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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2   DOREY NEZ and YOLANDA SANDOVAL,
 3   as Parents and Guardians of their Minor Child,
 4   and as Personal Representatives of the Estate of
 5   DARNELL ANTHONY NEZ, Deceased,

 6          Plaintiffs-Appellants,

 7 v.                                                                                     NO. 31,728

 8 GALLUP-McKINLEY PUBLIC SCHOOLS
 9 and JOHN DOES 1-9,

10          Defendants-Appellees.


11 APPEAL FROM THE DISTRICT COURT OF McKINLEY COUNTY
12 Louis E. DePauli, Jr., District Judge


13 Caren I. Friedman
14 Santa Fe, NM

15 Kelin Law Firm, P.C.
16 Zackeree S. Kelin
17 Albuquerque, NM

18 Law Offices of Butch O’Neal
19 Leo R. (Butch) O’Neal
20 Albuquerque, NM
 1 for Appellants



 2   Narvaez Law Firm, P.A.
 3   Henry F. Narvaez
 4   H. Nicole Werkmeister
 5   Albuquerque, NM

 6 for Appellees


 7                             MEMORANDUM OPINION

 8 WECHSLER, Judge.

 9   {1}   Plaintiffs, Dorey Nez and Yolanda Sandoval, filed claims for personal injury

10 and wrongful death in connection with the injury and subsequent death of their son.

11 Plaintiffs appeal the district court judgment in favor of Defendants, Gallup-McKinley

12 Public Schools and John Does 1-9. Plaintiffs claim that the district court committed

13 error in four ways: (1) by allowing Defendants’ expert, Dr. G. Theodore Davis, to

14 testify; (2) by not considering the deposition testimony of a witness who testified

15 differently at trial; (3) by failing to apply res ipsa loquitur; and (4) by misapplication

16 of the eggshell skull rule. We affirm the holding of the district court that Defendants

17 are not liable.

18 BACKGROUND



                                               2
 1   {2}   Plaintiffs’ son, Darnell Nez, was born with a very rare, progressive neurological

 2 condition.    As a consequence, he could not walk, talk, or care for himself.

 3 Additionally, he suffered from severe osteoporosis. The weakened state of Darnell’s

 4 bones is the cornerstone of this case.

 5   {3}   On March 25, 2004, Darnell suffered a spiral fracture of his left leg. That day,

 6 Darnell’s father dropped him off at Chee Dodge Elementary School, where Darnell

 7 was enrolled. Darnell was lifted from the car and into his wheelchair by his father.

 8 One of the special education aides assigned to Darnell, Charlene Williams, then took

 9 custody of him. A little later in the morning, Williams took Darnell from the regular

10 classroom to the special education classroom earlier than scheduled because he was

11 crying and distracting the other students. She testified that Darnell was still crying in

12 the special education classroom and that these cries were different from his usual

13 cries. Williams decided to take Darnell out of his wheelchair to investigate the source

14 of his discomfort.

15   {4}   Upon removing his pants, Williams discovered that Darnell’s leg was “swollen

16 like a balloon.” By then, another aide was in the room, and she also noted that

17 Darnell’s thigh was red and swollen. Darnell’s mother, Yolanda Sandoval, was

18 subsequently called, and she came to the school. Ms. Sandoval then took Darnell to

19 the Tohatchi Clinic. At the Tohatchi Clinic, it was determined that Darnell had a


                                               3
 1 fractured femur. From the Tohatchi Clinic, Darnell was transported to Gallup Indian

 2 Medical Center, and from there, to University of New Mexico Hospital (UNMH).

 3   {5}   While at UNMH, Darnell’s condition worsened, and he was soon moved to

 4 intensive care. He developed a treatment-resistant form of Staphylococcus Aureus,

 5 was intubated, and spent nearly one month in a coma. After going home from the

 6 hospital, Darnell was more medically fragile than before the accident, required

 7 oxygen, and never again ate solid food. Darnell died on December 24, 2005.

