       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:      _______________

Filing Date: January 30, 2014

Docket No. 31,703

MONIQUE VILLALOBOS,

       Plaintiff-Appellant,

v.

BOARD OF COUNTY COMMISSIONERS
OF DOÑA ANA COUNTY, NEW MEXICO,
DOÑA ANA COUNTY DETENTION CENTER,
CHRISTOPHER BARELA, individually and as
Administrator of the Doña Ana County Detention
Center, AMANDA BUGL, individually, ADALY
MORENO, individually, and MELISSA SAENZ,
individually,

       Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
James T. Martin, District Judge

Camunez Law Firm, P.C.
Rosanne Camunez
Las Cruces, NM

for Appellant

Beall & Biehler
Mary T. Torres
Gianna M. Mendoza
Albuquerque, NM

for Appellees

                                  OPINION

KENNEDY, Chief Judge.

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{1}     In this case, we hold that expert testimony is needed to establish the standard of care
for monitoring inmates in prisons. Monique Villalobos (Plaintiff), an inmate at the Doña
Ana County Detention Center (Detention Center), sued the Board of County Commissioners
of Doña Ana County, the Detention Center, and Christopher Barela (collectively, County
Defendants) for negligence after she was assaulted and raped by three inmates: Amanda
Bugl, Adaly Moreno, and Melissa Saenz (collectively, Inmate Defendants). The district
court granted summary judgment in favor of County Defendants, finding that Plaintiff was
required and failed, to provide expert testimony regarding industry standards for operating
a Detention Center and monitoring inmates. We conclude that this is a case that involves
issues a normal juror would not necessarily know and requires expert testimony. We also
conclude there was no abuse of discretion in discovery rulings the district court made, and
we affirm.

I.     BACKGROUND

{2}      The undisputed facts are as follows. Plaintiff was an inmate at the Detention Center
in January 2007. While she was detained there, she was housed in a large open pod with
other females. On January 12, 2007, Plaintiff was playing cards with another detainee when
Inmate Defendants summoned her into a cell. When Plaintiff met Inmate Defendants in the
cell, they assaulted and raped her. Plaintiff did not report the incident at that time and went
back to playing cards. Approximately ten minutes later, Inmate Defendants called Plaintiff
into the same cell and assaulted and raped her again. Plaintiff contacted a detention officer
and reported the incident. After a criminal investigation, Inmate Defendants were charged
with and convicted of, criminal sexual penetration and conspiracy to commit criminal sexual
penetration.

{3}    Plaintiff sued County Defendants for negligence, alleging that they failed to protect
her from the assault and that their policies have resulted in unacceptable inmate violence of
which she became a victim. She also included claims for battery, sexual assault, a municipal
policy of ignoring and fostering inmate violence, and violation of her Fourth, Fifth, and
Fourteenth Amendment rights.

{4}     Eventually, County Defendants moved for summary judgment based on qualified
immunity, as well as Plaintiff’s lack of expert testimony, demonstrating the standard of care
required of County Defendants and any breach of that standard. The district court agreed
and found that “[a]ll of Plaintiff’s claims fail because she can provide no expert testimony
which demonstrates the standard of care in the detention center industry regarding the
supervision of inmates and detainees, that [County] Defendants breached the relevant
standard of care or [County] Defendants’ alleged breach caused . . . Plaintiff’s injuries.”
Plaintiff appealed, arguing that the district court erred in its expert testimony requirement
as well as two discovery issues. The issue of qualified immunity was not appealed.

II.    DISCUSSION


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A.      Expert Testimony Was Required to Establish the Standard of Care

{5}     Plaintiff argues that the district court erred in its conclusion that she needed expert
testimony to establish an issue of fact regarding the standard of care of the Detention
Center’s staffing, supervision of inmates, and the Detention Center’s operation at summary
judgment. Summary judgment is proper where there is no evidence raising a reasonable
doubt that a genuine issue of material fact exists. See Cates v. Regents of N.M. Inst. of
Mining & Tech., 1998-NMSC-002, ¶ 9, 124 N.M. 633, 954 P.2d 65. “On appeal from the
grant of summary judgment, we ordinarily review the whole record in the light most
favorable to the party opposing summary judgment to determine if there is any evidence that
places a genuine issue of material fact in dispute.” City of Albuquerque v. BPLW Architects
& Eng’rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M. 717, 213 P.3d 1146. “However, if no
material issues of fact are in dispute and an appeal presents only a question of law, we apply
de novo review and are not required to view the appeal in the light most favorable to the
party opposing summary judgment.” Id.

