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

 2 Opinion Number:

 3 Filing Date: OCTOBER 26, 2016

 4 NO. 34,195

 5   IN RE: THE PETITION OF PETER J. HOLZEM,
 6   PERSONAL REPRESENTATIVE FOR THE
 7   WRONGFUL DEATH ESTATE OF DOUGLAS
 8   R. REID, DECEASED,

 9 and

10   PETER J. HOLZEM, PERSONAL REPRESENTATIVE
11   FOR THE WRONGFUL DEATH ESTATE OF
12   DOUGLAS R. REID, DECEASED and CHRISTAL
13   REID, individually and as Guardian and next friend
14   of DARIAN REID, a Minor,

15        Plaintiffs-Appellants,

16 v.

17 PRESBYTERIAN HEALTHCARE SERVICES
18 and JOSEPH HELAK, D.O.,

19        Defendants-Appellees.

20 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
21 Sheri A. Raphaelson, District Judge

22 John R. Polk
23 David A. Archuleta
24 Albuquerque, NM

25 for Appellants
1   Rodey, Dickason, Sloan, Akin & Robb, P.A.
2   Edward Ricco
3   W. Mark Mowery
4   Albuquerque, NM

5 for Appellees
 1                                        OPINION

 2 ZAMORA, Judge.

 3   {1}   Peter Holzem, the personal representative of Douglas Reid’s estate, and

 4 Christal Reid, Douglas Reid’s wife (Plaintiffs), appeal an award of summary

 5 judgment in favor of Presbyterian Healthcare Services and Dr. Joseph Helak

 6 (Defendants). This is the second time this case is before us on appeal. See Holzem v.

 7 Presbyterian Healthcare Servs. (Holzem I), 2013-NMCA-100, 311 P.3d 1198. In the

 8 first appeal, we held that the district court erred by excluding the opinion testimony

 9 of Plaintiffs’ only proposed expert witness, and we reversed the district court’s order

10 granting summary judgment in favor of Defendants, which was based entirely on the

11 exclusion of Plaintiffs’ expert witness. Id. ¶¶ 19, 21-22. Upon remand, the district

12 court excluded Plaintiffs’ expert witness and granted summary judgment in favor of

13 Defendants a second time.

14   {2}   In this second appeal, Plaintiffs contend that the district court misconstrued and

15 misapplied our decision in Holzem I, and they challenge the exclusion of their expert

16 witness and the resulting summary judgment in favor of Defendants. We affirm in

17 part and reverse in part.

18 I.      BACKGROUND

19   {3}   We briefly review the facts that gave rise to the original controversy, which are

20 set forth in detail in Holzem I. Plaintiffs’ wrongful death action is based on
 1 allegations of medical malpractice following the death of Douglas Reid from

 2 influenza-related complications. Plaintiffs alleged that Defendants negligently failed

 3 to diagnose and treat Mr. Reid’s influenza and that Mr. Reid’s death could have been

 4 prevented, had he been properly diagnosed and treated with the antiviral drug Tamiflu

 5 when he was seen in the emergency room.

 6   {4}   In his January 8, 2009 deposition, Plaintiffs’ medical expert witness, Darwin

 7 Palmer M.D., proposed that he was qualified to testify on this topic because he was

 8 an infectious disease specialist who taught about and specialized in treating infectious

 9 diseases for twenty-nine years at the University of New Mexico School of Medicine.

10 However, Dr. Palmer also stated that: (1) he had not practiced emergency medicine

11 for nearly fifty years; (2) he had never specialized in emergency medicine; (3) he

12 retired in 1995—approximately four years before Tamiflu was available for

13 prescription; (4) he had not reviewed any literature regarding Tamiflu in preparation

14 for his deposition; and (5) he did not plan to refer to medical research, literature, or

15 studies of any kind when he testified at trial. Plaintiffs attempted to amend Dr.

16 Palmer’s deposition testimony by submitting a six-page witness correction sheet

17 dated February 20, 2009, and signed by Dr. Palmer; however, Defendants filed a

18 motion to strike the document from the record. The district court granted Defendants’

19 motion.


