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.
Snead, Wertheim & Clifford, P.A. Jerry Todd Wertheim
Roxie P. Rawls-De Santiago Samuel C. Wolf Santa Fe, NM for
Petitioner Kimberly Montaño.
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.
Law Alice Tomlinson Lorenz Albuquerque, NM Hull Hendricks LLP
Michael S. Hull Austin, TX for Amici Curiae New Mexico
Medical Society, et al.
Ives Nowara, LLC George L. Bach, Jr. Albuquerque, NM for
Amicus Curiae New Mexico Trial Lawyers Association.
L. CHÁVEZ, Justice.
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
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.
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.
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.
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.
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.
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.
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. 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).
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.
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. Montaño v. Frezza,
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
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).
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.
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 ...