       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: _____________

Filing Date: May 6, 2014

Docket No. 31,723

ANTHONY and CHENG SILVA,
Individually and as Personal
Representatives of the Estate of
SUSAN SILVA, Deceased, and
ANTHONY SILVA, JR., and
JINLEN SILVA, as Surviving
Siblings of SUSAN SILVA,

       Plaintiffs-Appellees,

v.

LOVELACE HEALTH SYSTEM, INC.,
and DR. ISABEL LOPEZ-COLBERG,

       Defendants-Appellants.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
William A. Sanchez, District Judge

Bowles and Crow
Jason Bowles
B. J. Crow
Albuquerque, NM

Foster, Rieder & Jackson, P.C.
Travis G. Jackson
Albuquerque, NM

for Appellees

Domenici Law Firm, P.C.
Pete V. Domenici, Jr.
Lorraine Hollingsworth
Albuquerque, NM


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Rodey, Dickason, Sloan, Akin & Robb, P.A.
Edward R. Ricco
Jocelyn Drennan
Albuquerque, NM

for Appellants

                                          OPINION

FRY, Judge.

{1}     In this case, we address the doctrine of independent intervening cause in
circumstances where the evidence was conflicting as to whether the conduct of Plaintiffs’
relative, the decedent, was (1) intentional and (2) foreseeable. Plaintiffs sued Lovelace
Health System, Inc., and Dr. Isabel Lopez-Colberg (collectively, Defendants) for the
wrongful suicide death of Susan Silva (Decedent) on the theory that Dr. Lopez-Colberg
negligently prescribed Decedent twelve months of antidepressant refills without requiring
follow-up visits while knowing that the drug may cause suicidality in patients. Defendants
raised several defenses to Plaintiffs’ claims, including the defense that Decedent’s overdose
on antidepressants and resulting suicide constituted an independent intervening cause that
eliminated any liability they might have for their own negligence. The district court refused
to instruct the jury on this defense. On appeal from a jury verdict against them, Defendants
argue that the district court erred in (1) refusing to instruct the jury on suicide as an
independent intervening cause, and (2) denying Defendants’ motion for a directed verdict
on Plaintiffs’ loss of consortium claims.

{2}     On the first issue, we acknowledge that, in cases involving only the negligence of the
parties, our Supreme Court has virtually eliminated the defense of independent intervening
cause. See Torres v. El Paso Elec. Co., 1999-NMSC-029, ¶ 13,127 N.M. 729, 987 P.2d 386,
overruled on other grounds by Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 33, 134 N.M.
43, 73 P.3d 181. However, independent intervening cause may still apply in cases where
there are intentional or criminal acts or forces of nature that are unforeseeable. In this case,
we conclude that the evidence gave rise to reasonable inferences that Decedent’s acts of
overdosing on antidepressants and committing suicide may have been intentional rather than
negligent and that these acts may have been unforeseeable. This evidence could
theoretically lead a properly instructed jury to conclude that these intentional acts constituted
an independent intervening cause that interrupted and negated any negligence by Dr. Lopez-
Colberg in prescribing the drug to Decedent. We therefore hold that the district court erred
by failing to instruct the jury on Decedent’s suicide as an independent intervening cause.
It was for the jury, not the district court, to determine whether Decedent’s suicide was
intentional and foreseeable to Dr. Lopez-Colberg. We therefore reverse and remand.

{3}     On the second issue, which we address in the event it arises on remand, we hold that
Plaintiffs failed to show the degree of mutual dependence required to support their loss of

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consortium claims.

I.     BACKGROUND

{4}     This wrongful death case is based on the alleged negligent treatment of Decedent by
Defendants. As stated above, the theory of Plaintiffs’ case was that Dr. Lopez-Colberg gave
Decedent a twelve-month prescription for paroxetine (Paxil), which allegedly “causes
suicidality,” and failed to follow up or monitor Decedent. As a result, Plaintiffs claimed,
Decedent “engaged in a self-mutilation suicide.” The evidence presented to the jury at trial
included the following.

{5}    In May 2004, Dr. Lopez-Colberg began treating Decedent and diagnosed her with
anxiety. Dr. Lopez-Colberg prescribed Paxil, a selective serotonin re-uptake inhibitor,
commonly used to treat depression and anxiety, at ten milligrams per day. During the next
seven months, Dr. Lopez-Colberg saw Decedent four times to address persistent symptoms,
and she adjusted her Paxil dosage to twenty milligrams. In November 2004, Decedent
changed insurance carriers and began treatment with another physician.

{6}      In October 2005, Decedent returned to Dr. Lopez-Colberg’s care. When she returned
to care, Decedent was taking twenty milligrams of Paxil a day, plus Ativan for breakthrough
anxiety. Dr. Lopez-Colberg noted that Decedent had “serotonin syndrome,” which she
clarified meant that Decedent was experiencing serotonin withdrawal when she forgot to
take her Paxil. Dr. Lopez-Colberg also noted that Decedent was experiencing many
psychosocial stressors, which Decedent declined to detail. Decedent’s use of Ativan
indicated to Dr. Lopez-Colberg that Decedent’s anxiety was not under control, and Dr.
Lopez-Colberg wanted to increase the Paxil dosage. Dr. Lopez-Colberg wrote Decedent two
prescriptions: one month’s worth of Ativan and one year’s worth of Paxil (one month’s
worth with eleven authorized refills). At this point, Decedent had been on twenty milligrams
of Paxil for seventeen months. After Dr. Lopez-Colberg prescribed the medication, there
were no follow-up appointments scheduled, although Decedent was to return “when she
fe[lt] that she would like to increase the Paxil.”