                                              2
 1   {5}   After extensive discovery, Defendants sought summary judgment and

 2 exclusion of Dr. Palmer’s opinion testimony. Attached to Plaintiffs’ response to

 3 Defendants’ motion for summary judgment, Plaintiffs submitted two supplementary

 4 affidavits from Dr. Palmer. In the first affidavit, dated May 28, 2009 and June 12,

 5 2009, Dr. Palmer attested to his qualifications and opinion about causation in Reid’s

 6 case.1 In the second affidavit, labeled “Special Affidavit” and dated June 12, 2009,

 7 Dr. Palmer provided new information about his post-retirement medical practice,

 8 stating that between 1998 and 2002 he treated “hundreds, if not thousands, of

 9 [influenza] patients,” and “was able to carefully observe Tamiflu’s effectiveness

10 based on the time of its administration from the onset of symptoms.”

11   {6}   Defendants moved to strike both affidavits. The motions were not resolved

12 prior to the first appeal. Nonetheless, the district court excluded the testimony of Dr.

13 Palmer, concluding that he was not “qualified to render opinions o[n] the standard of

14 care in the field of emergency medicine, including diagnosis and treatment” and

15 granted summary judgment in favor of Defendants. Plaintiffs appealed.




16         1
             The verification page for the affidavit attached to Plaintiffs’ response to
17   Defendants’ motion for summary judgment was dated June 12, 2009, and the
18   verification page for the affidavit attached to Plaintiffs’ memorandum in support of
19   their motion for summary judgment was dated May 29, 2009. Otherwise, the bodies
20   of the affidavits are identical.

                                              3
 1   {7}   In the first appeal, this Court determined that the general issue in dispute was

 2 the standard of care for treating influenza, and that Dr. Palmer’s capacity to provide

 3 expertise turned on his experience or education with regard to administering Tamiflu.

 4 Holzem I, 2013-NMCA-100, ¶¶ 17, 18. The district court’s decision to exclude Dr.

 5 Palmer’s opinion testimony was based on his lack of specialization in emergency

 6 medicine, and did not address whether he was qualified to testify about the standard

 7 practice for administering Tamiflu. Id. ¶¶ 12, 16. We concluded that the district court

 8 abused its discretion by excluding Dr. Palmer’s testimony on the narrow basis of his

 9 background in emergency medicine, especially in light of evidence indicating that Dr.

10 Palmer was an infectious disease specialist who taught about and treated infectious

11 diseases, including influenza, for twenty-nine years. Id. ¶ 17.

12   {8}   We also noted that the district court had not ruled on Defendants’ motions to

13 exclude Dr. Palmer’s post-deposition affidavits, but did not appear to have considered

14 them as evidence of his qualifications either. Id. Because the district court’s order

15 granting summary judgment was based entirely on the improper exclusion of Dr.

16 Palmer, it was reversed. Id. ¶¶ 17-18. We instructed that “[o]n remand, the district

17 court may resolve the still-pending motions to strike, and the parties may renew or

18 submit any motions, evidentiary or otherwise, they deem to be appropriate in light of




                                               4
 1 that or our ruling.” Id. ¶ 19. The mandate to reopen the case was filed on February 5,

 2 2014.

 3   {9}    While the first appeal was pending, Plaintiffs learned that Dr. Palmer was

 4 diagnosed with Alzheimer’s disease (Alzheimer’s), and was no longer able to testify

 5 or to consult on the case. Plaintiffs moved to modify the pretrial order to allow a new

 6 expert witness. Plaintiffs provided the district court with documentation in support

 7 of their motion, including letters of conservatorship and guardianship for Dr. Palmer,

 8 issued on September 28, 2009, and an affidavit of Plaintiffs’ counsel concerning his

 9 knowledge of Dr. Palmer’s condition and Dr. Palmer’s inability to testify. Plaintiffs

10 requested that they be allowed to replace Dr. Palmer with a new expert witness who

11 had reviewed the relevant medical records and testimony and was fully prepared to

12 testify. Plaintiffs provided the new expert’s curriculum vitae as well as his analysis

13 and conclusions concerning the case.

