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Lewis v. Samson9/14/1999
mson was unwilling to perform the thoracotomy.
{6} Dr. Hanosh arrived at Memorial Hospital at approximately 6:11 a.m. and immediately performed a thoracotomy. By Dr. Hanosh's arrival, the patient had suffered a cardiac arrest. He was pronounced dead at 6:17 a.m. Additional facts will be discussed as relevant to our Discussion of the issues.
B. Relevant Trial Court Proceedings
1. Pretrial Proceedings
{7} Initially, Plaintiff filed this case in the District Court of Bernalillo County in October 1995, naming UNM Hospital as an additional defendant. By stipulation of the parties, Plaintiff refiled the case in the District Court of Quay County after Plaintiff moved to dismiss UNM Hospital as a defendant. At a pretrial conference in February 1997, the court set July 14, 1997, as the trial date. The court did not set a discovery deadline at that time.
{8} Also in February 1997, Plaintiff responded to Defendants' request for a list of witnesses by designating "any and all personnel from [Memorial Hospital]," subject to a final witness list. By letter dated March 14, 1997, counsel for Dr. Ortiz requested Plaintiff to supplement her witness list. Plaintiff did not immediately respond. Instead, in May 1997, Plaintiff served a witness list on each Defendant. On June 11, 1997, about a month before the trial date, Plaintiff informed Defendants of her intention to add Penny Griner, an employee of UNM Hospital, to the witness list. Plaintiff intended for Ms. Griner to testify regarding UNM Hospital's procedures for responding to telephone calls. Plaintiff stated at that time that Ms. Griner would be unavailable until the week of June 16. On June 13, Defendants moved to exclude Ms. Griner as a witness on grounds of late disclosure. As of that date, the court had not set any discovery deadlines nor entered a pretrial order. At no time did Defendants depose Ms. Griner.
{9} The court held a pretrial conference on June 17, 1997. At the hearing, counsel argued the relevance of the assailant's conviction and his comparative fault to the issues in this case. The trial court postponed its decision on Defendants' motion to exclude Ms. Griner until June 30, 1997. The court entered a pretrial order the next day, June 18, 1997, which identified the parties' respective witness lists, and set a deadline of June 27, 1997, for all depositions and all other discovery.
{10} At a hearing on June 30, 1997, the court granted Defendants' motion to exclude Ms. Griner as a witness. Plaintiff's counsel unsuccessfully argued that her failure to designate Ms. Griner was an "oversight" based on her previous belief that Defendants would depose Drs. Hanosh and Burton of UNM Hospital, who could discredit Defendants' version of the facts as well as Ms. Griner could. Indeed, at the February 17 pretrial conference, Dr. Ortiz indicated an intent to depose these two doctors.
{11} On July 14, the parties were ready to begin the trial, but they were unable to impanel twelve impartial jurors due to Defendants' close ties in the community. The trial court rescheduled trial for January 1998. On July 24, 1997, after trial was rescheduled, Plaintiff filed three motions.
{12} In her first motion, Plaintiff sought to preclude Defendants from arguing the comparative fault of the assailant at trial on the ground that Defendants were successive tortfeasors, not concurrent tortfeasors. In September 1997, the trial court denied the motion, stating that the motion presented evidentiary issues best resolved by proper jury instruction.
{13} Plaintiff's second motion sought to reopen discovery and to designate additional witnesses. As noted in her brief
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