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Montano v. Frezza

Supreme Court of New Mexico

March 13, 2017

KIMBERLY MONTAÑO, Plaintiff-Respondent,
ELDO FREZZA, M.D., Defendant-Petitioner, and LOVELACE INSURANCE COMPANY, a Domestic For-Profit Corporation, Defendant. and KIMBERLY MONTAÑO, Plaintiff-Petitioner,
ELDO FREZZA, M.D., Defendant-Respondent, and LOVELACE INSURANCE COMPANY, a Domestic For-Profit Corporation, Defendant. ORIGINAL PROCEEDING ON CERTIORARI 6 C. Shannon Bacon, District Judge

          Hinkle Shanor LLP William P. Slattery Dana Simmons Hardy Santa Fe, NM Office of the Attorney General of Texas John Campbell Barker, Deputy Solicitor General Lisa A. Bennett, Assistant Solicitor General Jose L. Valtzar, Assistant Attorney General Austin, TX for Petitioner Eldo Frezza, M.D.

          Jones, Snead, Wertheim & Clifford, P.A. Jerry Todd Wertheim Roxie P. Rawls-De Santiago Samuel C. Wolf Santa Fe, NM for Petitioner Kimberly Montaño.

          Windle Hood Norton Brittain & Jay, LLP Joseph L. Hood, Jr. El Paso, TX for Amicus Curiae University of Texas System

          Atwood, Malone, Turner & Sabin, P.A. Lee M. Rogers Jr. Quincy J. Perales Roswell, NM for Amici Curiae Texas Medical Liability Trust, et al.

          Lorenz Law Alice Tomlinson Lorenz Albuquerque, NM Hull Hendricks LLP Michael S. Hull Austin, TX for Amici Curiae New Mexico Medical Society, et al.

          Garcia Ives Nowara, LLC George L. Bach, Jr. Albuquerque, NM for Amicus Curiae New Mexico Trial Lawyers Association.


          EDWARD L. CHÁVEZ, Justice.

         {1} Can a New Mexico resident who has been injured by the negligence of a state- employed Texas surgeon name that surgeon as a defendant in a New Mexico lawsuit when Texas sovereign immunity laws would require that the lawsuit be dismissed? The answer to this question implicates principles of interstate comity, an issue that we have previously examined in Sam v. Sam, 2006-NMSC-022, 139 N.M. 474, 134 P.3d 761. Sam set forth guidelines for a court to assess when determining whether and to what extent it should recognize another state's sovereign immunity as a matter of comity. We initially presume that comity should be extended because cooperation and respect between states is important. However, this presumption is overcome and a New Mexico court need not fully extend comity if the sister state's law offends New Mexico public policy. In this case, we apply the Texas provision requiring that the case against the surgeon be dismissed because doing so does not contravene any strong countervailing New Mexico public policy.

         I. BACKGROUND

         {2} The background facts are taken from the complaint because when reviewing a motion to dismiss, we must "accept as true all well-pleaded factual allegations in the complaint and resolve all doubts in favor of the complaint's sufficiency." N.M. Pub. Sch. Ins. Auth. v. Arthur J. Gallagher & Co., 2008-NMSC-067, ¶ 11, 145 N.M. 316, 198 P.3d 342.

         {3} Kimberly Montaño, a New Mexico resident, sought bariatric surgery for her obesity in early 2004. At that time Eldo Frezza, M.D. was the only doctor from whom Montaño could receive that surgery and still be covered by her insurer. Montaño believed that she needed the procedure and that she could not afford it without medical insurance coverage.

         {4} Dr. Frezza was employed as a bariatric surgeon and professor and served as chief of bariatric surgery at Texas Tech University Health Sciences Center (Texas Tech Hospital) in Lubbock, Texas from June 2003 to August 2008. Texas Tech Hospital is a governmental unit of the State of Texas. See United States v. Tex. Tech Univ., 171 F.3d 279, 289 n.14 (5th Cir. 1999) ("The Eleventh Amendment cloaks Texas Tech University and Texas Tech University Health Sciences Center with sovereign immunity as state institutions."). The parties do not dispute that Dr. Frezza was acting within the scope of his employment at Texas Tech Hospital when he provided care to Montaño.

         {5} On February 3, 2004, Dr. Frezza performed laparoscopic gastric bypass surgery on Montaño at Texas Tech Hospital. Montaño began to suffer from abdominal pain at some unspecified time following the procedure. She returned to see Dr. Frezza several times. He told her that some discomfort was normal and assured her that everything was ok. Montaño was also admitted to various medical centers on multiple occasions for severe abdominal pain.