{7}     According to a June 2005 FDA advisory, “[s]everal recent publications suggest the
possibility of increased risk for suicidal behavior in adults being treated with
antidepressants.” However, Dr. Lopez-Colberg’s patient notes for Decedent’s visits did not
indicate that Decedent had any thoughts of suicide.

{8}      Decedent’s friends and family reported that Decedent began exhibiting very strange
behavior in April 2006, which was over five months after Decedent’s last visit with Dr.
Lopez-Colberg. On April 13, 2006, Decedent was found dead in her apartment, having taken
her own life. Toxicology analysis determined that Decedent had twenty-two times the
therapeutic dose of Paxil in her system at the time of her death. It was determined that she
had obtained thirty Paxil tablets three days prior to her death, and there were no pills left in
that thirty-day prescription.

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{9}    Decedent’s parents filed suit asserting negligence and wrongful death claims against
Defendants. Decedent’s parents and two surviving siblings also asserted claims for loss of
consortium. Plaintiffs’ claims against Defendants were tried to a jury, and Defendants
argued that the jury should be instructed on their theory that Decedent’s suicide constituted
an independent intervening cause that absolved them of liability. The district court refused
the requested instructions, and the jury returned a verdict for Plaintiffs.

{10} On appeal, Defendants argue that the district court erroneously refused to instruct the
jury on their theory that Decedent’s suicide was an independent intervening cause. They
also argue that the district court erred in denying their motion for directed verdict on
Plaintiffs’ claims for loss of consortium. We address each contention in turn.

II.    DISCUSSION

A.     Independent Intervening Cause Instruction

{11} Defendants argued below and on appeal that Decedent’s death resulted from the
intentional and unforeseeable act of suicide and, therefore, that the suicide was an
independent intervening cause that released them from all liability. As we explain, we agree
with Defendant that the jury should have received instruction on this defense theory.

{12} In the district court, Defendants tendered three jury instructions relevant to this
theory. The first requested instruction was based on UJI 13-305 NMRA, the definition of
causation, which included the optional language relevant to independent intervening cause
(italicized below):

       An act or omission is a “cause” of injury if unbroken by an independent
       intervening cause, it contributes to bringing about the injury and if the injury
       would not have occurred without it. It need not be the only explanation for
       the injury, nor the reason that is nearest in time or place. It is sufficient if it
       occurs in combination with some other cause to produce the result. To be a
       “cause[,”] the act or omission, nonetheless, must be reasonably connected as
       a significant link to the injury.

(Emphasis added.) Second, Defendants requested an instruction based on UJI 13-306
NMRA, the definition of independent intervening cause: “An independent intervening cause
interrupts and turns aside a course of events and produces that which was not foreseeable as
a result of an earlier act or omission.” Third, Defendants tendered an instruction based on
Johnstone v. City of Albuquerque, 2006-NMCA-119, ¶¶ 10-11, 140 N.M. 596, 145 P.3d 76,
which holds that suicide is generally an independent intervening cause unless one of two
exceptions is satisfied. The district court refused to instruct the jury on independent
intervening cause, stating, “I really don’t see that these facts fit.”

1.     Standard of Review

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{13}    We review a district court’s refusal to give a proffered instruction de novo to
determine whether the instruction correctly stated the law and was supported by the evidence
presented at trial. See Benavidez v. City of Gallup, 2007-NMSC-026, ¶ 19, 141 N.M. 808,
161 P.3d 853. A party is entitled to have the jury instructed on the party’s theory if there is
substantial evidence to support it. City of Belen v. Harrell, 1979-NMSC-081, ¶ 14, 93 N.M.
601, 603 P.2d 711. In determining whether the district court erroneously denied Defendants’
requested instructions, we first review the law relevant to the theory of independent
intervening cause.

2.      Torres and Chamberland v. Roswell Osteopathic Clinic, Inc., 2001-NMCA-045,
        130 N.M. 532, 27 P.3d 1019: A Plaintiff’s Negligence or the Absence of a
        Defendant’s Causation in Fact Cannot Support an Independent Intervening
        Cause Defense

{14} Our appellate courts have recently virtually eliminated the use of the doctrine of
independent intervening cause as a defense in cases involving only allegedly negligent (as
opposed to intentional) conduct by the parties because the doctrine is incompatible with our
system of comparative negligence. See Torres, 1999-NMSC-029, ¶ 18 (holding that “the
jury shall not be instructed on independent intervening cause for a plaintiff’s alleged
comparative negligence”); Chamberland, 2001-NMCA-045, ¶ 19 (holding that a jury
instruction on the doctrine is inappropriate where the issues involve “no more than a simple
dispute over causation in fact (i.e., whether the defendant’s negligence did or did not cause
in fact the injuries suffered by the plaintiff)”). As explained in UJI 13-306, “[a]n
independent intervening cause interrupts and turns aside a course of events and produces that
which was not foreseeable as a result of an earlier act or omission.” Torres and
Chamberland explain that in cases involving only negligent conduct, the question is strictly
one of causation, i.e., whose negligent conduct, separately or in combination, caused the
plaintiff’s injury. Consequently, instructing the jury on independent intervening cause in
such cases overemphasizes the negligence of parties other than the defendants. See Torres,
1999-NMSC-029, ¶ 18 (explaining that an instruction that a plaintiff’s negligence could
constitute an independent intervening cause “unduly emphasize[s] a defendant’s attempt to
shift fault to a plaintiff”). In the case before us, the district court relied on Torres in refusing
to instruct the jury on the doctrine.