{6}      In this case, Plaintiff alleges that the Detention Center breached its duty to “provide
adequate means and staff to monitor inmate behavior[] and to adequately train and supervise
staff.” In its motion for summary judgment, County Defendants provided evidence through
expert testimony that the Detention Center met or exceeded accepted standards in the adult
detention corrections field, including with regard to staffing and monitoring of
detainees/inmates, classification of inmates, and with respect to its policies, procedures and
post orders. Further, the only expert testimony on the issue of negligence established that
County Defendants did not fall below the standard of care in the industry with regard to the
management and construction of the Detention Center. In her response, Plaintiff did not
offer any competent evidence to rebut County Defendants’ expert testimony and thus failed
to create a genuine issue of fact. Instead, Plaintiff argued below, as she does on appeal, that
she neither needed an expert to establish any standard of care County Defendants owed her
nor any duty breached and that the district court erred in ruling that she needed an expert to
help establish these facts. We lack case law on this topic. Both Plaintiff and County
Defendants relied on out-of-jurisdiction cases. For the reasons that follow, we are persuaded
that this case most resembles cases where courts ruled that expert testimony was necessary,
and we are persuaded by their reasoning. See Hughes v. District of Columbia, 425 A.2d
1299, 1303 (D.C. 1981). Although a case in which an expert is not necessary to establish
negligence in a prison context may exist, it is not this case.

{7}      Rule 11-702 NMRA (1994) provides that, “if scientific, technical[,] or other
specialized knowledge will assist the trier of fact to understand the evidence or to determine
a fact in issue, a witness qualified as an expert may testify thereto in the form of an opinion.”
Mott v. Sun Country Garden Prods., Inc., 1995-NMCA-066, ¶ 34, 120 N.M. 261, 901 P.2d
192 (alteration, internal quotation marks, and citation omitted). If a fact in issue is
understandable by an average lay juror, “expert opinion testimony is not necessary.” Id.

{8}     In Hughes, the court determined that “[t]he question of whether prison officials acted

                                               3
reasonably to secure the safety of an inmate is not one within the realm of the everyday
experiences of a lay person.” 425 A.2d at 1303. Hughes concerned an inmate who brought
a negligence suit after being assaulted in prison, claiming that failure to return him to
protective custody after he had complained of an incident at work and requested a work
change was negligent. Id. at 1300. After the evidence was presented to a jury, the court
directed a verdict for the correctional institution on the basis that the plaintiff had failed to
establish the acceptable standard of care by expert testimony. Id. at 1303. The court held
that, because “[t]he reasonably prudent juror cannot be expected to appreciate the
ramifications of prison security as well as the parallel considerations involving the
safekeeping of prisoners, and therefore, whether, under given circumstances, reasonable care
was exercised[,]” expert testimony or other evidence was needed to establish the standard.
Id. The Hughes court also made it clear that a plaintiff must demonstrate negligence by
more than the mere existence of the event. Id.

{9}     Other courts have adopted the Hughes reasoning. The Tennessee Court of Appeals
held that the manner of an inmate’s death did not alone establish that the facility was
negligent. It stated that “[e]xcept in the most obvious cases, whether the prison officials
acted reasonably to protect a prisoner’s safety requires expert proof or other supporting
evidence.” Cockrum v. State, 843 S.W.2d 433, 438 (Tenn. Ct. App. 1992). Other Tennessee
cases reiterate this premise and have ruled that, “[i]f the conduct of prison staff is not clearly
improper, expert proof delineating the precise scope of the staff’s duty and evaluating the
adequacy of the staff’s conduct is essential[,] the claimant cannot recover without it.”
Atkinson v. State, 337 S.W.3d 199, 205 (Tenn. Ct. App. 2010).

{10} Courts that have not required expert testimony for prison-related negligence have
done so when less technical issues are at hand. In Morgan v. District of Columbia, the
question was severe overcrowding of the jails as related to a specific instance of inmate
violence. 824 F.2d 1049, 1062 (D.C. Cir. 1987). The Morgan court held that “[t]he mere
fact that prison security is normally left to the discretion of prison administrators does not,
a fortiori, prevent the trial court from determining that a reasonable jury could conclude
upon egregious facts that the administrators abused their discretion.” Id. In a related New
Mexico case, we have held that a court could find a jail breached its duty to inmates when
an inmate was “severely, cruelly, inhumanly, and brutally battered for three nights without
intervention by any jail personnel[,]” and the noise of the beating “was so loud that it . . .
could be heard throughout the jail.” Methola v. Cnty. of Eddy, 1981-NMCA-048, ¶ 15, 96
N.M. 274, 629 P.2d 350 (internal quotation marks omitted).