         {6} Six years after the surgery was performed, Montaño was admitted to Covenant Health System in Lubbock, Texas, where Dr. David Syn performed an esophagogastroduodenoscopy to determine the cause of her pain. Dr. Syn determined that the 2004 surgery performed by Dr. Frezza had left a tangled network of sutures in Montaño's gastric pouch and down the jejunal limb, which Dr. Syn diagnosed as the cause of her constant severe abdominal pain. Dr. Syn then performed a revision of the gastric bypass procedure that had been performed by Dr. Frezza.

         {7} In October 2011, Montaño filed a medical malpractice complaint in New Mexico naming Dr. Frezza as a defendant. Montaño alleged three separate causes of action against Dr. Frezza, claiming that he committed medical negligence and misled her regarding the risks of the procedure and the cause of her pain.

         {8} Dr. Frezza filed a motion to dismiss Montaño's complaint under Rule 1- 012(B)(6) NMRA for failure to state a claim upon which relief could be granted.[1] Dr. Frezza argued, in part, that the district court should (1) recognize and apply the Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001 to -.109 (1985, as amended through 2015) (TTCA) under principles of comity, and (2) dismiss the suit because Texas law prohibits suits against individual governmental employees and requires courts to dismiss such suits unless the plaintiff substitutes the governmental employer of the employee within thirty days of the motion. TTCA § 101.106(f).

         {9} The district court declined to extend comity and denied Dr. Frezza's motion to dismiss, finding that it would violate New Mexico public policy to apply Texas law to Montaño's claims. The Court of Appeals affirmed on this issue. Montaño v. Frezza, 2015-NMCA-069, ¶¶ 39, 41-42, 352 P.3d 666.

         {10} Montaño and Dr. Frezza each petitioned this Court for a writ of certiorari. Dr. Frezza asked us to review whether Texas law should be applied to this case under either New Mexico choice of law rules or comity. In turn, Montaño asked that we review the scope of the Court of Appeals' application of New Mexico law. We granted both petitions.[2] Montaño v. Frezza, 2015-NMCERT-006.

         II. COMITY

         {11} This case implicates Texas' sovereign immunity, and therefore it might be resolved through principles of comity. Comity is a doctrine under which a sovereign state chooses to recognize and apply the law of another sovereign state. Sam, 2006-NMSC-022, ¶ 8. The United States Supreme Court has long referred to a broad presumption of comity between the states that reflects states' unique relationship within the federal system. See Nevada v. Hall, 440 U.S. 410, 425 (1979) ("In the past, this Court has presumed that the States intended to adopt policies of broad comity toward one another."); see also Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 590 (1839) ("The intimate union of these states, as members of the same great political family; the deep and vital interests which bind them so closely together; should lead us, in the absence of proof to the contrary, to presume a greater degree of comity, and friendship, and kindness towards one another, than we should be authorized to presume between foreign nations.").

         {12} We have held that comity should be extended unless doing so would undermine New Mexico's own public policy. Sam, 2006-NMSC-022, ¶ 21; see also Hall, 440 U.S. at 422 ("[T]he Full Faith and Credit Clause does not require a State to apply another State's law in violation of its own legitimate public policy."). The law of the sister state must not only contravene New Mexico public policy, but be "sufficiently offensive" to that policy "to outweigh the principles of comity." Sam, 2006-NMSC-022, ¶ 19; see also Leszinske v. Poole, 1990-NMCA-088, ¶¶ 20-35, 110 N.M. 663, 798 P.2d 1049 (concluding that New Mexico's public policy of prohibiting a marriage between an uncle and a niece did not outweigh the principles of comity towards a foreign sovereign and the desirability of uniform recognition of marriages).

         {13} Therefore, public policy lies at the heart of our comity analysis. We have previously recognized that "it is the particular domain of the legislature, as the voice of the people, to make public policy, " and courts should interpret public policy "with the understanding that any misperception of the public mind [by courts] may be corrected shortly by the legislature." Torres v. State, 1995-NMSC-025, ¶ 10, 119 N.M. 609, 894 P.2d 386. As a result, we approach the comity analysis with a healthy respect for our Legislature's role as "[t]he predominant voice behind the declaration of [New Mexico] public policy" and with careful attention to legislative enactments embodying our state's policy choices. Hartford Ins. Co. v. Cline, 2006-NMSC-033, ¶ 8, 140 N.M. 16, 139 P.3d 176.

         {14} Sam is the seminal New Mexico case with respect to the comity issues presented here. To determine whether it was appropriate to extend comity and fully enforce another state's sovereign immunity provisions in that case, we examined four factors: "(1) whether the forum state would enjoy similar immunity under similar circumstances, (2) whether the state sued has or is likely to extend immunity to other states, (3) whether the forum state has a strong interest in litigating the case, and (4) whether extending immunity would prevent forum shopping." 2006-NMSC-022, ¶ 22 (citations omitted). These factors are guidelines that assist courts in answering the ultimate question of whether extending comity would violate New Mexico public policy. See id.

         A.Standard of ...

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