14   {10}   Defendants renewed their motion for summary judgment and argued that the

15 district court was required to rule on the pending motions to strike Dr. Palmer’s

16 affidavits and the summary judgment motion before considering Plaintiffs’ request

17 to add the new expert. The district court agreed, concluding that the instructions on

18 remand required the court to “go back in time” and rule on the renewed motions

19 based on the information available at the time the motions were initially filed. The


                                              5
 1 district court entered a minute order stating that Plaintiffs’ motion concerning the new

 2 expert was premature and continued the motion until after summary judgment was

 3 decided. Plaintiffs moved to modify or vacate that minute order. The district court

 4 denied the motion, but invited Plaintiffs to file a supplemental response to

 5 Defendants’ summary judgment motion. Plaintiffs subsequently filed their

 6 supplemental response attaching the documentation related to Dr. Palmer’s condition

 7 as well as the qualifications and evaluation of their new proposed expert.

 8   {11}   Without addressing Dr. Palmer’s inability to testify or Plaintiffs’ request to add

 9 a new expert, the district court entered an “amended corrected” order excluding Dr.

10 Palmer’s opinion testimony; an order granting Defendants’ motion to strike Dr.

11 Palmer’s affidavit; an order granting Defendants’ motion to strike the “Special

12 Affidavit” of Dr. Darwin Palmer and Dr. Palmer’s statement of “Revised Opinions”;

13 and an order granting summary judgment in favor of Defendants. This appeal

14 followed.

15 II.      DISCUSSION

16   {12}   Plaintiffs raise five issues on appeal concerning: (1) the exclusion of Dr.

17 Palmer’s opinion testimony, (2) the exclusion of Dr. Palmer’s post-deposition

18 affidavits, (3) the denial of supplemental discovery with Dr. Palmer’s videotaped trial

19 deposition, (4) summary judgment in favor of Defendants, and (5) judicial bias.


                                                6
 1 A.       The Exclusion of Dr. Palmer’s Opinion Testimony

 2   {13}   “The testimony of a medical expert is generally required when a physician’s

 3 standard of care is being challenged in a medical negligence case.” Lopez v. Reddy,

 4 2005-NMCA-054, ¶ 9, 137 N.M. 554, 113 P.3d 377. The admission or exclusion of

 5 a medical expert’s testimony is governed by Rule 11-702 NMRA, which provides that

 6 “[a] witness who is qualified as an expert by knowledge, skill, experience, training,

 7 or education may testify in the form of an opinion or otherwise if the expert’s

 8 scientific, technical, or other specialized knowledge will help the trier of fact to

 9 understand the evidence or to determine a fact in issue.”

10   {14}   “In determining whether an expert witness is competent or qualified to testify,

11 the [district] court has wide discretion, and the court’s determination of this question

12 will not be disturbed on appeal, unless there has been an abuse of this discretion.”

13 Lopez, 2005-NMCA-054, ¶ 14 (alterations, internal quotation marks, and citation

14 omitted). In other words, we will not disturb the trial court’s ruling “unless it is

15 manifestly wrong or the trial court has applied wrong legal standards in the

16 determination.” Id. (alteration, internal quotation marks, and citation omitted).

17   {15}   In Holzem I, we held that the district court’s exclusion of Dr. Palmer’s opinion

18 testimony based on his lack of specialization in emergency room medicine was

19 erroneous, arbitrary, and was not supported by the record. Holzem I, 2013-NMCA-


                                                7
 1 100, ¶ 17 (“Evidence indicates that Dr. Palmer was an infectious disease specialist

 2 who taught about and specialized in treating infectious diseases for twenty-nine years

 3 at the University of New Mexico Medical School. The courses he taught to medical

 4 students included instruction on the diagnosis and treatment of influenza. Not as a

 5 specialist in emergency medicine but as a specialist in infectious disease, Dr. Palmer’s

 6 background afforded him experience and expertise in diagnosing and treating

 7 influenza. The standard for diagnosing and treating influenza is not particular to

 8 emergency medicine, and cannot be construed on such a narrow basis.”).