{15} The circumstances in Torres demonstrate why it is inappropriate to base the defense
of independent intervening cause on the plaintiff’s negligence. In that case, the plaintiff was
electrocuted when he touched a metal rod to a high voltage conductor while installing a roof
for his employer. Id. ¶ 4. He sued the electric co-op that had installed and maintained the
conductor. Id. ¶ 5. The co-op claimed that, even if it had been negligent, the negligence of
the plaintiff and others superseded its negligence. Id. ¶ 8. On appeal from a jury verdict in
favor of the co-op, our Supreme Court held that instructing the jury on the co-op’s defense
of independent intervening cause was reversible error. Id. ¶ 2. The Court reasoned that, in
a case where a defendant argues that the plaintiff’s negligence was an independent
intervening cause, the jury instruction on causation alone will suffice because an instruction

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on independent intervening cause “unduly emphasize[s] a defendant’s attempt to shift fault
to a plaintiff.” Id. ¶ 18. “[T]his undue emphasis creates an unacceptable risk that the jury
will inadvertently apply the common law rule of contributory negligence[.]” Id. The Court
concluded that “the jury shall not be instructed on independent intervening cause for a
plaintiff’s alleged comparative negligence.” Id. Notably, however, the Court cautioned that
its analysis “does not extend to intentional tortious or criminal acts or forces of nature.” Id.
¶ 15 n.2 (emphasis added).

{16} Two years after Torres was decided, this Court in Chamberland further refined the
role played by the doctrine of independent intervening cause in cases involving only
negligent conduct and “plain vanilla” causation. The issue in Chamberland involved
whether the defendants’ conduct was or was not the cause in fact of the plaintiff’s injury.
The plaintiff sued two doctors and their clinic for failing to diagnose his appendicitis before
his appendix ruptured and caused an abscess. 2001-NMCA-045, ¶¶ 2-5. The defendants
argued that the plaintiff’s appendicitis was an independent intervening cause “that arose
independently of the care provided by [the d]efendants” because the plaintiff did not present
with any of the classic symptoms of appendicitis until after the defendants had examined
him. Id. ¶ 12. In other words, they maintained that the plaintiff did not have appendicitis
when they examined him but only developed it sometime after their examination. On appeal
from a defense verdict, we reversed on the ground that it was error to instruct the jury on
independent intervening cause. Id. ¶ 1. Although there was no issue of comparative
negligence, as there was in Torres, there was “the potential for juror confusion over
independent intervening cause,” Chamberland, 2001-NMCA-045, ¶ 16, because the issues
involved “no more than a simple dispute over causation in fact (i.e., whether the defendant’s
negligence did or did not cause in fact the injuries suffered by the plaintiff).” Id. ¶ 19. Thus,
“the issue for the jury [was] causation alone, not independent intervening cause.” Id.

{17} Despite the limitations imposed in Torres and Chamberland, both cases anticipated
that there could be factual circumstances where the doctrine would be relevant and
applicable. As we have already noted, Torres carved out an exception to its limitation on
the applicability of independent intervening cause, stating that the limitation “does not
extend to intentional tortious or criminal acts or forces of nature.” 1999-NMSC-029, ¶ 15
n.2. Similarly, this Court in Chamberland shed light on the circumstances in which the
doctrine could be applicable. In that case, we explained the rationale behind the doctrine,
which is that under some circumstances where “a force of nature, an intentional tort, or a
criminal act” follows the defendant’s negligent act, 2001-NMCA-045, ¶ 18, the potential
scope of the defendant’s liability must be limited by the remoteness or unforeseeability of
the intervening force. Id. ¶ 17. The instruction on independent intervening cause “is based
on a policy determination that [the defendant’s] liability should cease at the point where an
independent cause [i.e., a force of nature or an intentional or criminal act] intercepts and
interrupts the normal progression of causation, because it produces an injury that . . . was not
foreseeable as a result of an earlier act or omission.” Id. (internal quotation marks and
citation omitted).


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{18} We distill three primary lessons from Torres and Chamberland. First, if the
defendant is claiming only that the plaintiff’s negligence caused the plaintiff’s injury, it is
reversible error to instruct the jury on independent intervening cause because the issues
involve comparative negligence. Second, even if there is no issue involving comparative
negligence but the issue revolves only around whether the defendant’s negligence was the
cause in fact of the plaintiff’s injury, then it is error to give an instruction on independent
intervening cause. Third, an instruction on independent intervening cause may be
appropriate if the issue involves a claim that an intentional or criminal act or an act of nature
that is unforeseeable intervenes and disrupts the chain of causation set in motion by a
defendant’s negligent conduct. We conclude that the third concept applies in the present
case, as illustrated by the two New Mexico cases that have addressed suicide as an
independent intervening cause.

3.      Suicide as an Independent Intervening Cause

{19} The first case addressing suicide as an independent intervening cause is Harrell,
1979-NMSC-081, ¶ 14, which was decided before Torres. In that case, the decedent, a
minor, was arrested and taken to jail, where he told his mother that he would kill himself
before he would let himself be taken to the penitentiary. Harrell, 1979-NMSC-081, ¶¶ 5-6.
After the mother told a jail official about her son’s threat, the decedent hanged himself in his
cell. Id. ¶¶ 6-7, 11. The mother sued the city, asserting that it was responsible for jail
officials’ failure to prevent the suicide. Id. ¶ 1. On appeal from judgment in the mother’s
favor, our Supreme Court held that it was error for the district court to refuse to instruct the
jury on independent intervening cause. Id. ¶ 20. The Court explained that, while “it cannot
be said that in every case suicide is an independent intervening cause as a matter of law[,]
. . . independent intervening cause [is a] question[] for the jury, unless, as a matter of law,
there is no evidence upon which to submit the issue to the jury.” Id. ¶¶ 18, 19.