 8   {6}   Plaintiffs sued the school system, alleging negligence while Darnell was in his

 9 school’s care on the day he broke his leg and alleging that his death was a result of the

10 broken leg. After a bench trial, the court found in favor of Defendants. The court

11 determined that Defendants owed Darnell “a duty of care to physically handle him in

12 such a way as to minimize the stress or force placed upon his bones so his bones

13 would not break.” The court also found that “due to the very weak state of [Darnell’s]

14 bones, Darnell was subject to fracture, including spiral fracture, from virtually any

15 routine non-negligent handling.” The court ruled that Defendants did not breach their

16 duty. Plaintiffs appeal.

17 EXPERT TESTIMONY OF DR. G. THEODORE DAVIS




                                               4
 1   {7}   Plaintiffs filed a motion in limine to exclude the testimony of Defendants’

 2 expert witness, Dr. G. Theodore Davis. Plaintiffs assert on appeal that the motion in

 3 limine was erroneously denied.

 4   {8}   The parties concur that the admission of expert testimony rests in the sound

 5 discretion of the district court and that a court’s judgment on this issue will not be

 6 overturned absent abuse of that discretion. State v. Alberico, 1993-NMSC-047, ¶ 58,

 7 116 N.M. 156, 861 P.2d 192. The discretion of the district court is broad, and such

 8 judgment will be sustained unless manifestly erroneous. Id. Any doubt about the

 9 “admissibility of expert opinion evidence should be resolved in favor of admission,

10 rather than exclusion.” Loper v. JMAR, 2013-NMCA-098, ¶ 18, 311 P.3d 1184

11 (internal quotation marks and citation omitted), cert. denied, 2013-NMCERT-008, 309

12 P.3d 100.

13   {9}   The admission or exclusion of expert testimony in New Mexico is governed by

14 Rule 11-702 NMRA. Rule 11-702 establishes three prerequisites for admission of

15 expert testimony: “(1) experts must be qualified; (2) their testimony must assist the

16 trier of fact; and (3) their testimony must be limited to the area of scientific, technical,

17 or other specialized knowledge in which they are qualified.” State v. Torres, 1999-

18 NMSC-010, ¶ 23, 127 N.M. 20, 976 P.2d 20.




                                                5
 1   {10}   Plaintiffs argue that it is “questionable” whether Dr. Davis was qualified to

 2 testify because the last spiral fracture he treated was more than twenty-five years prior

 3 and because the majority of cases for which he offers expert testimony are soft tissue

 4 and low impact injuries. Plaintiffs also argue that Dr. Davis’s opinions that a spiral

 5 fracture can be “spontaneous” and that Darnell’s fracture may have been caused by

 6 a muscle contraction were scientifically unreliable.

 7   {11}   Dr. Davis received his medical degree from Emory University School of

 8 Medicine in 1976. He has been board certified in emergency medicine continuously

 9 since 1990. Orthopedics, pediatrics, and trauma are included within emergency

10 medicine, as defined by the American Board of Emergency Medicine. He has been

11 recognized in state and federal courts as an expert in emergency medicine. He has

12 taught part-time at the medical school at the University of South Carolina in

13 Charleston and also at the University of New Mexico School of Medicine. Dr. Davis

14 supported his theory of spontaneous fracture in children with weakened bones with

15 two articles published in medical journals. In the medical context, according to Dr.

16 Davis, the term “spontaneous” does not mean entirely without force, but instead

17 means with minimal force. Dr. Davis noted that his theory that Darnell’s fracture may

18 have resulted from a muscle spasm was extrapolated from fractures reported and




                                               6
 1 studied in cerebral palsy patients, who, like Darnell, suffered from involuntary muscle

 2 spasms.

 3   {12}   The district court appears to have relied not on Dr. Davis’s theory that a muscle

 4 spasm may have caused Darnell’s fracture, but instead on the testimony of other

 5 experts. The district court found that “a spiral bone fracture can only occur through

 6 the application of torque to the bone.” Plaintiffs called three experts, each of whom

 7 testified that spiral fractures are caused by torque or twisting.