 9   {16}   On remand, the district court entered an “amended corrected order” excluding

10 Dr. Palmer’s opinion testimony as to causation, purportedly for purposes of clarifying

11 its pre-Holzem I order excluding the opinion testimony of Dr. Palmer entered on

12 December 28, 2009. The amended corrected order does not modify or change the

13 basis for excluding Dr. Palmer’s testimony. The order provides for only one

14 modification, stating: “[t]he [o]rder [e]xcluding the [o]pinion [t]estimony of [Dr.]

15 Palmer . . . filed on December 29, 2010[,] is amended to include the following

16 additional sentence at the end of paragraph 10: Dr. Palmer may not offer an expert

17 medical opinion as to causation.”

18   {17}   The court’s amended corrected order does not modify the basis for excluding

19 Dr. Palmer’s opinion testimony, nor does it address whether Dr. Palmer’s education


                                              8
 1 and experience would qualify him to provide expertise with regard to Tamiflu. See

 2 Holzem I, 2013-NMCA-100 ¶¶ 15, 17 (noting that “a non-specialist can testify as to

 3 the standards of care owed by a defendant specialist, but only if the non-specialist is

 4 qualified and competent to do so. The mere fact that a medical witness is not a

 5 specialist goes to the weight, not to admissibility, of the witness’s expert

 6 testimony[,]” and holding that “Dr. Palmer’s lack of specialization in emergency

 7 medicine does not automatically disqualify him as an expert witness. Rather, it goes

 8 to the weight a jury could give his testimony if determined otherwise to be

 9 admissible” (alterations, internal quotation marks, and citation omitted)).

10   {18}   Defendants argue that the district court, sua sponte, on June 30, 2014, entered

11 the amended corrected version of its pre-appeal order excluding Dr. Palmer’s

12 opinions for purposes of clarifying its February 2, 2010, oral ruling. Because

13 Plaintiffs did not provide this Court with an adequate record to review this amended

14 corrected order, Defendants ask us to apply the presumption of correctness. What is

15 bothersome about this argument is that the order before the Holzem I court did not

16 include this language added to paragraph 10 and therefore was not a consideration by

17 any of the parties and more importantly this Court. To the extent there are

18 discrepancies between the December 28, 2009 order, the district court’s oral

19 clarification, and the amended corrected June 30, 2014 order, the original written


                                               9
 1 order prevails and we need not consider either the oral clarification or the post-appeal

 2 written order. See State v. Lohberger, 2008-NMSC-033, ¶ 20, 144 N.M. 297, 187

 3 P.3d 162 (“Informal expressions of a court’s rulings are not appealable final orders

 4 or judgments. [A] trial court’s oral announcement of a result is not final, and parties

 5 to the case should have no reasonable expectation of its finality.”); Bouldin v. Bruce

 6 M. Bernard, Inc., 1967-NMSC-155, ¶ 3, 78 N.M. 188, 429 P.2d 647 (“[A]n oral

 7 ruling by the trial judge is not a final judgment. It is merely evidence of what the

 8 court had decided to do—a decision that the trial court can change at any time before

 9 the entry of a final judgment.”).

10   {19}   At the time of Holzem I, the December 28, 2009 order was what was before this

11 Court. At that time, this Court had no reason to review whether Dr. Palmer could

12 offer an expert opinion on causation. Defendants argue that nevertheless, the record

13 of the February 2, 2010 hearing was before the Holzem I court, implying that this

14 Court should have known the district court failed to include language in its order.

15 This Court is not required to search the record to find error to reverse the district

16 court, especially where the error was not raised by either party. State v. Weber, 1966-

17 NMSC-164, ¶ 37, 76 N.M. 636, 417 P.2d 444.

18   {20}   We conclude that the district court’s continued reliance on Dr. Palmer’s lack

19 of specialization in emergency medicine as the basis for exclusion, despite our


                                              10
 1 express rejection of that rationale in Holzem I, is an abuse of discretion. See 2013-

 2 NMCA-100, ¶ 17.

 3 B.       The Order Excluding Dr. Palmer’s Videotaped Trial Deposition Is the
 4          Law of the Case

 5   {21}   Plaintiffs initially sought to take a videotaped trial deposition of Dr. Palmer

 6 directly after the discovery deposition was taken in January 2009. Defendants

 7 objected and the district court ordered that there be “a reasonable opportunity and

 8 period of time to prepare cross-examination for any subsequent videotaped trial

 9 deposition.” On August 13, 2009, Plaintiffs filed a notice that the videotaped trial

10 deposition of Dr. Palmer would take place on August 26, 2009. Defendants moved

11 for a protective order and filed a notice of non-appearance for the deposition. The

12 deposition took place before the district court ruled on the motion for protective

13 order.