{20} The second relevant case involving suicide—decided after Torres—is Johnstone,
upon which Defendants in the present case based one of their requested jury instructions.
In Johnstone, the defendant’s minor stepdaughter used his gun to kill herself, and her estate
sued him for his alleged negligence in leaving the gun unattended. 2006-NMCA-119, ¶ 1.
We affirmed summary judgment in favor of the defendant. Id. In our analysis, we relied on
Harrell to observe that “[g]enerally, suicide is an independent intervening cause of death that
is not foreseeable and absolves a defendant of civil liability unless, as a matter of law, there
is no evidence upon which to submit the issue to the jury.” Johnstone, 2006-NMCA-119,
¶ 10 (internal quotation marks and citation omitted).

{21} However, Johnstone noted two exceptions to the general proposition that suicide is
an independent intervening cause:

        The first exception allows liability where the actor’s tortious conduct induces
        a mental illness in the decedent from which the death results. The second is
        a duty that results from a special relationship between the decedent and the

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       defendant, that presumes or includes knowledge of the decedent’s risk of
       suicide.

Id. ¶ 11 (citation omitted). In other words, these exceptions can make suicide foreseeable.
The special relationship contemplated by the second exception “typically involve[s a]
treatment relationship[], such as mental health professionals and their patients, and persons
having direct custody and control over the decedent.” Id. ¶ 14. Because there was no such
relationship in Johnstone and because the defendant had no reason to suspect the decedent’s
intention to commit suicide, the suicide was unforeseeable as a matter of law, and summary
judgment was appropriate. Id. ¶¶ 13-14.

{22} Considering Harrell and Johnstone in the context of Torres and Chamberland, we
extrapolate two principles applicable in the present case. First, generally speaking, suicide
is an intentional act that is unforeseeable. See, e.g., Solarzano v. Bristow, 2004-NMCA-136,
¶ 14, 136 N.M. 658, 103 P.3d 582 (defining suicide as “a voluntary, deliberate, and
intentional self-destruction by someone of sound mind”). Thus, if the subject injury in a case
is a suicide, that circumstance “gives rise to an instruction on independent intervening cause
which is an affirmative defense that releases the defendant of all liability.” Chamberland,
2001-NMCA-045, ¶ 18. Second, evidence of one of the two exceptions stated in Johnstone
can transform suicide into a foreseeable event. In other words, if the plaintiff can persuade
the jury either (1) that the defendant induced the decedent’s mental illness that resulted in
the suicide or (2) that the defendant and the decedent were in a special relationship that
included knowledge of the decedent’s risk of suicide, then the plaintiff has established
foreseeability, and the defense of independent intervening cause fails. The touchstone of the
defense’s success or failure is whether the suicide was foreseeable, a question the jury must
decide if the evidence of foreseeability is conflicting.

4.     The Present Case in Context

{23} The case before us presents an amalgam of legal theories reflecting the teachings of
both the Torres/Chamberland cases and the Harrell/Johnstone cases. This is because, in
addition to raising the defense of independent intervening cause based on Decedent’s
intentional acts, Defendants also raised a defense related to Decedent’s negligence. In order
to explain the distinction between these defenses, we use the “progression of causation”
model discussed in Chamberland. 2001-NMCA-045, ¶ 17. Starting with Plaintiffs’ basic
theory that Dr. Lopez-Colberg was negligent in prescribing twelve months’ worth of Paxil
to Decedent without requiring follow-up appointments, this allegedly negligent act started
the chain of causation. Along this continuum of causation, Defendants argued that Decedent
was negligent in failing to schedule a follow-up appointment with Dr. Lopez-Colberg when
she began to exhibit strange behavior in April 2006 and that this negligence contributed to
cause the ultimate suicide. Had this evidence, directed at the parties’ comparative fault, been
the only evidence presented at trial in Defendants’ defense, the principles of Torres and
Chamberland would clearly apply and preclude a jury instruction on independent
intervening cause because the evidence would have presented only an issue of comparative

                                              8
negligence. See Torres, 1999-NMSC-029, ¶ 18 (“[T]he jury shall not be instructed on
independent intervening cause for a plaintiff’s alleged comparative negligence.”).

{24} But Defendants also presented evidence that Decedent’s conduct was intentional and
unforeseeable. This evidence supported the defense of independent intervening cause, a
defense that, if established, would interrupt and turn aside the progression of causation and
eliminate Defendants’ liability for Dr. Lopez-Colberg’s acts of negligence. This included
evidence giving rise to inferences that (1) Decedent intentionally overdosed on Paxil in the
days before her death, which induced the psychotic state that caused her to commit suicide;
and (2) Decedent’s intentional actions were not foreseeable to Dr. Lopez-Colberg under the
Johnstone exceptions. We review this evidence below.