{11} The cases that Plaintiff relies on are further examples of the obvious cases where
expert evidence is not necessary because the facts at issue are understandable by an average
lay juror. In Adorno v. Corr. Servs. Corp., 312 F. Supp. 2d 505 (S.D.N.Y. 2004), the New
York district court held that lay jurors did not need expert testimony to determine whether
a halfway house had notice that it was continuing to employ a person who was sexually
abusing female residents. Id. at 515. Similarly, in a Texas case where an inmate died after
a brutal beating that was observed by guards, the court held that the decedent’s family was

                                                4
not required to put on expert testimony regarding the standard of care in prisons. Wackenhut
Corr. Corp. v. de la Rosa, 305 S.W.3d 594, 623-24 (Tex. Ct. App. 2009) (“The only issue
at trial was . . . how far [the prison] had to go to detect the possession of weapons by
inmates. Specialized knowledge was not required to show that a search should be performed
on some or all inmates at a given time. The jury was presented with simple explanations of
[the prison’s] reason for not searching every inmate at the crash gate, including preventing
inmate congestion that could lead to assaults. The jury was fully able to understand these
arguments.”).

{12} Here, Plaintiff asserts that the area in which she was assaulted was an architectural
blind spot in the facility that could not be covered by video surveillance, as well as not being
directly monitored by guards. Plaintiff argues that jurors can use common knowledge to find
it negligent to allow inmates in an area that is not properly subject to surveillance or
monitored, either due to the existence of a blind spot or lack of guards. We disagree and
conclude that such a contention requires expert testimony. Plaintiff did not provide any such
testimony as to the standard of care for the monitoring of inmates, jail design, video
surveillance, or any other factors that underlie such a standard. Wilkins v. District of
Columbia, 879 F. Supp. 2d 35, 38, 41-42 (D.D.C. 2012) (“According to [the] plaintiff’s
expert witness, this failure to monitor inmate movements violated national standards for the
operation of jails. . . . The question of whether prison officials acted reasonably to secure
the safety of an inmate is not one within the realm of the everyday experiences of a lay
person, so [the plaintiff] was required to present expert testimony to establish the standard
of care.” (internal quotation marks and citations omitted)); Estate of Belden v. Brown Cnty.,
261 P.3d 943, 969 (Kan. Ct. App. 2011) (“There is nothing so obviously wrong with or
deficient in the Brown County jail policies and practices that we could suggest a jury
reasonably might find them to be negligent simply by reading them and considering their
application to these circumstances, even with a generous dollop of common sense.”);
Phillips v. District of Columbia, 714 A.2d 768, 773 (D.C. 1998) (stating that, in an inmate
suicide case, “the plaintiff was required to establish the applicable standard of care, as well
as a breach thereof, by expert testimony”). We hold that, in order for a jury to make a
decision regarding the standard of care of the monitoring by prison officials in this instance,
expert testimony is required. Contrary to Plaintiff’s argument, the mere fact that she was
assaulted does not prove that the prison monitoring fell below the required standard of care.

B.      Discovery Issues

{13} During the discovery phase of the case, Plaintiff requested certain information
dealing with the male side of the Detention Center and the mental health records of Inmate
Defendants. A protective order was drafted by County Defendants in order to ensure the
privacy of some of the protected information Plaintiff had requested. Counsel for Plaintiff
did not sign the protective order for several months, delaying the production of the protected
documents. At a hearing, the district court determined that the information Plaintiff sought
about the male side of the Detention Center was not sufficiently related to her case to permit
discovery and decided that she needed permission from Inmate Defendants before County

                                               5
Defendants could release their mental health records. The district court denied her request
to extend discovery based on the late production caused by her own delay in signing the
protective order.

{14} Plaintiff also argues that the district court erred in denying her certain matters in
discovery. Specifically, she requested and was denied discovery regarding the male side of
the Detention Center and Inmate Defendant Moreno’s mental health records. We review a
district court’s discovery orders for an abuse of discretion. See Estate of Romero ex rel.
Romero v. City of Santa Fe, 2006-NMSC-028, ¶ 6, 139 N.M. 671, 137 P.3d 611. Our basic
discovery rule, Rule 1-026(B)(1) NMRA (2009), states that “[p]arties may obtain discovery
of any information, not privileged, which is relevant to the subject matter involved in the
pending action. The information sought need not be admissible at the trial if the information
sought appears reasonably calculated to lead to the discovery of admissible evidence.”

1.      Male Side of Detention Center

{15} In her briefs to this Court, Plaintiff relies on Rule 1-026(B)(1)’s broad presumption
in favor of discovery and argues that the male side of the Detention Center was relevant to
her case due to potentially similar blind spots and monitoring and the Detention Center’s
alleged notice of danger and failure to take corrective action after a male inmate was killed
in the showers in an alleged blind spot. County Defendants argue that, because the male
inmate’s death was gang-related and occurred in the showers, it had nothing to do with the
attack on Plaintiff. We do not consider Plaintiff’s request for records of all male-on-male
violence because she does not address that topic on appeal.

