United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
case is before the Court on Plaintiff's Motion to
Exclude Defendant's Expert, George A. Diaz [Doc. 79]
and Defendant's Motion for Leave to File
Surreply [Doc. 89]. In addition to the motion to exclude
the expert, the Court has considered the response [Doc. 84],
the reply [Doc. 88], and the surreply [Doc. 89-1], as well as
the motion to exclude the expert. Although the motion for
leave to file surreply is opposed, Plaintiff filed no
response in opposition to it. As set forth below, the Court
concludes that Defendant should be permitted to file its
surreply, and the Plaintiff's motion to exclude the
expert should be denied.
Motion for Surreply
filing of a surreply requires leave of the Court.”
D.N.M.LR-Civ. 7.4(b). When a movant includes new material or
new arguments in its reply brief, the court must either
permit the nonmovant to file a surreply, or disregard the new
material or arguments in ruling on the motion. Doebele v.
Sprint/United Mgmt. Co., 342 F.3d 1117, 1139 n.13 (10th
Cir. 2003); S.E.C. v. Goldstone, 2014 WL 6065611 at
*2 (D.N.M. 2014) (“A surreply is appropriate and should
be allowed where new arguments are raised in a reply
Court agrees with Defendant that the Plaintiff, Laura Jean
Joe-Cruz (“Joe-Cruz”), has raised new issues in
her reply brief that the Defendant should be permitted to
address. Therefore, the Court will consider Defendant's
proposed surreply, filed as Doc. 89-1.
Motion to Exclude Expert
medical malpractice case, Joe-Cruz moves the Court for an
order excluding from evidence all opinions by the
Defendant's expert, Dr. George A. Diaz, pursuant to Rule
702 of the Federal Rules of Evidence. As grounds for this
motion, Joe-Cruz contends that Dr. Diaz is not qualified to
express an opinion regarding whether Defendant met the
standard of care in her treatment because he is an expert in
infectious diseases instead of emergency medicine.
has alleged that on January 9, 2014, after feeling ill for
two days, she went to the Acoma-Canoncito-Laguna Service Unit
(hereafter, “CHC”), located in Cibola County, New
Mexico, for medical treatment. Amended Complaint, Doc. 27.
According to the Amended Complaint, she presented with
symptoms common to influenza and was discharged that day with
instructions to take Tylenol and fluids. The next day,
Joe-Cruz returned to CHC feeling weak, feverish, and having
difficulty breathing. Donita Demontiney, P.A.-C, evaluated
Joe-Cruz. Noting that Joe-Cruz appeared ill, had yellow
pulmonary expectorate, bilateral wheezing, and rhonchi,
Demontiney refilled Joe-Cruz's asthma inhaler
prescription and wrote a new prescription for the antibiotic
Azithromycin. Demontiney also performed a flu swab on
Joe-Cruz, which was negative. Doc. 27; Doc. 79 at 2. On
January 13, 2014, Joe-Cruz traveled by ambulance to
Presbyterian hospital in Albuquerque, New Mexico. She was in
acute respiratory failure and fulminant septic shock. There,
she was diagnosed with H1N1 influenza and secondary bacterial
pneumonia. Joe-Cruz was intubated and put on ventilator
support. She was discharged from the hospital on February 28,
Diaz is a physician who specializes in infectious diseases.
Among other qualifications, he is presently the Section Chief
for Infectious Diseases at Providence Regional Medical Center
Everett; the owner of Everett Infectious Diseases, PLLC; and
a lecturer for University of Washington medical students.
Doc. 84-1. From 2010 to 2014, Dr. Diaz served as the Co-Chair
for the Clinical Advancement Team, Infectious Diseases.
Id. He has completed a fellowship in infectious
diseases, and from 2002-2005 he served as Medical Officer of
the Day at Fort Harrison Veteran's Administration in
Helena, Montana. Id. He has worked in urgent care
and emergency room settings. Doc. 89-1 at pp. 10-15 of 15.
Rule of Evidence 702 governs the admissibility of expert
testimony. Fed.R.Evid. 702. A witness, qualified by
knowledge, skill, experience, training, or education, may
offer an opinion so long as the following conditions are met:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence ...