Decedent, brought suit against Defendant Leyna Aragon, alleging claims of

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negligence, negligence per se, wrongful death (collectively, wrongful death claims)
and lost chance of survival as the result of an automobile accident in which Decedent,
a pedestrian, died. The district court granted Defendant’s motion for partial summary
judgment with regard to the lost chance of survival claim, and the wrongful death
claims proceeded to trial.
{4} 	The facts underlying the claims involve an automobile accident between
Defendant, while driving an automobile, and Decedent, while a pedestrian, causing
fatal injuries to Decedent. With respect to the wrongful death claims, Plaintiff alleged
that Defendant caused Decedent’s death by her negligence and failure to comply with
applicable laws. As the basis for its lost chance of survival claim, Plaintiff alleged
that Defendant fled the scene of the accident, did not provide assistance to Decedent,
and delayed the provision of medical services to Decedent, who was alive after the
accident. To support its allegations of lost chance of survival, Plaintiff retained as an
expert Dr. Philip J. Froman, who opined that immediate action at the time of the
accident could have increased Decedent’s likelihood of survival by twenty-five
percent.
{5} 	Many of the facts of the accident and its aftermath are disputed. 	There was
testimony that Decedent, age twenty, had been drinking the night of the accident with
Barbara Salazar and Jennifer Gallegos at Gallegos’ home. Donna Archibeque was

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also present. Decedent and Salazar had a lengthy relationship and were the parents
of two children. Decedent was drunk and became upset with Salazar and left. He
returned in about fifteen minutes. When he came to the door, Salazar and the others
were laughing. Decedent again became upset, and when Salazar told him to “shut
up,” Decedent said something to the effect that he was going to kill himself and that
he was “going to go die.” He again left. In a subsequent telephone conversation with
Salazar, Decedent told her that he “was walking between cars[.]”
{6} 	Defendant, age seventeen, was driving with Lenore Moya and Tim Cogis in the
car with her. Defendant testified that she had consumed a small amount of marijuana
the night of the accident. She saw a shadow “move across the road[,]” toward a truck
in front of her, and “then to the shoulder.” 	The truck swerved. 	She thought the
shadow was an animal. She slowed down, and a man came running from her blind
spot and threw himself on her car. He was wearing dark clothes.
{7} 	Right after the accident, Moya answered Decedent’s cell phone and spoke with
Salazar. Believing that there had been an accident, Salazar and Archibeque drove for
a couple of minutes to find Decedent. When they arrived, Decedent was breathing,
responded to Salazar by trying to lift his head, and squeezed Salazar’s hand. In the
meantime, Defendant had panicked and left the scene of the accident because Cogis
possessed marijuana. 	John Gordon, a deputy sheriff, drove upon the scene

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approximately five minutes after Salazar arrived. 	He reported the accident and
checked Decedent’s pulse, which was present.
{8} 	Living Cross Ambulance (Living Cross) responded to the scene three minutes
after it received a dispatch call. A Living Cross supervisor, Allison Lopez, one of the
responders, stated that Decedent “had sustained multi[-]system traumatic injuries.”
She observed, among other things, that “[D]ecedent’s spine was exposed and part of
his skull and brain matter was missing.” Approximately eleven minutes after Living
Cross arrived, its personnel could not discern any pulse. They were unable to revive
Decedent, who died at the scene.
{9} 	The Office of the Medical Investigator (OMI) performed a “gross autopsy” or
an external review of the body. It did not perform an internal or open autopsy. No x-
rays were performed. 	The medical records indicated that Decedent sustained
numerous external injuries, including fractures, abdominal injury, traumatic blood
loss, cardiac arrest, flail chest, lacerations to the front of the head, foot fracture, right
elbow open fracture, unstable pelvis, multiple leg fractures, right knee fracture,
hypovolemia shock, and neck injury.
{10} 	Defendant filed a motion for partial summary judgment with respect to the lost
chance of survival claim, challenging the validity of the claim and arguing that, even
if there were a valid claim, Dr. Froman’s opinions were insufficient to support such

