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Lewis v. Samson9/14/1999
{71} I agree that a new trial is required because of the district court's refusal to permit Plaintiff to call Penny Griner as a witness. This case is different from Reaves v. Bergsrud, 1999-NMCA-075, ___ N.M. ___, 982 P.2d 497 (No. 19,536, filed May 5, 1999). In that case we recognized that when a district court orders a deadline for disclosure of witnesses, particularly expert witnesses, the district court has broad discretion to refuse to grant relief from the deadline. See id. Trial Judges must be permitted to control such matters to keep litigation from getting out of hand. But here, Plaintiff disclosed Griner as a witness before any deadline imposed by a court order. I hope that the combination of the opinions in Reaves and this case will encourage the district courts to set and enforce discovery deadlines.
{72} My disagreement with the majority concerns the Discussion of successive (or, better, divisible) injuries. How should the courts deal with a claim by a person who suffers an injury caused by one tortfeasor and who then is allegedly further injured by a second tortfeasor? In the case on appeal, the patient was stabbed and then was allegedly subjected to medical malpractice causing his death. The question also arises when a person is injured by successive motor vehicle accidents, as in a chain-reaction crash, or when a person injured in a motor vehicle accident is then further injured because of defects in the vehicle, as when a seat belt fails and the occupant is ejected from the vehicle.
{73} In my view, the proper approach is that set forth in Restatement (Third) of Torts: Apportionment of Liability ยง 50 (1999) (hereinafter Restatement), recently adopted by the American Law Institute, not the approach adopted by the majority. In particular, I would hold that a plaintiff is not entitled to instructions treating the plaintiff's injuries as divisible unless the plaintiff produces evidence showing what damages would have been suffered if the alleged "successive tort" had not occurred. In the present case, Plaintiff had the burden to prove what damages the patient would have suffered from the stabbing had there been no alleged malpractice. Although Plaintiff could probably produce that evidence on retrial, she did not do so at the first trial; therefore, the district court did not err in its instructions or other rulings on the issue of "successive tortfeasors."
{74} It is not clear to me what approach has been adopted by the majority for determining when torts are successive torts. To decide the case before us on appeal, the majority appears to say only that the facts here are like those in Lujan v. Healthsouth Rehabilitation Corp., 120 N.M. 422, 426, 902 P.2d 1025, 1029 (1995), and therefore the tortfeasors must be treated as successive tortfeasors. In other words, the majority finds it unnecessary to discuss the controlling legal principles to resolve this appeal; the result in Lujan, in their view, compels their Conclusion, regardless of what the reasoning was in Lujan. For other cases, however, the majority appears to endorse a five-factor test derived from Lujan. See ante at 44 (the factors may assist court "under facts different from those present here and in Lujan"), 55 (courts should consider "the five factors enumerated in Lujan"); see also ante at 44 (quoting Brady C. Pofahl, Tort Law-Original and Successive Tortfeasors and Release Documents in New Mexico Tort Law: Lujan v. Healthsouth Rehabilitation Corporation, 27 N.M. L. Rev. 697, 707 (1997), which states that Lujan used the five factors "to distinguish between concurrent and successive tortfeasors"). Consequently, I should comment on the five-factor test as an alternative to the approach I would fo
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