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Lopez v. Reddy3/30/2005
unction on a trial court judge as to the admissibility of an expert's opinion. See Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir. 2001) (internal quotation marks and citation omitted); Baerwald, 1997-NMCA-002, 17. In determining whether an expert witness is competent or qualified to testify, " he trial 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." Wood v. Citizens Standard Life Ins. Co., 82 N.M. 271, 273, 480 P.2d 161, 163 (1971). The ruling "will not be disturbed . . . [,] unless is manifestly wrong or the trial court has applied wrong legal standards in the determination." Dahl v. Turner, 80 N.M. 564, 568, 458 P.2d 816, 820 (Ct. App. 1969) (internal quotation marks and citation omitted). We therefore review the trial court's decision to exclude Dr. Singer's testimony under an abuse of discretion standard.
{15} Under Rule 11-702, "a witness must qualify as an expert in the field for which his or her testimony is offered before such testimony is admissible." Torres, 1999-NMSC-010, 45. In most cases, this means that the "calling party must qualify the witness to testify as an expert first, before any substantive testimony is given." Id. (internal quotation marks and citation omitted).
{16} The qualifications of an expert are dependent on the type of negligence claimed and the medical complexity involved. We detail the claims and evidence regarding the surgeries in this case. Plaintiffs assert that Defendant failed to remove two papillomas or two intraductal masses that were indicated by the radiology tests. Indeed, after reviewing the radiology films for Plaintiff, Defendant's preoperative diagnosis was a " onpalpable calcified lesion, upper outer quadrant of the right breast, along with another retro-areolar lesion, probably consistent with adenoma of the duct." In other words, the radiology films indicated the presence of two lesions or masses. After the surgery, the pathology report on the removed tissue indicated that no lesions were found and provided a postoperative diagnosis of fibrosis, scattered microcalcifications, adenosis, benign lymph node, fibrocystic change, and chronic lobular and periductal mastitis. Similarly, pre-and postoperative diagnoses by Dr. Ramos, related to the second surgery, were " ight breast intraductal papillomas." The pathology report on the tissue removed by Dr. Ramos, in pertinent part, diagnosed the tissue as " enign ductal epithelial hyperplasia" with "organizing fat necrosis, fibrosis and old hemorrhage." No papillomas were found by the pathologist in the second tissue sample.
{17} In both surgical cases, the radiology reports and the surgeon's diagnoses indicated abnormal tissue. Both surgeons removed tissue, but subsequent pathology reports found that the tissue did not contain the masses indicated by the radiology reports. According to the deposition testimony of Dr. Ramos, a discrepancy between what is suspected and what is found occurs in her practice approximately one percent of the time. In deposition testimony, Dr. Singer acknowledged that the pathology reports from both surgeries did not show discrete papillomas, which had been indicated by the radiology tests. Because Plaintiffs assert that Defendant failed to remove all of the tissue that made the biopsy necessary, i.e., the two papillomas, an expert would need to address the relationship between the radiology reports and the surgical decision on the amount and location of tissue to be removed, as well as the significance of the disparity between the radiology and pathology reports.
{18} Dr. Singer presented his qualificati
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