{16} “The pretrial discovery rules, including Rule [1-026], intend a liberal pretrial
discovery, to enable the parties to obtain the fullest possible knowledge of the facts before
trial. Notwithstanding objection to the depositions, the presumption is in favor of
discovery.” Marchiondo v. Brown, 1982-NMSC-076, ¶ 13, 98 N.M. 394, 649 P.2d 462.
However, “[a]lthough the rules favor allowance of liberal pretrial discovery, the trial court
is vested with discretion in determining whether to limit discovery.” DeTevis v. Aragon,
1986-NMCA-105, ¶ 10, 104 N.M. 793, 727 P.2d 558 (citation omitted). Apart from broad
language calling for liberal discovery, Plaintiff fails to cite any authority to support her claim
that the male side of the Detention Center was vital to her case, and the denial of discovery
regarding it was in error. She instead states that information about an attack in a blind spot
on the male side of the Detention Center would be relevant to whether County Defendants
were on notice that their monitoring system put inmates at risk for being attacked in a blind
spot. However, Plaintiff points us to no authority or expert opinion suggesting a duty to
eliminate or monitor all blind spots. Because Plaintiff fails to cite any authority to support
her claim that the district court abused its discretion in denying her discovery about the male
side of the Detention Center, we defer to the district court’s judgment and conclude that the
district court did not abuse its discretion.

2.      Mental Health Records of Inmate Defendant Moreno

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{17} Plaintiff also contends that she was entitled to discovery regarding the mental health
records of one of her attackers, Inmate Defendant Moreno, as it would be important in
determining whether Inmate Defendant Moreno was properly classified and housed with
Plaintiff. She further alleges that it was error for County Defendants to refuse to produce
the mental health files of Inmate Defendants, particularly since they had already filed an
unopposed protective order.

{18} The district court denied discovery of the mental health records as protected by state
and federal law and outside the scope of the protective order, as well as unlikely to lead to
discoverable evidence. Without a release from Inmate Defendants, the district court would
not order production of the mental health records. The only protective order in this case was
requested by County Defendants in April 2010. The order was not signed by Plaintiff’s
counsel for several months and was eventually filed on October 13, 2010. The deadline for
discovery was November 11, 2010, but Plaintiff’s counsel requested an extension because
her late signing of the protective order meant that she had only begun to receive much of her
requested discovery.

{19} Generally, mental health records are privileged under New Mexico law. Rule 11-
504(B) NMRA (1995) (“A patient has a privilege to refuse to disclose and to prevent any
other person from disclosing confidential communications, made for the purposes of
diagnosis or treatment of the patient’s physical, mental[,] or emotional condition . . . among
the patient, the patient’s physician or psychotherapist, or persons who are participating in
the diagnosis or treatment under the direction of the physician or psychotherapist[.]”).
Plaintiff does not argue that any exception to this privilege applies for Inmate Defendant
Moreno’s mental health records. Plaintiff was permitted other information regarding
classification of Inmate Defendant Moreno and the other Inmate Defendants, which was
separate from the mental health records. Plaintiff does not clarify the difference between
these records, and why she needed the ones she was denied. To the extent that she argues
the protective order adequately protects the confidentiality of the records, we agree with the
district court that County Defendants cannot release Inmate Defendant Moreno’s mental
health records without her consent, and her ambiguous request did not make it clear if she
was attempting to obtain unprivileged records. NMSA § 43-1-19(A) (2009) (“Except as
otherwise provided[,] . . . no person shall, without the authorization of the client, disclose
or transmit any confidential information from which a person well acquainted with the client
might recognize the client as the described person[.]” (emphasis added)). Plaintiff’s delay
in pursuing that authorization from Inmate Defendant Moreno deprived her of the
opportunity to obtain an expert regarding Inmate Defendant Moreno’s mental health. The
district court did not abuse its discretion in denying discovery of Inmate Defendant
Moreno’s mental health records.

III.   CONCLUSION

{20} Because expert testimony was required in order to establish the prison industry
standards in monitoring inmates, and Plaintiff provided none, we affirm the district court’s

                                              7
award of summary judgment. We also hold that there was no abuse of discretion in the
district court’s discovery rulings regarding the male side of the Detention Center and Inmate
Defendant Moreno’s mental health records.

{21}   IT IS SO ORDERED.

                                              ____________________________________
                                              RODERICK T. KENNEDY, Chief Judge

WE CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

____________________________________
LINDA M. VANZI, Judge




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