 8   {13}   The district court also found that because of “the very weak state of his bones,

 9 Darnell was subject to fracture, including spiral fracture, from virtually any routine

10 non-negligent handling.” Plaintiffs contend that this finding must be grounded in the

11 testimony of Dr. Davis because without the testimony of Dr. Davis, this finding is

12 unsupportable. However, there is significant other support in the record for the

13 district court’s finding. Plaintiffs’ expert, Dr. Elizabeth Szalay, is acknowledged to

14 be a worldwide expert in bone density in children. Dr. Szalay evaluated both the dual

15 energy absortiometry scans performed on Darnell, which tested his bone density, and

16 the x-rays of his broken leg. She testified that an “insufficiency fracture” is a fracture

17 that “occurs with minimal trauma as a result of the bones being weak” and that

18 Darnell was weak enough to incur such a fracture. Dr. Szalay testified that, “in

19 general, [she] would classify something as an insufficiency fracture if a specific


                                                7
 1 mechanism [of injury] could not be identified.” Reviewing Darnell’s x-rays, Dr.

 2 Szalay noted that Darnell suffered a “moderately displaced” fracture. She testified

 3 that for a child like Darnell, a femur fracture could have resulted from “any care

 4 maneuver,” such as “putting on a garment,” “turning over in bed[,]” or “bathing[.]”

 5 Dr. Szalay testified that Darnell’s fracture could have happened without any negligent

 6 act. We conclude that the finding of the district court that Darnell was subject to

 7 fracture from virtually any non-negligent handling is supported by Dr. Szalay’s expert

 8 testimony.

 9   {14}   Because Dr. Davis was qualified as an expert to testify about emergency

10 medicine, and because his opinions were sufficiently grounded in medical science to

11 be of potential assistance to the trier of fact, the district court was within its discretion

12 to hear his testimony. Furthermore, even assuming that his testimony was improperly

13 admitted, there was no reversible error because we do not conclude that the district

14 court relied on his testimony. See State v. Hernandez, 1999-NMCA-105, ¶ 22, 127

15 N.M. 769, 987 P.2d 1156 (“We presume that a judge is able to properly weigh the

16 evidence, and thus the erroneous admission of evidence in a bench trial is harmless

17 unless it appears that the judge must have relied upon the improper evidence in

18 rendering a decision.”); see also In re Doe, 1976-NMCA-102, ¶ 19, 89 N.M. 700, 556

19 P.2d 1176 (“Erroneous admission of evidence is not reversible error in a non-jury


                                                 8
 1 proceeding unless it appears that the court must have relied upon such evidence in

 2 reaching its decision.”).

 3 TESTIMONY OF VIOLET HUDSON

 4   {15}   Plaintiffs contend that the district court committed reversible error by refusing

 5 to consider the deposition testimony of Violet Hudson. Hudson’s testimony at trial

 6 contradicted her deposition testimony. At trial, Plaintiffs impeached Hudson’s

 7 testimony using her deposition. The subject matter of the contradictory statements is

 8 whether Hudson’s colleague Charlene Williams lifted Darnell on her own, or whether

 9 she was assisted by Hudson. Whether Darnell was lifted using a one-man lift or a

10 two-man lift is important because the policy of the school district for Darnell called

11 for a two-man lift.

12   {16}   Plaintiffs’ argument is based on the district court’s statement that it “cannot rely

13 on the deposition testimony of Hudson to conclude that Williams moved Darnell with

14 a one-man lift.” The issue is whether the district court’s statement is a ruling as a

15 matter of law, which would be incorrect, or a finding based on the weighing of the

16 evidence, which is within the discretion of the factfinder. See Rule 11-801(D)(1)(a)

17 NMRA (stating circumstances under which a party may use a declarant-witness’s

18 prior inconsistent deposition statement for impeachment); see also Lopez v. Adams,

19 1993-NMCA-150, ¶ 2, 116 N.M. 757, 867 P.2d 427 (“It is for the [district] court to


                                                 9
 1 weigh the testimony, determine the credibility of witnesses, reconcile inconsistent

 2 statements and determine where the truth lies.”).