{25} Regarding Decedent’s intentional acts, there was evidence before the district court
suggesting that, in the three days before her death, Decedent had ingested an entire thirty-day
supply of Paxil and that this overdose induced psychosis. In the days before she died and
about five months after her last visit with Dr. Lopez-Colberg, Decedent “was behaving
psychotically,” according to one of Plaintiffs’ experts. The expert based his assessment on
the testimony of people close to Decedent, including the testimony of Decedent’s co-worker
and friend that two days before she died, Decedent woke the co-worker and her husband
very early in the morning by screaming and pounding on their window. Prior to this
incident, the co-worker had not been concerned that Decedent was depressed or worried that
Decedent might hurt herself. Decedent’s family, who had frequent contact with her, did not
think that Decedent was suicidal prior to her death. But two days before she died, Decedent
called her sister and sounded “weird” and “not like herself.” About the same time, Decedent
visited her parents’ home and told them that she felt funny but that she had a “little pill” that
she was going to take and that she would feel better.

{26} A day or two after this visit, Decedent’s family became concerned because they had
not spoken to her for a couple of days. Decedent’s cousin went to her apartment to check
on her and found her body. Decedent had cut her arms, legs, and throat and had slowly bled
to death. Decedent was found to have “[twenty-two] times the therapeutic dose of Paxil
when she had her toxicology report at death.” She had obtained a thirty-day refill of Paxil
three days before her death, and there were no pills left in that prescription. In the opinion
of Plaintiffs’ expert, Dr. Ronald Maris, Paxil contributed to the psychosis Decedent was
experiencing just before she died, and she had a “near fatal dose of antidepressants in her
body.”

{27} This evidence supported the view that Decedent’s overdose and suicide were
intentional. Therefore, an instruction on independent intervening cause would only be
improper if Decedent’s intentional acts were foreseeable to Dr. Lopez-Colberg as a matter
of law. See Johnstone, 2006-NMCA-119, ¶ 10 (“Generally, suicide is an independent
intervening cause of death that is not foreseeable and absolves a defendant of civil liability
unless, as a matter of law, there is no evidence upon which to submit the issue to the jury.”
(internal quotation marks and citation omitted)); Harrell, 1979-NMSC-081, ¶ 19

                                               9
(“[I]ndependent intervening cause [is a] question[] for the jury, unless, as a matter of law,
there is no evidence upon which to submit the issue to the jury.”). Foreseeability is generally
a fact question for the jury. See Davis v. Bd. of Cnty. Comm’rs, 1999-NMCA-110, ¶ 21, 127
N.M. 785, 987 P.2d 1172 (noting, in a case involving negligent misrepresentation, that the
question of foreseeability is for the jury to decide).

{28} Foreseeability can be established through evidence of one of the two exceptions
noted in Johnstone, including the “special relationship” exception that was the focus of the
jury instruction conference in the district court.1 One element of the special relationship
exception is “knowledge of the decedent’s risk of suicide.” Johnstone, 2006-NMCA-119,
¶ 11.

{29} In this case, there appears to be no dispute that there was a special relationship
between Decedent and Dr. Lopez-Colberg. However, on Dr. Lopez-Colberg’s knowledge
of Decedent’s risk of suicide, the evidence was conflicting. On the one hand, some of the
evidence presented gave rise to the inference that Dr. Lopez-Colberg could have foreseen
Decedent’s overdose and suicide. Dr. Maris testified that Paxil is associated with increased
suicidality, i.e., suicidal ideas, preparations, attempts, and completions. He stated that the
FDA recommends monitoring a patient closely for suicidal behavior when a physician
prescribes Paxil. Plaintiffs’ other expert witness, Dr. Edward Carrington, testified that
suicide is a great concern and needs to be addressed with patients who are being treated for
anxiety, panic disorder, or depression. He opined that if Dr. Lopez-Colberg had
appropriately followed up with Decedent’s care, she may have caught one or more of the
behavioral predictors of suicide.

{30} On the other hand, some of the evidence created the inference that Decedent’s
conduct was unforeseeable. Dr. Maris testified that Decedent had very few suicide risk
factors before she started taking Paxil and that “[i]ndividual suicides are very difficult to
predict” and cannot be predicted reliably. He stated that an adverse reaction to Paxil is a
“paradoxical rare reaction.” Dr. Carrington testified that, as of Decedent’s last visit with Dr.
Lopez-Colberg in October 2005, Decedent had been on Paxil for seventeen months straight,
and this does not fit into the subset of patients who are at risk for suicidality. He further
opined that the fact that Decedent was taking Paxil as of October 2005 should not, in and of
itself, have caused Dr. Lopez-Colberg to conclude that Decedent was at risk for suicide.

{31} Defendants’ expert, Dr. Thomas Gross, testified that, as of October 2005, there was
really no reason for Dr. Lopez-Colberg to have concern about continuing Paxil, which
Decedent had already been taking for a long time. He also testified that there was nothing
in Dr. Lopez-Colberg’s records that would indicate that Decedent was depressed or at risk


       1
        While we focus on the special relationship exception in this Opinion, we do not
foreclose the possibility that Plaintiffs may introduce evidence of the other Johnstone
exception of “induced mental illness” on retrial.

                                              10
for suicide, and he opined that Dr. Lopez-Colberg could not have anticipated that Decedent
was going to commit suicide.

{32} This conflicting evidence created a fact question for the jury to decide. Our courts
trust juries to decide fact questions if they are appropriately guided by instructions from the
district court. In this case, the evidence raised issues about (1) whether Decedent’s conduct
in overdosing was intentional and (2) whether Decedent’s suicide was foreseeable to Dr.
Lopez-Colberg. But the jury had no instruction telling it that it could determine these
questions. And it had no guidance as to what the result would be if it found that the
Decedent’s conduct was intentional and unforeseeable.