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a claim. Defendant also filed a motion for summary judgment as to Plaintiff’s other
claims that is not relevant to this appeal except to the extent that facts developed by
the parties in connection with that motion were used by the parties in connection with
the motion concerning the lost chance of survival claim. The district court granted
only the motion for partial summary judgment. The wrongful death claims proceeded
to trial, at which Defendant raised as a defense the intervening cause of Decedent’s
suicide. The jury returned a verdict in favor of Defendant. Plaintiff appeals from the
district court’s judgment.
{11} 	On appeal, Plaintiff contends that the district court erred in (1) granting the
motion for partial summary judgment, (2) allowing the jury to consider whether
Decedent attempted suicide, and (3) instructing the jury that suicide was a defense to
negligence. We turn to Plaintiff’s arguments.
LOST CHANCE OF SURVIVAL
{12} 	The district court granted Defendant’s motion for partial summary judgment on
Plaintiff’s claim of lost chance of survival. The district court stated that the problem
with the claim, in part, was Dr. Froman’s testimony. As to the testimony, it stated
that: 	“This is guess; this is conjecture. 	This is not based on anything other than
making assumptions that should not support any type of verdict. . . . It clearly would
be allowing a jury to just guess, based on this.” When denying Plaintiff’s motion to

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reconsider partial summary judgment on lost chance of survival, the district court
ruled that, even if Plaintiff had a claim, “the testimony of . . . Plaintiff’s expert
regarding this matter is too speculative and unreliable. 	The expert did not even
possess 	the 	necessary 	facts 	to 	enable 	him 	to 	express 	a 	reasonably 	accurate
conclusion.” Plaintiff argues on appeal that the testimony of its expert, Dr. Froman,
was sufficient for the jury to consider on the issue of lost chance of survival. We do
not agree.
{13} 	Rule 11-702 NMRA entitled: “Testimony by experts,” governs the admission
of expert testimony in our courts. The Rule states:
If scientific, technical or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience, training
or education may testify thereto in the form of an opinion or otherwise.
The three prerequisites for the admission of expert testimony under the rule are: (1)
the witness must be qualified as an expert; (2) the specialized testimony must assist
the trier of fact; and (3) the expert witness testimony must be limited to scientific,
technical, or other specialized knowledge in which the witness is qualified. State v.
Alberico, 116 N.M. 156, 166, 861 P.2d 192, 202 (1993). 	The party offering the
evidence has the burden to satisfy these requirements. State v. Morales, 2002-NMCA-
052, ¶¶ 21, 23, 132 N.M. 146, 45 P.3d 406.
{14} 	This case concerns the second prerequisite; there is no issue concerning Dr.

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Froman’s qualifications as an emergency medical provider. In considering the second
prerequisite, the district court has the duty to make sure that “an expert’s testimony
rests on both a reliable foundation and is relevant to the task at hand so that
speculative and unfounded opinions do not reach the jury.” 	Parkhill v. Alderman-
Cave Milling & Grain Co. of N.M., 2010-NMCA-110, ¶ 12, 149 N.M. 140, 245 P.3d
585, cert. granted, ___ NMCERT ___, ___ N.M. ___, ___ P.3d ___. (No. 32,690,
Dec. 3, 2010) 	This determination lies in the discretion of the district court. 	See
Alberico, 116 N.M. at 169, 861 P.2d at 205 (stating that we review a district court’s
admission or exclusion or expert testimony for abuse of discretion). 	An abuse of
discretion requires this Court to conclude that the district court’s ruling “is clearly
contrary to the logical conclusions demanded by the facts and circumstances of the
case.” 	Sims v. Sims, 1996-NMSC-078, ¶ 65, 122 N.M. 618, 930 P.2d 153. “When
there exist reasons both supporting and detracting from a trial court decision, there is
no abuse of discretion.” 	Talley v. Talley, 115 N.M. 89, 92, 847 P.2d 323, 326 (Ct.
App. 1993).
{15} 	Plaintiff supported its response to Defendant’s motion for summary judgment
on lost chance of survival with two affidavits and Dr. Froman’s deposition testimony.
Affidavits of expert witnesses must present admissible evidence to be considered in
connection with a motion for summary judgment. See Galvan v. City of Albuquerque,