 3   {17}   We conclude that the district court weighed the contradictory evidence and

 4 found that the direct testimony of Hudson and Williams at trial to be more persuasive

 5 than the earlier deposition of Hudson. The district court noted that the evidence on

 6 whether a two-man or one-man lift was “contradictory.” The district court specifically

 7 noted that Hudson contradicted her deposition testimony at trial and found that “[t]he

 8 evidence presented that Williams used a one-man lift to move Darnell is not

 9 persuasive.” Viewed in context, the district court’s finding that it could not conclude

10 based on the deposition testimony of Hudson that a one-man lift was used indicates

11 a weighing of the evidence that we will not disturb. See Sanchez v. Saylor, 2000-

12 NMCA-099, ¶ 12, 129 N.M. 742, 13 P.3d 960 (“The appellate court may not reweigh

13 the evidence [or] substitute its judgment for that of the trier of fact.” (alteration in

14 original) (internal quotation marks and citation omitted)).

15 RES IPSA LOQUITUR

16   {18}   Plaintiffs argue that this case presents a classic scenario for the application of

17 the doctrine of res ipsa loquitur. Plaintiffs’ argument establishes both factual

18 questions and questions of the application of the facts to the law. We review factual

19 questions under a substantial evidence standard, and we review the application of the


                                                10
 1 law to the facts de novo. State v. Neal, 2007-NMSC-043, ¶ 15, 142 N.M. 176, 164

 2 P.3d 57.

 3   {19}   “Res ipsa loquitur describes a set of conditions to be met before an inference

 4 of negligence may be drawn.” Mireles v. Broderick, 1994-NMSC-041, ¶ 6, 117 N.M.

 5 445, 872 P.2d 863. “The doctrine of res ipsa loquitur applies only when, in the

 6 ordinary course of events, an injury would not occur except by the negligence of the

 7 person in exclusive control and management of the injuring instrumentality.” Drake

 8 v. Trujillo, 1996-NMCA-105, ¶ 24, 122 N.M. 374, 924 P.2d 1386; Martinez v. CO2

 9 Servs, Inc., 12 F. Appx. 689, 695 (10th Cir. 2001). The mere fact that an injury

10 occurred is not grounds for concluding that a particular defendant was probably

11 negligent. Drake, 1996-NMCA-105, ¶ 25. “[T]he issue is whether there is a factual

12 predicate sufficient to support an inference that the injury was caused by the failure

13 of the party in control to exercise due care.” Mireles, 1994-NMSC-041, ¶ 6.

14   {20}   Initially, we note that Defendants contend that the issue of res ipsa loquitur was

15 not preserved. Indeed, the trial seems not to have focused on res ipsa loquitur but

16 instead on other issues such as whether Darnell’s injury could have resulted from a

17 two-man lift and the viability of spontaneous fracture as a theory. However, although

18 Plaintiffs did not mention res ipsa loquitur in their proposed findings of fact and

19 conclusions of law, Plaintiffs requested a conclusion of law that a femur fracture with


                                                11
 1 moderate displacement does not happen in the absence of negligence, requested a

 2 finding that the injury to Darnell occurred after he entered the custody and control of

 3 Defendants, and briefly mentioned res ipsa loquitur in closing argument. Because we

 4 conclude that the issue was adequately preserved, we address whether the district

 5 court committed error when it failed to invoke res ipsa loquitur.

 6   {21}   The requisite factual predicate to successfully invoke res ipsa loquitur in this

 7 case is twofold: (1) Plaintiffs must demonstrate to the factfinder that the injury to

 8 Darnell occurred while under the control and management of Defendants, not prior,

 9 and (2) Plaintiffs must further demonstrate that the injury to Darnell could not have

10 happened but for an act of negligence on the part of Defendants.