14   {22}   Plaintiffs moved to supplement discovery with the videotaped trial deposition

15 testimony. The district court denied the motion since the deposition was taken

16 approximately three months after the close of discovery. The order, which preceded

17 Plaintiffs’ first notice of appeal, was not challenged in that appeal. Accordingly, we

18 conclude that the law of the case doctrine applies and we decline to review the order

19 now. See Varney v. Taylor, 1968-NMSC-189, ¶ 4, 79 N.M. 652, 448 P.2d 164 (“We

20 have also held that the law of the case doctrine applies not only to questions which

                                              11
 1 are expressly or by necessary implication raised and ruled upon in the prior appeal,

 2 but also to questions which might have been but were not raised or presented.”); State

 3 v. Brown, 2003-NMCA-110, ¶ 8, 134 N.M. 356, 76 P.3d 1113 (“Under the doctrine

 4 of law of the case, this Court will not now review issues that [the d]efendant could

 5 have but did not raise in his first appeal.”).

 6 C.       Defendants’ Motions to Strike Dr. Palmer’s Post-Deposition Affidavits and
 7          Summary Judgment

 8   {23}   In Holzem I, we held that summary judgment, based entirely on the exclusion

 9 of Dr. Palmer was improper, partially because the district court had not ruled on

10 Defendants’ motions to strike Dr. Palmer’s post-deposition affidavits. Id. ¶ 21. The

11 affidavits created a factual issue with regard to Dr. Palmer’s qualifications and his

12 capacity to provide expertise concerning the administration of Tamiflu. Id. ¶ 18. We

13 concluded that with the affidavits in the record, the record did not support the

14 exclusion of Dr. Palmer’s opinion testimony or summary judgment. Id. ¶¶ 18, 21.

15   {24}   One month after the mandate was issued, Plaintiffs filed a motion to modify the

16 pretrial order to allow for a new expert witness to be substituted for Dr Palmer.

17 Plaintiffs’ counsel then filed an affidavit informing the district court that he had

18 recently learned Dr. Palmer was suffering from Alzheimer’s and that Dr. Palmer was




                                              12
 1 not able to testify or consult with Plaintiffs in this case.2 As a result, Plaintiffs’

 2 counsel had retained an expert to substitute for Dr. Palmer. Defendants opposed the

 3 motion to modify the pretrial order.

 4   {25}   On remand, Defendants argued that Plaintiffs’ motion was premature and that

 5 the district court was required to rule on the pending motions to strike Plaintiffs’

 6 affidavits and summary judgment before considering the motion to modify the pretrial

 7 order. The district court agreed and stated: “I think the Court of Appeals wants me to

 8 go back in time to when the motion for summary judgment was filed and just review

 9 everything that would have been available at that time.” Based on this interpretation,

10 the court granted Defendants’ motions to strike Dr. Palmer’s affidavits, apprarently

11 without considering Plaintiffs’ supplemental response to Defendants’ motion for

12 summary judgment that the court invited Plaintiffs to submit, and Plaintiffs’ motion

13 to add a new expert.

14   {26}   On appeal, Defendants continue to argue that because Holzem I identified Dr.

15 Palmer’s capacity to provide expertise based on his education and experience

16 regarding Tamiflu as the “decisive issue” in this case, it was appropriate for the




17        2
            Plaintiffs’ motion, memorandum in support, and supporting affidavit request
18 that their new medical expert witness be added, included, and/or permitted to replace
19 Dr. Palmer. Given the circumstances underlying their motion, we consider Plaintiffs’
20 motion a request to replace Dr. Palmer.

                                             13
 1 district court to decide summary judgment based on that issue alone before

 2 considering Plaintiffs’ motion for a new expert. We disagree.