{33} Defendants presented evidence supporting their theory that Decedent’s intentional
acts were unforeseeable, and this evidence took this case outside the limitations imposed by
Torres and Chamberland. As a result, Defendants were entitled to an instruction on their
theory that Decedent’s intentional overdose of Paxil and ensuing suicide “interrupt[ed] and
turn[ed] aside” the chain of causation initiated by Dr. Lopez-Colberg’s alleged
negligence—her prescribing a year’s worth of Paxil without requiring follow-up visits—and
produced her death, which was an unforeseeable result of Dr. Lopez-Colberg’s negligence.
UJI 13-306; see Harrell, 1979-NMSC-081, ¶ 14 (“A party is entitled to a jury instruction
upon his theory of a case if it is supported by substantial evidence.”). Because the district
court refused to instruct on this theory, we reverse. At any retrial, the district court will
instruct the jury on the defense of independent intervening cause, and the parties will have
the opportunity to argue the issue of foreseeability to the jury.

B.      Loss of Consortium - Directed Verdict

{34} Although we reverse the judgment in favor of Plaintiffs as discussed above,
nonetheless, because the issue may arise on remand, we also address Defendants’ argument
regarding the judgment awarding Plaintiffs damages on their claims for loss of consortium.

{35} Plaintiffs asserted claims for loss of consortium and presented evidence regarding the
closeness of their relationships with Decedent. At the close of Plaintiffs’ case, Defendants
moved for a directed verdict, arguing that Plaintiffs had failed to show the degree of mutual
dependence required to support their loss of consortium claims. The district court denied
the motion and instructed the jury regarding the factors relevant to loss of consortium.

1.     Standard of Review

{36} A district court’s decision on a motion for directed verdict is reviewed de novo.
McNeill v. Burlington Res. Oil & Gas Co., 2008-NMSC-022, ¶ 36, 143 N.M. 740, 182 P.3d
121. A directed verdict is a drastic measure that is generally disfavored. A district court
should not grant a motion for directed verdict unless it is clear that “the facts and inferences
are so strongly and overwhelmingly in favor of the moving party that the judge believes that
reasonable people could not arrive at a contrary result.” Melnick v. State Farm Mut. Auto.

                                              11
Ins. Co., 1988-NMSC-012, ¶ 11, 106 N.M 726, 749 P.2d 1105. Upon review of the district
court’s denial of a directed verdict, we view all of the evidence in favor of Plaintiffs, and
resolve conflicts in the evidence and include all reasonable interpretations of the evidence
in favor of Plaintiffs. See Sunwest Bank of Clovis, N.A. v. Garrett, 1992-NMSC-002, ¶ 9,
113 N.M. 112, 823 P.2d 912.

2.     Elements of a Loss of Consortium Claim

{37} To establish a loss of consortium claim, Plaintiffs were required to demonstrate two
elements: (1) that they had a “sufficiently close relationship” with Decedent, and (2) that
Defendants owed them a duty of care. Wachocki v. Bernalillo Cnty. Sheriff’s Dep’t, 2011-
NMSC-039, ¶ 5, 150 N.M. 650, 265 P.3d 701. Defendants do not challenge the second
element. The factors to be considered when determining whether Plaintiffs shared a
sufficiently close relationship with Decedent include:

       the duration of the relationship, the degree of mutual dependence, the extent
       of common contributions to a life together, the extent and quality of shared
       experience, and . . . whether the plaintiff and the injured person were
       members of the same household, their emotional reliance on each other, the
       particulars of their day[-]to[-]day relationship, and the manner in which they
       related to each other in attending to life’s mundane requirements.

Id. (omission in original) (internal quotation marks and citations omitted); see Fitzjerrell v.
City of Gallup ex rel. Gallup Police Dep’t, 2003-NMCA-125, ¶ 12, 134 N.M. 492, 79 P.3d
836 (listing “mutual dependence” factors, including “common contributions to a life
together; shared experience; living in the same household; financial support and dependence;
emotional reliance on each other; . . . and the manner in which they related to each other in
attending to life’s mundane requirements”).

{38} While acknowledging the factors to be considered in order to show a “sufficiently
close relationship,” the Supreme Court determined that “mutual dependence” is the key
element to be applied to relationships of all types. Wachocki, 2011-NMSC-039, ¶¶ 9, 10,
12. In reaching this conclusion, the Court pointed to examples of cases involving “mutual
dependence” in which “the parties relied on the relationship and could not enjoy life in the
same way once the relationship was severed.” Id. ¶¶ 10, 11 (describing a case in which
unmarried co-habitants made a long-term commitment to each other, ran a household jointly,
and made life decisions together, and a case in which a grandparent acted as a grandchild’s
caretaker).

{39} Wachocki involved two brothers who had shared a bedroom as children and an
apartment for eight months prior to the death of the older brother. Id. ¶ 2. The brothers had
been sharing the costs of rent, utilities, and groceries and had shared responsibilities for
cooking and cleaning. Id. The brothers were close, spending free time together socializing,
playing basketball, going to the movies, and going to the racetrack. Id. The younger brother

                                              12
“considered his older brother his role model and best friend” and relied on his brother “for
advice and emotional support.” Id. The Supreme Court held that this evidence was
insufficient to “demonstrate a sufficiently close relationship” and that there was no right to
recover damages for loss of consortium. Id. ¶ 13.

{40} Based on the holding in Wachocki, we examine separately the relationships between
Decedent and her parents and between Decedent and her siblings.