11   {22}   The district court focused on the second prong of the res ipsa loquitur analysis.

12 The district court found that because of the very weak state of Darnell’s bones, his

13 injury could have been caused by either non-negligent or negligent handling. Plaintiffs

14 contend that “all of the evidence in the case” indicates that Darnell’s injury “could not

15 have occurred in the absence of negligence.” Our review of the record indicates that

16 substantial evidence in the form of testimony from experts called by both parties

17 supports the conclusion that Darnell’s injury could have occurred without negligence

18 on the part of Defendants. Plaintiffs’ expert on bone density in children, Dr. Szalay,

19 straightforwardly testified on cross-examination to this effect:


                                               12
 1          Q. [Defendants] Now, so any type of normal twisting motion
 2          dealing—working with this child [Darnell] could have caused a fracture,
 3          correct?

 4          A. [Dr. Szalay] I can say that the fracture was caused by some sort of
 5          twisting . . . whether it was a fall, whether it was getting a limb caught.
 6          I can’t say that any sort of twisting would have caused the fracture.


 7          Q. And it could . . . have very well happened without any negligent act
 8          on the part of somebody, correct?

 9          A. Correct.

10          Q. And why is that important to note?

11          A. Because any care maneuver, whether it’s dressing, whether it’s
12          turning, whether it’s bathing, puts a certain amount of stress on the
13          bones. And when the bones are weak, they can fracture with—there is
14          always stress applied to the bone, with every action, with every care,
15          with every maneuver.

16 Defendants’ expert, Dr. Davis, was similarly unwilling to infer a negligent act from

17 the nature of Darnell’s injury. Dr. Davis stated that he had “no indication that

18 anything negligently was done [to Darnell] either by staff at the school, by his parents

19 or anyone else.”

20   {23}   Plaintiffs make a semantic argument that when Dr. Szalay answered a question

21 by agreeing that “it” could very well have happened in the absence of negligence, Dr.

22 Szalay was referring not to Darnell’s injury but instead was referring to a theoretical

23 insufficiency fracture. In Plaintiffs’ telling, the theoretical insufficiency fracture is to


                                                13
 1 be contrasted with Darnell’s more serious, moderately displaced, fracture. Therefore,

 2 according to Plaintiffs, Dr. Szalay’s testimony does not support the district court’s

 3 finding that Darnell’s injury could have resulted from virtually any routine

 4 non-negligent handling and, consequently, the court’s finding rests exclusively on the

 5 testimony of Dr. Davis. But we do not agree with Plaintiffs’ reading of Dr. Szalay’s

 6 testimony. In order to discern the meaning of “it[,]” we examine the prior testimony.

 7 Dr. Szalay responded to a question about whether normal work with “this

 8 child”—meaning Darnell—could have caused a fracture, by stating that “the

 9 fracture”—meaning Darnell’s fracture—was caused by “some sort of twisting[.]” Dr.

10 Szalay was then asked if “it . . . could have very well happened without any negligent

11 act on the part of somebody[.]” Dr. Szalay responded “Correct.” We conclude that

12 “it” referred back to “the fracture” which, in turn, referred back to the fracture

13 suffered by “this child[,]” meaning Darnell. Contrary to the contention of Plaintiffs,

14 when Dr. Szalay agreed that “it” could have happened in the absence of any negligent

15 act, she was referring to Darnell’s “moderately displaced” fracture.

16   {24}   Plaintiffs cite numerous cases in support of their position that res ipsa loquitur

17 should be applied in this case. Three of these cases reversed summary judgment on

18 behalf of the defendants.1 Another five cases involved injuries or damages that the

         1
16         DeCarlo v. Eden Park Health Servs., Inc., 887 N.Y.S.2d 315 (N.Y. Sup. Ct.
17 2009); Persinger v. Step By Step Infant Dev. Ctr., 560 S.E.2d 333 (Ga. App. 2002);

                                                14
 1 factfinder found could not have occurred without negligence or were preventable by

 2 ordinary care.2 The cases cited by Plaintiffs are unhelpful because of either different

 3 procedural posture or legally significant different findings by the factfinder.

