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Lopez v. Reddy3/30/2005
(Ct. App. 1994).
{26} Defendant's motion for summary judgment included an affidavit from Dr. Gordon, a board certified surgeon who performs breast biopsies; the affidavit stated that Defendant was within the standard of care in his treatment of Plaintiff. As discussed above, Plaintiffs' expert was not qualified to offer testimony to rebut this showing; therefore, no issue of material fact was in dispute, and summary judgment was proper. See Blauwkamp, 114 N.M. at 232, 836 P.2d at 1253 (stating that summary judgment in a medical malpractice case is appropriate when the "`nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim'" (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986)); see also Cervantes v. Forbis, 73 N.M. 445, 449, 389 P.2d 210, 213 (1964) (upholding summary judgment in the absence of expert testimony as to how a defendant surgeon's conduct fell below the standard of care because there could be no genuine issue of material fact), modified on other grounds by Pharmaseal Labs., Inc. v. Goffe, 90 N.M. 753, 757, 568 P.2d 589, 593 (1977).
D. Public Policy Concerns
{27} In their reply brief, Plaintiffs argued for the first time that if the trial court decision is upheld, we will be undertaking de facto tort reform by requiring that "an expert identical in every way to the efendant" in a medical malpractice case. They contend that this will make it more difficult to prosecute those claims. Plaintiffs repeated this argument at oral argument. Although we need not consider arguments made for the first time in a reply brief, State v. Castillo-Sanchez, 1999-NMCA-085, 20, 127 N.M. 540, 984 P.2d 787 (stating that an appellate court will not consider arguments raised for the first time in a reply brief), we believe Plaintiffs' fears are unwarranted. Each malpractice case turns on its own facts. Our holding does not mandate a certain type of expert in every malpractice case; on the contrary, we are making no changes to the requirement that the trial court continue to act as a gatekeeper and determine if the particular expert tendered has the qualifications to testify in the particular case, as set forth in Rule 11-702. Absent an abuse of discretion, the trial court's determination will stand. As explained above, this is the state of the law in New Mexico currently. Blauwkamp, 114 N.M. at 234, 836 P.2d at 1255; Sewell, 97 N.M. at 527, 641 P.2d at 1074.
III. CONCLUSION
{28} For the foregoing reasons, we affirm the trial court's ruling.
{29} IT IS SO ORDERED.
CELIA FOY CASTILLO, Judge
WE CONCUR:
LYNN PICKARD, Judge
CYNTHIA A. FRY, Judge
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