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85 N.M. 42, 45, 508 P.2d 1339, 1342 (Ct. App. 1973) (“The affidavit did not set forth
facts admissible in evidence and was not entitled to consideration.”); see also Lopez
v. Reddy, 2005-NMCA-054, ¶¶ 5, 10, 14, 22, 137 N.M. 554, 113 P.3d 377 (upholding
district court’s Rule 11-702 exclusion of expert’s affidavit in response to summary
judgment motion); cf. In re Estate of Keeney, 121 N.M. 58, 61, 908 P.2d 751, 754 (Ct.
App. 1995) (allowing affidavit of expert witness that presented admissible testimony
that was not based on the expert’s personal knowledge rather, it was opinion
testimony of an expert, and therefore would have been admissible at trial).
{16} 	In connection with this case, Dr. Froman reviewed the reports of the OMI,
Living Cross, as well as the deposition of Salazar, who was with Decedent at the scene
of the accident. Dr. Froman stated his opinion that “if there had been an immediate
call to EMS at the time of the traumatic event, there could have been an increased
likelihood of survival of 25%.” He supported his calculation with the resuscitation
rates of the Abbreviated Injury Scale to arrive at a Trauma Injury Severity Score. He
determined from the OMI report that Decedent suffered multiple rib fractures,
hemothorax, pelvic fractures, open tib fib, and soft tissue injuries. He noted that the
OMI report did not discuss an open head injury that would result in loss of brain
matter as reported by Living Cross. There was no internal autopsy, and Dr. Froman
needed to assume certain medical information to reach his opinion. For example, he

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did not know Decedent’s respiratory rate, systolic blood pressure, and Glasgow Coma
Scale. To compensate for the absence of information, Dr. Froman made assumptions
in his scenario that resulted in a twenty-eight percent chance of survival.
{17} 	The district court did not abuse its discretion by declining Dr. Froman’s
testimony because it was speculative or conjectural. 	If a claim for lost chance of
survival is recognized in this context, an issue we do not decide, Plaintiff would be
required to establish through a medical expert that Defendant’s failure to initiate
emergency response caused the loss of chance of survival. See UJI 13-1635 NMRA
(requiring evidence for lost chance claim from a medical expert establishing that the
plaintiff lost a measurable opportunity to avoid a better outcome or survival due to the
defendant’s negligence); Alberts v. Schultz, 1999-NMSC-015, ¶ 29, 126 N.M. 807,
975 P.2d 1279 (stating that in claim for loss of chance of survival in medical
malpractice case that evidence “must show to a reasonable degree of medical
probability that the defendant’s negligence caused the loss of the chance of a better
result”). The district court concluded that Dr. Froman’s testimony was too speculative
to establish this causation.
{18} 	Although Dr. Froman did his best to quantify the possibility of Decedent’s
survival based in part on known facts established in the investigation of the accident,
his opinion was necessarily based on information that was not available. 	Most

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significantly, there was no internal autopsy. Dr. Froman therefore did not know what
brain or internal injuries Decedent had suffered. 	In addition, there were no x-rays
from which he could ascertain the extent or existence of skull or back fractures. As
a result, Dr. Froman opined about Decedent’s chance of survival without specific
knowledge as to the cause of Decedent’s death or the conditions that led to his death.
From the nature of this type of information, the district court could have logically
concluded that it was material to the issue that would have been before the
jury—Decedent’s chance of survival from the injuries that caused his death.
{19} 	To be sure, an expert witness may make assumptions based on evidence in the
record to reach a conclusion that may be presented to a jury. State v. Downey, 2008-
NMSC-061, ¶ 34, 145 N.M. 232, 195 P.3d 1244. However, to be admissible under
Rule 11-702, an expert’s testimony must assist the trier of fact. Alberico, 116 N.M.
at 168, 861 P.2d at 204. This requirement focuses on the reliability and therefore the
relevancy of the testimony. Id. To be relevant, expert testimony must “fit” the facts
of the case and “prove[] what it purports to prove.” Downey, 2008-NMSC-061, ¶ 30
(internal quotation marks and citation omitted). In addition, to provide admissible
testimony, rather than inadmissible conjecture, an expert must “possess[] such facts”
to enable the expert “to express a reasonably accurate conclusion.” Id. ¶ 32.
{20} 	In Downey, our Supreme Court held that an expert’s opinion concerning