 3   {27}   There is nothing in the language of Holzem I that indicates we intended to limit

 4 the district court’s consideration of summary judgment to the record as it stood when

 5 Defendants’ motion for summary judgment was initially filed. Our instructions on

 6 remand were:

 7          [T]he district court may resolve the still-pending motions to strike, and
 8          the parties may renew or submit any motions, evidentiary or otherwise,
 9          they deem to be appropriate in light of that or our ruling. . . . Plaintiffs
10          may now have the ability to prove those elements of their claim.

11 Holzem I, 2013-NMCA-100, ¶¶ 19, 21. By inviting Plaintiffs to file a supplemental

12 response to Defendants’ motion for summary judgment, the district court appears to

13 have considered the intended application of the remand instructions. Defendants

14 concede that Plaintiffs’ motion for an additional expert “was permissible under the

15 broad language of Holzem I.”

16   {28}   As Defendants point out, our decision in Holzem I did not address the specific

17 circumstances presented by Dr. Palmer’s disability upon remand. And in light of the

18 changed circumstances, Dr. Palmer’s capacity to testify was no longer the decisive

19 issue. However now, Dr. Palmer’s ability to testify at all has become an issue. The

20 broad language in Holzem I cannot be read to preclude the district court from




                                                14
 1 considering significant changes in the parties’ circumstances when determining

 2 whether summary judgment was appropriate.

 3   {29}   New Mexico courts are cautious in granting summary judgment. Madrid v.

 4 Brinker Rest. Corp., 2016-NMSC-003, ¶ 16, 363 P.3d 1197 (“[S]ummary judgment

 5 is a drastic remedy to be used with great caution.” (internal quotation marks and

 6 citation omitted)); see Rule 1-056(F) NMRA (“Should it appear from the affidavits

 7 of a party opposing the motion that he cannot for reasons stated present by affidavit

 8 facts essential to justify his position, the court may refuse the application for

 9 judgment or may order a continuance to permit affidavits to be obtained or

10 depositions to be taken or discovery to be had or may make such other order as is

11 just.”).

12   {30}   While the form and substance of the district court's orders were sloppy and

13 unconventional, the controversy surrounding the affidavits has become irrelevant.

14 Circumstances have simply changed. There is no preserved testimony from Dr.

15 Palmer which could be presented at any future trial. Given the new circumstances

16 Plaintiffs’ case is now entirely dependent on their new proposed expert. Dr. Palmer

17 and all of the issues surrounding his expertise and potential testimony have become

18 mere historical artifact. As such, there is no need to address the propriety of his




                                             15
 1 affidavits substantively because they will play no role in the case as it proceeds.

 2 Accordingly, we conclude that the district court erred in granting summary judgment.

 3 D.       Judicial Bias

 4   {31}   To the extent that Plaintiffs argue that the district court demonstrated bias

 5 against them, we note that Plaintiffs rely on the court’s adverse rulings to support

 6 their claim. Adverse rulings alone are not sufficient to demonstrate judicial bias. See

 7 State v. Hernandez, 1993-NMSC-007, ¶ 44, 115 N.M. 6, 846 P.2d 312 (“[B]ias

 8 cannot be inferred from an adverse ruling[.]”); United Nuclear Corp. v. Gen. Atomic

 9 Co., 1980-NMSC-094, ¶ 425, 96 N.M. 155, 629 P.2d 231 (“Rulings adverse to a party

10 do not necessarily evince a personal bias or prejudice on the part of the judge[.]”).

11 CONCLUSION

12   {32}   For the reasons stated above, we affirm the district court’s exclusion of Dr.

13 Palmer’s videotaped deposition and reverse the district court’s order granting

14 Defendants’ summary judgment and remand the case to the district court. Upon

15 remand, the district court is to allow Defendants to engage in discovery limited to

16 Plaintiffs’ new expert witness in order to obtain the fullest possible knowledge of his

17 qualifications and proposed opinions. The parties may then proceed with litigation

18 accordingly.




                                              16
1   {33}   IT IS SO ORDERED.


2
3                              M. MONICA ZAMORA, Judge

4 WE CONCUR:


5
6 MICHAEL D. BUSTAMANTE, Judge


7
8 RODERICK T. KENNEDY, Judge




                                17