 4   {25}   Because Darnell’s injury could have occurred in the absence of a negligent act

 5 on the part of Defendants, Plaintiffs cannot successfully invoke res ipsa loquitur. See

 6 Tapia v. McKenzie, 1971-NMCA-128, ¶ 12, 83 N.M. 116, 489 P.2d 181 (“If plaintiff

 7 fails to establish the essential elements of the doctrine, it would not be available to

 8 make a prima facie case of liability.”). The district court did not commit error in

 9 refraining from drawing an inference of negligence. See Pack v. Read, 1966-NMSC-

10 216, ¶ 5, 77 N.M. 76, 419 P.2d 453 (“[T]he doctrine [of res ipsa loquitur] permits but

11 does not require the fact finder to draw an inference of negligence.”).

12 EGGSHELL SKULL RULE

13   {26}   Plaintiffs argue that in finding that Darnell was subject to a fracture from

14 “virtually any routine non-negligent handling[,]” the district court created an

15 untenable rule foreclosing negligence in all cases with “eggshell skull” plaintiffs.

16 Plaintiffs contend that the district court committed reversible error because, under the


16 Ward v. Forrester Day Care, Inc., 547 So.2d 410 (Ala.1989).
         2
19         Franklin v. Collins Chapel Hosp., 696 S.W.2d 16 (Tenn Ct. App. 1985);
20 Zimmer v. Celebrities, Inc., 615 P.2d 76 (Colo. App. 1980); Fowler v. Seaton, 394
21 P.2d 697 (Cal. 1964); Strong v. Shaw, 1980-NMCA-171, 96 N.M. 281, 629 P.2d 784;
22 Mireles, 1994-NMSC-041.

                                              15
 1 court’s statement, there can be no finding of negligence in a case with an eggshell

 2 plaintiff.

 3   {27}   An eggshell plaintiff is susceptible to exaggerated or additional injury because

 4 of the plaintiff’s existing weakness or condition. Salopek v. Friedman, 2013-NMCA-

 5 087, ¶ 20, 308 P.3d 139. Under the eggshell plaintiff rule, a defendant who is liable

 6 in negligence is responsible for all damages to an eggshell plaintiff even when some

 7 of the plaintiff’s injury is a consequence of a special vulnerability. Id. Here, Plaintiffs

 8 argue that the district court turned this rule on its head such that Darnell’s

 9 vulnerabilities would preclude a finding of negligence absent Defendants’ admission

10 of breach.

11   {28}   We disagree. First, the statement of the district court that Plaintiffs find

12 erroneous is not a rule but a factual determination that is supported by substantial

13 evidence in the record. We do not reweigh the evidence on appeal. Sanchez,

14 2000-NMCA-099, ¶ 12 (“The appellate court may not reweigh the evidence [or]

15 substitute its judgment for that of the trier of fact.” (alteration in original) (internal

16 quotation marks and citation omitted)). Also, under the statement at issue, breach of

17 duty—including mishandling—can be proven to the factfinder in conventional ways,

18 including eyewitness testimony and testimony of a victim. The factual determinations

19 in this case were complicated by the fact that Darnell was unable to speak. We cannot


                                               16
1 speculate as to what he might have said. The district court did not misapply the

2 eggshell skull rule when it found that Darnell’s non-negligent, ordinary handling, as

3 well as negligent handling, could have caused his injury.

4 CONCLUSION

5   {29}   For the foregoing reasons, the judgment of the district court is affirmed.

6   {30}   IT IS SO ORDERED.


7                                                  ________________________________
8                                                  JAMES J. WECHSLER, Judge


9 WE CONCUR:


10 ________________________________
11 RODERICK T. KENNEDY, Chief Judge


12 ________________________________
13 M. MONICA ZAMORA, Judge




                                              17