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retrogade extrapolation did not fit the facts of the case because the expert assumed that
the defendant had consumed his last drink prior to a collision. Id. ¶ 33. The defendant
left the scene for five to ten minutes after the collision to call emergency assistance.
Id. ¶ 2. Although the prosecution claimed there was circumstantial testimony that the
defendant had not consumed alcohol after the collision, the time that the defendant
ceased drinking was “impossible to pinpoint to a reasonable certainty.” Id. ¶ 36.
{21} 	Downey is sufficiently similar to this case to assist us in our analysis. 	In
Downey, the expert assumed that the defendant had not consumed alcohol after the
collision. 	Id. ¶ 31. 	Indeed, there was evidence from which the expert could have
made that assumption, although, as the Court determined, that evidence was not
conclusive. Id. ¶ 36. As a consequence, the expert’s testimony was too conjectural
to assist the trier of fact. Id. ¶ 34.
{22} 	In this case, Dr. Froman made his assumptions from evidence that was available
to him. 	His conclusions could not be conclusive, and they need not have been
provided he had sufficient facts to support them. See id. ¶ 32 (“Expert testimony may
be received if, and only if, the expert possesses such facts as would enable him to
express a reasonably accurate conclusion as distinguished from mere conjecture.”
(internal quotation marks and citation omitted)). 	However, Dr. Froman lacked
significant information concerning Decedent’s internal injuries and cause of death. His

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assumptions, therefore, form a substantial part of the foundation for his opinion. The
district court determined that Dr. Froman’s opinion was conjectural without more
concrete support such as that provided by the data concerning the internal injuries and
cause of death. We agree with the district court that, without this information in the
record, and even with Dr. Froman’s testimony, the jury would have been required to
speculate as to the extent of Decedent’s injuries and cause of death in order to
determine Decedent’s chance of survival. 	The district court did not abuse its
discretion in rejecting Dr. Froman’s testimony on the basis that he did not have
sufficient facts to enable him to express a reasonably accurate conclusion, and
therefore his testimony was speculative or conjectural.
{23} 	We are not persuaded otherwise by Plaintiff’s reliance on Bass by Lewis v.
Wallenstein, 769 F.2d 1173 (7th Cir. 1985) (Lewis), and Fuentes v. Reilly, 590 F.2d
509 (3d Cir. 1979), because both cases are not on point. In Lewis, a jury returned a
verdict in favor of the estate of a prison inmate for failing to provide emergency
medical treatment and thereby denying the inmate his civil rights. 769 F.2d at 1176.
The defendant doctor delayed responding to the call to go to the emergency room for
ten to fifteen minutes. Id. at 1183. There was conflicting testimony as to whether the
inmate was alive when he was discovered in his cell. Id. As to the causal connection
between the defendant’s delay and the inmate’s death, all testifying doctors agreed

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that an immediate response was crucial and that “seconds count.” 	Id. 	One expert
supported his testimony with a study that established that “if basic life support is
provided within five minutes and advanced cardiac life support within eight to ten
minutes, the patient’s chance for survival would be 10-30%.” Id. The Seventh Circuit
included this testimony in reaching the conclusion that, when viewed in the light most
favorable to the plaintiff, there was sufficient evidence to support the jury’s finding
of a direct causal connection. Id. at 1184. Plaintiff argues that the testimony in Lewis
is analogous to Dr. Froman’s testimony. However, the context is entirely different.
The issue in Lewis did not involve the review of the exercise of the trial court’s
discretion as to the admissibility of the testimony under Rule 11-702 or its equivalent.
The testimony was admitted, and the question was whether it, along with other
evidence, supported a jury verdict. Lewis has no bearing on this case.
{24} 	In Fuentes, in which the Third Circuit recognized a lost chance of survival
claim under New Jersey law, the trial court had denied the admission of the plaintiff’s
expert witness’s testimony based on its error in interpreting the testimony pertaining
to proximate cause. 590 F.2d at 513. The Third Circuit reversed, specifically stating
that the trial court had abused its discretion because it did not act on a correct legal
premise. 	Id. 	Although Plaintiff in the case before us argues that the district court
erred as a matter of law because (1) it did not consider all evidence for the purpose of

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summary judgment and (2) it did not permit Plaintiff to raise an inference from
statistical evidence, we do not agree. 	As to Plaintiff’s first argument, as we have
discussed, the district court may exclude expert testimony offered in connection with
summary judgment. See Lopez, 2005-NMCA-054, ¶¶ 5, 14, 22. As to the second, we
do not rely on the use of statistical evidence in determining that the district court did
not abuse its discretion; we agree with Plaintiff that it was entitled to do so. 	The
district court made no mention of statistical evidence in ruling that Dr. Froman’s
testimony was too speculative and unreliable. 	The district court did not abuse its
discretion when it concluded that the foundation for an expert’s quantification of a
possible result was insufficient.
ISSUES CONCERNING WRONGFUL DEATH CLAIMS
{25} 	At trial of Plaintiff’s wrongful death claims, Defendant took the position that
Decedent committed suicide. On appeal, Plaintiff argues that the district court erred
in allowing Defendant to use the term “suicide” and in instructing the jury that suicide
was a defense to negligence through an independent intervening cause instruction.
{26} 	We first address Plaintiff’s argument regarding the term “suicide.” Plaintiff
contends that “suicide” only applies to circumstances in which a person takes his or
her own life and not to a situation such as Defendant argued at trial in which a third
person causes the death. Plaintiff points out that this Court in Solorzano v. Bristow,