3.     Decedent’s Relationship With Her Parents

{41} Plaintiffs presented evidence that Decedent’s relationship with her parents was
extremely close, that Decedent had breakfast with her father twice a week, and that she kept
a bedroom at her parents’ house and stayed there every weekend. Plaintiffs also presented
evidence that Decedent’s family was very tight-knit, that when Decedent had free time she
spent it with her parents, and that Decedent was loving and protective of her parents.

{42} This evidence is not sufficient to demonstrate the most important factor under
Wachocki, that the relationship between Decedent and her parents was based on “mutual
dependence.” Although Decedent may have spent time at the home of her parents, she was
not a member of her parents’ household. Decedent was not involved in her parents’ day-to-
day decisions or fulfillment of everyday requirements. Decedent was provided with
significant support from her parents as well as the enjoyment of frequent meals and visits,
but those things do not qualify as mutual dependence. Therefore, the degree of mutual
dependence, if any, was not sufficient to meet the test established by the Supreme Court in
Wachocki.

4.     Decedent’s Relationship With Her Siblings

{43} Plaintiffs presented evidence that Decedent and her sister were the best of friends,
that they spoke almost daily, worked out together often, and that they would stay together
at their parents’ house on the weekends. There was evidence that Decedent’s relationship
with her brother was also very close, that they shared an interest in bicycling, and that they
had lived close to one another as adults. Again, the evidence presented by Plaintiffs is not
sufficient to show that her relationship with either her brother or her sister was based on
“mutual dependence.” Decedent and her siblings were not members of the same household,
and they were not together involved in day-to-day decisions. The evidence does not
establish that Decedent had a “mutually dependent” relationship with either her sister or her
brother.

{44} There is no question that losing a family member can be emotionally difficult, no
matter the circumstances, but the courts must take care not to throw the doors open to “broad
liability based essentially exclusively on [a] familial relationship rather than other qualities
exemplified by the ‘mutual dependence’ factors.” Wachocki v. Bernalillo Cnty. Sheriff’s
Dep’t, 2010-NMCA-021, ¶ 57, 147 N.M. 720, 228 P.3d 504. Viewing the evidence in the

                                              13
light most favorable to Plaintiffs, we conclude that, because the evidence was insufficient
to establish a right to recover for loss of consortium, it was error for the district court to deny
Defendants’ motion for directed verdict on this issue. See Sunwest Bank, 1992-NMSC-002,
¶ 9 (noting a directed verdict is appropriate only when there are no true issues of fact for the
jury).

III.    CONCLUSION

{45} For the foregoing reasons, we reverse and remand this case to the district court for
a new trial.

{46}    IT IS SO ORDERED.

                                                 ____________________________________
                                                 CYNTHIA A. FRY, Judge

I CONCUR:

____________________________________
RODERICK T. KENNEDY, Chief Judge

M. MONICA ZAMORA (dissenting).

ZAMORA, Judge (concurring in part and dissenting in part).

{47} I concur with the Majority that the district court erred in denying Defendants’ motion
for directed verdict on the issue of loss of consortium and directed verdict issues. I also agree
with the Majority’s analysis of the applicable independent intervening cause case law. The
application of our jurisprudence on the doctrine of independent intervening cause to this case
has been a difficult task. However, I am not persuaded that the independent intervening
cause instruction is appropriate here. I am concerned that by allowing the instruction, we are
realizing the concerns of the Torres court by unduly over-emphasizing the Defendants’
attempt to shift fault to the Decedent. For this reason, I respectfully dissent.

Decedent’s Suicide Was the Direct Result of Defendants’ Negligence

{48} Decedent’s act of suicide was a foreseeable risk created by Defendants’ negligence.
In the context of negligence, an “intervening cause” is “[a]n event that comes between the
initial event in a sequence and the end result, thereby altering the natural course of events
that might have connected a wrongful act to an injury.” Black’s Law Dictionary 250 (9th ed.
2009). “An independent intervening cause is one that operates on a condition produced by
an antecedent cause but in no way resulted from that cause.” Id. (emphasis in original
omitted). Independent intervening cause constitutes a complete defense. Torres, 1999-
NMSC-029, ¶ 19. In this case, the sequence of events began with Dr. Lopez-Colberg, aware

                                                14
of the manufacturer’s warning, prescribing a year’s worth of Paxil for Decedent without
ensuring arrangements for follow up with Decedent or to monitor Decedent’s mental health,
and ended with Decedent’s suicide. Decedent’s suicide was the direct result of Dr. Lopez-
Colberg’s negligence. Because the suicide was the final event in the chain of causation, not
an unrelated, outside force that came in and interrupted the sequence of events, it cannot be
an independent intervening cause.

Negligence Analysis Negates The Doctrine

{49} The special verdict reveals the jury considered the issues of duty, foreseeability,
proximate cause and cause in fact of decedent’s death, and plaintiff’s and defendant’s
comparative negligence guided by the tendered jury instructions. The evidence demonstrated
that this case presented a dispute over causation, an issue of fact the jury decided. See
Calkins v. Cox Estates, 1990-NMSC-044, ¶ 5, 110 N.M. 59, 792 P.2d 36 (noting causation
is a question of fact). “In New Mexico, negligence encompasses the concepts of
foreseeability of harm to the person injured and of a duty of care toward that person.”
Ramirez v. Armstrong, 1983-NMSC-104, ¶ 8,100 N.M. 538, 673 P.2d 822, overruled on
other grounds by Folz v. State, 1990-NMSC-075, ¶ 3, 110 N.M. 457, 797 P.2d 2460; see
also UJI 13-1601 Committee commentary (noting the definition of negligence instruction
“includes the indispensable element of foreseeability which is discussed in Ramirez”).
“Foreseeability is a critical and essential component of New Mexico’s duty analysis because
no one is bound to guard against or take measures to avert that which [she] would not
reasonably anticipate as likely to happen. [T]here can be no duty in relation to another
person absent foreseeability[.]” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 20 (second
alteration in original) (internal quotation marks and citations omitted).