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2004-NMCA-136, ¶ 14, 136 N.M. 658, 103 P.3d 582, defined “suicide” as “a
voluntary, deliberate, and intentional self-destruction by someone of sound mind.”
According 	to 	Plaintiff, 	the 	requirement 	of 	self-destruction 	limits 	suicide 	to
circumstances in which the person, not another, takes the action to end the person’s
life. Plaintiff further supports its argument by citing Fister ex rel. Estate of Fister v.
Allstate Life Insurance Co., 783 A.2d 194, 197 (Md. Ct. App. 2001), in which the
decedent asked a friend to point a gun at her while she pulled the trigger to kill herself.
When she was unable to pull the trigger with the string she had attached, she told the
friend to shoot her, which he did. 	Id. at 197. 	The Maryland Court of Appeals
interpreted a statute permitting insurance companies to exclude coverage for death by
suicide. Id. at 200-01. It held that the death was not suicide for the purposes of the
statute and insurance policies at issue because the friend exercised his own will and
“was ultimately responsible for” the death. 	Id. at 201. Plaintiff asserts that it was
prejudiced at trial when the district court allowed the use of the term “suicide” over
Plaintiff’s objection because of the term’s prejudicial nature.
{27} 	We need not determine the full scope of the term “suicide” in order to address
Plaintiff’s argument. Our case law has not interpreted the self-destruction aspect of
suicide in the restrictive way that Plaintiff proposes. 	See Solorzano, 2004-NMCA-
136, ¶ 16 (holding that the defendant had the burden of presenting evidence regarding

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the decedent’s state of mind, motivation, and intent as to whether the decedent
committed suicide even though the defendant was driving the vehicle she fell from).
Moreover, Fister is distinguishable because it involved the interpretation of an
insurance statute, a life insurance policy, and a third party who actually caused the
death. 	783 A.2d at 197-98, 201. 	A district court has discretion to ascertain the
admission of evidence. 	State v. Riley, 2010-NMSC-005, ¶ 28, 147 N.M. 557, 226
P.3d 656 (stating that a district court has “a great deal of discretion in admitting or
excluding evidence” (internal quotation marks and citation omitted)). In this case,
Salazar testified that Decedent threatened to “kill himself” and had made similar
threats in the past. We see little distinction between her terminology and the term
“suicide” as defined in Solorzano, 2004-NMCA-136, ¶ 14. The district court did not
abuse its discretion in allowing the use of the term “suicide.”
{28} 	Plaintiff’s claim that the district court improperly instructed the jury that suicide
was an independent intervening cause is also without merit. 	The district court
instructed the jury on Plaintiff’s negligence claim. 	It continued the instruction by
stating Defendant’s contentions that Decedent was negligent and that Decedent’s
actions were an independent intervening cause of the accident. 	An independent
intervening cause “relieves a negligent party of liability.” 	Johnstone v. City of
Albuquerque, 2006-NMCA-119, ¶ 24, 140 N.M 596, 145 P.3d 76. The jury returned

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the special verdict form in this case, stating that Defendant was not negligent. With
that finding, the district court’s instruction on independent intervening cause was not
an issue and therefore the instruction, even if improper, was not prejudicial and
therefore constituted harmless error. See Blackburn v. State, 98 N.M. 34, 37, 644 P.2d
548, 551 (Ct. App. 1982) (“A party complaining of faulty instructions must show
prejudice before reversal is warranted.”).
CONCLUSION
{29} 	We conclude that the district court did not abuse its discretion in excluding Dr.
Froman’s testimony. Without Dr. Froman’s testimony, the district court did not err
in granting partial summary judgment. We further conclude that the district court did
not abuse its discretion in allowing the use of the term “suicide” at trial and that
Plaintiff’s argument concerning the impropriety of the independent intervening cause
instruction is moot. We therefore affirm.
{30} 	IT IS SO ORDERED.
_______________________________
JAMES J. WECHSLER, Judge

WE CONCUR:

JONATHANB. SUTIN, Judge

MICHAEL E. VIGIL, Judge

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