{50} The three significant jury instructions tendered to the jury were UJI 13-
1601Negligence; definition; UJI 13-1603 Ordinary care; and UJI 13-305 Causation. UJI 13-
1601 states in pertinent part:

               An act, to be ‘negligence[,’] must be one which a reasonably prudent
       person would foresee as involving an unreasonable risk of injury to . . .
       herself or to another and which such a person, in the exercise of ordinary
       care, would not do.

               A failure to act, to be ‘negligence[,’] must be a failure to do an act
       which one is under a duty to do and which a reasonably prudent person, in
       the exercise of ordinary care, would do in order to prevent injury to . . .
       herself or to another.

(Alterations omitted). If Decedent’s suicide was not a foreseeable result, then the jury had
the option to find the treatment did not cause the suicide and, as a result, not assign any
liability to Defendants. UJI 13-1603 states in pertinent part: “As the risk of danger that
should reasonably be foreseen increases, the amount of care required also increases.” This

                                             15
instruction allowed the jury to consider whether Defendant Lopez-Colberg breached her duty
by prescribing the medication for an extended period of time without follow up and knowing
the potential for increase in suicidiality. UJI 13-305 states in pertinent part: “An act or
omission is a ‘cause’ of injury if it contributes to bringing about the injury, and if injury
would not have occurred without it.” The jury was able to consider whether the suicide was
a result of the undisclosed risk and lack of follow up care by her doctor, or whether Decedent
in a psychotic state or of her own free will took her own life.

{51} Foreseeability was an issue considered by the jury in connection with both causation
and standard of care. This consideration involved a resolution of the conflicting evidence
presented by the parties. Consequently, giving an instruction on independent intervening
cause unduly emphasizes the Defendants’ shift of fault to the Decedent by giving Defendants
multiple opportunities to shift or avoid liability. The jury necessarily found that Decedent’s
act of suicide was a foreseeable consequence of Defendants’ negligence by imposing some
liability on Defendants. The jury also considered Decedent’s comparative negligence by
assigning her liability as well.

{52} The “special relationship” exception to suicide as an independent intervening cause
applies to cases like this. Johnstone, 2006-NMCA-119, ¶¶ 10-11. There was a treatment
relationship between Decedent and Dr. Lopez-Colberg in which the doctor knew or had
reason to know of Decedent’s risk of suicide. There was also evidence presented for the jury
to consider and decide whether the Defendants’ tortious conduct induced Decedent’s mental
instability directly causing the suicide.

Independent Intervening Cause Doctrine Is Not Applicable In This Case

{53} Decedent’s suicide was the end result in the sequence of events and the question
before the jury was one of causation. The independent intervening cause doctrine has no
place in the analysis. In my view, the first two primary lessons noted by the Majority apply
to this case.2 Defendants’ argument of foreseeability, as a complete defense, necessarily
implicates Decedent’s negligence as the sole cause of her death. As discussed earlier, the
question before the jury was whether Defendants’ negligence was the cause in fact of
Decedent’s death, or causation. The Torres court noted “a trend in New Mexico toward
simplifying the complex task of the jury in deciding issues of causation” and warned that
“[t]he issue of independent intervening cause adds a complex layer of analysis to the jury’s
determination of proximate cause.” 1999-NMSC-029, ¶ 21. The Court limited the use of the
instruction because it “is sufficiently repetitive of the instruction on proximate cause and the


       2
        Notably, Chamberland states the independent intervening cause presupposes the
Defendant’s negligence and is in direct conflict with the Restatement (Second) of Torts, §
440 cmt. b. (1965) (“[T]here is no need of determining whether the actor’s antecedent
conduct was or was not a substantial factor in bringing about the harm.”). See Chamberland,
2001-NMCA 045, ¶ 19.

                                              16
task of apportioning fault that any potential for jury confusion and misdirection outweighs
its usefulness.” Id.

{54} Here, the Majority correctly points out that foreseeability is a jury issue and that a
finding of foreseeability precludes a finding of independent intervening cause. However,
foreseeability was argued by Defendants in connection with both causation and breach of
standard of care. So, instructing the jury on independent intervening cause in addition to the
other foreseeability questions is redundant and risks confusion to the jury. Because the jury
already necessarily found that Decedent’s suicide was foreseeable by imposing liability on
Defendant, remanding this case for a new trial and giving the independent intervening cause
instruction gives Defendants an unfair advantage by allowing them the opportunity to argue
foreseeability multiple times.

{55} The evidence at trial was directed at causation and the parties’ comparative fault.
Accordingly, the principles of Torres, 1999-NMSC-029, and Chamberland, 2001-NMCA-
045, apply directly to this case and a jury instruction on independent intervening cause is
precluded. With all due deference, I am concerned that the Majority’s holding will result in
confusion to the jury and inadvertent application of contributory negligence; the outcome
our Supreme Court explicitly cautioned us against in Torres. 1999-NMSC-029, ¶ 18.

{56}   For these reasons, I respectfully dissent.

                                              ____________________________________
                                              M. MONICA ZAMORA, Judge




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